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Custody Cases—The Move-Away Case. Part 1: Child’s Need for Stability & Continuity

Approximately 65% of the inquiries I receive in my California Family Law practice deal with custody cases.  As many people reading this blog post already know, custody cases are the most heart-wrenching, time-consuming and most expensive cases in California family law courts.  These blog is part of a series I will be writing on over the next few weeks regarding California family law custody move-away cases. Part 1 deals with the necessity of the court undertaking an analysis of the child’s need for stability and continuity—which is a major factor to be determined by a judge in California move-away cases.

The Set Up Leading to Move-Away Cases

Scenario 1

Mom and dad have an order that awards the parents joint legal custody and joint physical custody with visitation being about 50/50.  A few weeks, months or years passes and one of the parents decides to relocate. There are many reasons a parent may wish to relocate. Some examples include, for instance, to “return home” to where family and friends reside, a new job, to distance themselves from their ex-spouse, and so on. In some instances, the wish to relocate to another area has nothing to do with practical reasons, and everything to do with that party being spiteful and attempting to take any and all efforts to deprive the other parent of the child.

Scenario 2

The parents share joint legal custody and one parent (Parent A) has sole physical custody. Parent A decides to relocate to the East coast for a new job a few months after the parties’ divorce has been dissolved.  If Parent A does not file a motion requesting permission to leave with the child, then Parent B will usually file a motion with the court, asking for the court, in most cases, to restrain Parent A from taking the child with him or her to the East coast.  For Parent A, there is a good chance the court will grant Parent A with permission to move away if the court finds it is in the child’s best interest; however, there are times when the court will determine that it is not in the child’s best interests for Parent A to relocate with the child. For example, for the exception of Parent A, all family and friends reside in the Bay Area, or, the child has an illness that requires specialized care that only doctors in the Bay Area can provide. Another example is if Parent A’s new job limits or compromises his/her ability to properly care for the child; for instance, Parent A is completing  a medical residency, and so on.

Relocation Distance

Relocation can be as little as 20 minutes—it does not need to be out of state or out of the U.S.  The bottom line is this: the distance is such that it is no longer practical or feasible for the parents to share joint legal custody, joint physical custody or 50/50 visitation.  For example, before the move-away, the parents lived a few blocks away; now, Parent A wishes to relocate from San Francisco to Santa Rosa.  If the child is of school-age, it is no longer practical to keep the status quo. Hence, many adjustments will need to be made should Parent A decide to leave the area.

The parent wishing to relocate has one of two options: 1) talking with the other parent and reaching a written  agreement that Parent A is allowed to relocate with the child; or, 2) if no agreement can be reached, either Parent A and/or Parent B must file a motion with the court to resolve the dispute.

Regardless of the reason, the outcome is usually one of two outcomes:

  1. Parent A, the party wishing to relocate, files motion and asks the court permission to relocate. Also, in many instances, Parent A asks permission for change of custody when filing their motion for move-away; or,
  2. Parent B, hearing that Parent A intends to move away, files a motion with the court to restrain the parent from leaving the area until the court can make a determination on party B’s motion for restraining-orders (and, as it usually happens, Party A’s subsequently-filed motion move-away and change of custody.)

It is important to note that while the parent is free to leave the area, the child is not. This means that the parent is free to leave the area to take the new job in another state, but must leave the child behind—unless the parent has a court order allowing the child to also leave the area.

Child’s Need for Stability and Continuity

The courts believe that it is vitally important and in the best interests of the child to assure that the child will have stability and continuity in their lives, as well as, whenever possible, continuing and ongoing visitation with both parents.  Of course, when one parent decides to relocate, it’s not easy or practical for the court to fashion court orders that will equally favor both parents and the needs of the child.

Although the child’s need for stability and continuity is always a major factor in awarding custody, it becomes increasingly important to maintain stability and continuity for the child when the child has lived with one parent for a significant period of time.  In such cases, the need will often, however not always, dictate that maintenance of the existing custody arrangement in the child’s best interest.  (Burchard v Garay (1986) 42 C3d 531, 538, 229 CR 800).  This emphasis is of particular importance in so-called “move away” cases. An example is when one parent seeks to move a substantial distance and to take the child with him or her.

Service Members

Service Members who are activated to the United States military duty or National Guard service and are deployed out of state are granted special consideration regarding child support, custody and visitation orders.  Keep this in mind if you or the other parent are a service member.

If you wish to discuss your case with a qualified family-law attorney, please contact us.

Other Blogs in this series–“Custody Cases–The Move-Away Case”:

Part 2–When the Parent  Moving Away Has Sole Physical Custody

Part 3–Custody Cases—The Move-Away Case.

Part 4–Part 4: Emotional Bonds & Race Effecting Move-Away Cases & Sexual Conduct of Parents

Part 5–Sexual Orientation of the Parent(s)

Part 6–Religious Practices

Legal Disclaimer: Everything on this blog pertains to California law only and is written by an attorney licensed to practice only in the State of California. Further, information provided on this blog post or this website is to be used for general informational purposes only and is not to be construed as legal advice in any way shape or form. The underlying purpose of this blog post is to provide the reader with general information to use in talking with an attorney and/or as a general guide when conducting  their own research on their  particular legal matter.  Finally, keep in mind that if you are not a California resident and/or your matter is not based in California, the laws may differ in your state. In such cases, it is recommended that you seek legal assistance and/or review information that relates to the laws of your state.

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