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The Effect of Moving on Child Custody in California

Move-away disputes can be among the most wrenching parents—and courts—face

We live in a shrinking world, with access to opportunities across the country and around the globe. It’s common for people to relocate based on job transfers, improved earning potential, relationships, family, or simply the promise of a fresh start. But what happens when you are divorced with children and want to move to a new location? One parent inevitably loses physical access to their child, and the child to that parent, when geographic distance prevents regular contact. This has become an increasingly common and complex issue for family courts.

 
California move-away custody cases are governed by a mix of statutes and continually evolving court decisions that guide judges to make highly individualized determinations. Outcomes are rarely predictable. Unless both parents agree to the move and the terms of custody changes, a relocating parent must receive court approval to move with a child, whether within or outside California. Moving “away” is considered relocating a distance that will disrupt the current custodial arrangement, generally 50 miles or more. 
 
The parent anticipating such a move must provide at least 45 days’ notice of their plans to the non-custodial parent. If there is not yet a permanent custody order in place, the court will incorporate consideration of relocating the child as part of its standard “best interests of the child” assessment. Where there has been a final child custody order, the matter is handled as a modification and the family court will assess the request in light of the existing parenting plan. The parent remaining behind may file a motion with the court for modification of child custody, or the moving parent may make a move-away request asking permission to move with the child. The court cannot restrict the right of the parent to move, but makes a determination on whether they may move the child.
 
As a general rule, where the parent seeking to relocate has primary physical custody, it will be more likely the court will approve the move. Where there is shared physical custody, the court looks to the child’s best interests, through consideration of a number of factors—the biggest being that the move is not detrimental to the child.
 

Factors the Court Considers:

  • The distance of the move, and the availability and cost of travel for visitation
  • The reason for the move (not seeking to deprive the other parent of access to the child)
  • How much time each parent currently spends with the child, and the child’s relationship with each parent
  • The age, needs and preferences of the child
  • Community and family ties in both the current and proposed locations
  • Which parent is more likely to encourage frequent and continuing contact with the other parent
There are several California family court cases that provide additional guidance regarding factual particularities, such as relocating to another country, grandparent interests, extended family and antipathy between the parties, or potential separation of siblings.
 
Ultimately, these are painful and difficult matters for all involved, and California courts often seek the input of custody evaluators to assist in their conclusions. If you foresee a move-away custody situation, it’s in your interest to establish a plan with a family law attorney with expertise in these matters, sooner rather than later. You should ask for legal advice from a California family law attorney who can explain your parental rights, relocation laws and visitation rights. If you’d like more general information about this area of the law, see our custody and visitation law overview.

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