Am I Allowed to Move Away With My Child During (or After) my Divorce?

One of the most difficult situations parents may encounter during a divorce or custody case is when one parent desires to move a significant distance and take their minor children with them.  This can make continuing and frequent contact with other parent a challenge.  The move can also make it difficult for the other parent to remain involved in the child’s education, health, and other important life events.  In this situation, if the other party does not agree to the move, the party wishing to relocate with the minor child must file a motion with the Court requesting permission to move with the minor child.

The applicable law in a move-away case differs depending on the custodial arrangement.  When one parent has Sole Physical Custody, there is a presumption that they may move away with the minor child, and the objecting parent bears the burden of proving that the move would be detrimental to the best interests of the child(ren).  If the parent opposing the move can make a showing that the move would be detrimental, the Court must take into consideration certain factors articulated in Marriage of LaMusga.  Those factors are:

  • The children’s interest in stability and continuity in existing arrangement,
  • The distance of the move,
  • The age of the children,
  • The children’s relationship with both parents,
  • The relationship between the parents and ability to communicate,
  • The wishes of the children if they are age appropriate,
  • The extent to which the parents are sharing custody, and
  • The reasons for the proposed move. Marriage of LaMusga (2004) 32 Cal.App.4th 1072.

In situations where parents share joint physical custody, the requirement is a de novo custody review.  In a de novo review there are no presumptions.  The Court makes the decision based on what arrangement is in the best interest of the child(ren).

If the actual custodial arrangement does not reflect the order, the court can look at the actual arrangement rather than the order.  In re Marriage of Lasich (2002) 99 Cal. App. 4th 704.  In this case, although the order specified joint physical custody, Mother had the children 80% of the time.  The Court applied the presumption that Mother could move with the children, placing the burden on Father to convince the court that the move would be detrimental to the children.

Practically speaking, if a move-away request is granted, the Court may expect that the time missed by the non-custodial parent throughout the school year will be made up with longer blocks of time during holidays and summer breaks.  The Court may also order scheduled on-line chats or telephone calls.  The Court can also order the moving parent to share in some, or all, of the travel expenses associated with the minor child’s traveling to visit the other parent.

If you are contemplating moving away with your minor child, or if the co-parent of your child has indicated that they plan to do so, be sure to contact an experienced family law attorney to discuss your rights and options.  You can Contact Us to schedule a free consultation to discuss your case with one of our attorneys.


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