For many people, the most challenging part of moving is finding a new place to live. However, for parents who share child custody, that is just the start of the process. If you have joint custody of your children, you may need to get your co-parent’s approval, or the court’s approval before you can move away. This can be true even if you have the majority of the custodial timeshare.
If you are considering a move, you should understand the demands of moving with a custody order. Below, we discuss how these orders can restrict your ability to relocate and how to pursue move-away orders if necessary.
California Child Custody Order Restrictions on Parental Moves
Custody orders are intended to provide a definitive plan for co-parents to follow regarding their children, regardless of their personal disagreements. These orders are intended to provide clear instructions regarding physical and legal custody. Physical custody refers to the amount of time the children are in each parent’s custodial care and is at the root of move-away restrictions. In contrast, legal custody covers each parent’s right to make legal, educational, medical, and lifestyle decisions for their child.
California child custody orders generally also include restrictions on the parents’ rights when they have custody of their children. For example, many orders require one co-parent to receive permission from the other before doing the following:
- Traveling out of the state or country
- Traveling at times that would violate court-ordered visitation or parenting time of the other parent
- Moving far enough that it could impact the ability to follow the court-ordered custodial parenting time of the other parent
Specifically, California Family Code Sec. 3024 states that “the court may specify that a parent shall notify the other parent if the parent plans to change the residence of the child for more than 30 days, unless there is prior written agreement to the removal. The notice […] shall be provided within a minimum of 45 days before the proposed change of residence so as to allow time for mediation of a new agreement concerning custody.”
These restrictions prohibit parents from moving children too far away from the other parent in violation of the other person’s right to spend time with their children. However, these restrictions also make it more complicated for parents to move, even if it is in their children’s best interests.
How Relocation Orders Work in California
If the other parent does not agree to the child moving, then it is likely that the parent seeking to relocate with the child will need to obtain a Relocation Order from the court in order to do so. Relocation Orders are court orders that permit one custodial parent to move with a child despite the other parent’s objections. In general, a Relocation Order may be required if one parent has joint custody, or even if a parent has the majority of custodial time, because they are moving far enough that it may affect the custodial time of the other parent with the children. This is typically considered to be a distance of 50 miles or more, though there is no specific distance as to what constitutes a relocation, and this distance may be adjusted at the court’s discretion.
A parent may pursue a Relocation Order if their co-parent is likely to object to the move or if the existing order states that court permission is necessary before a relocation may occur. The court may require the parents to draft a new proposed parenting plan while maintaining the current custodial division.
In pursuing a Relocation Order, the parent seeking to relocate must show that the move is in the child’s best interest. There are many reasons why a parent may choose to move that also benefit their children, such as gaining more living space or relocating for a better-paying job. If the parent seeking to move can provide evidence that the move is in the best interests of the children and not to their detriment, the Relocation Order will likely be granted unless the other party can refute the claim, such as by showing credible evidence that the move is solely to thwart the other parent’s time with the children..
California Precedent on Moving With Child Custody
Once a parent receives notice that their co-parent intends to relocate, they may have the opportunity to object to the move. The precedent set in In re Marriage of Burgess (1996) 13 Cal.4th 25, 51 states that the non-moving parent may object to the move if it affects the parenting plan. In this case, the Court must approach the matter de novo, creating a new custodial timeshare order based on the moving parent’s new residence and the childrens’ best interests.
However, In re Marriage of Burgess only permits this when parents spend similar amounts of time with the child. Even if the order calls the relationship joint physical custody, if a child primarily spends time with one parent, that party is presumed to have the right to change their physical residence. This is reaffirmed In Re Marriage of LaMusga (2004) 32 Cal.4th 1072, in which it was found that parents without primary custody must prove that a move is not in the child’s best interest to prevent the move. However, the amount of custodial time that creates “primary” custodial time can be in dispute among parents and even different courts.
These ruling and nuances, combined with California Family Code Sec. 7501, means that parents with primary or sole custody are unlikely to require their co-parent’s approval to change residences. However, they must still notify their co-parent, who may file an objection. Any custodial parent planning to move with their children would benefit from consulting an experienced family law attorney to ensure that they comply with state law and their order before proceeding.
Empathetic Legal Counsel for Child Custody Relocation Orders
Sharing custody of your children can make routine changes, such as moving to a new home, more complex. It is best to consult an experienced family law attorney, such as the experts at Flicker, Kerin, Kruger & Bissada LLP, to understand the impact of a relocation on your custody order. Our knowledgeable team has years of experience advocating for parents and children in California relocation situations. Learn more about how we can assist with your relocation concerns by calling our Menlo Park or San Ramon offices or by sending us an email.