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What You Need to Know Before Relocating with your Child (Move Away)

On Behalf of | Jul 15, 2020 | Child Custody, Divorce

Planning to relocate to another city, state, or even country with your child may not be as easy as picking up your things and moving when you already have custody orders in place. It is a common misconception that the parent with primary custody can move with their child wherever and whenever they want, without getting permission from either the other parent or the court. Although a parent has a right to reside wherever they wish, that parent cannot relocate with their child without taking additional action.

When a parenting plan or custody orders are put into place, they will state what is required if a parent wishes to relocate with their child outside of their current county of residence. This is important to note because even if you are not thinking about moving when your original orders are made, the future may bring an unexpected opportunity causing you to contemplate a change in residence. Generally, to relocate with your child, you need a written agreement from the other parent or a court order authorizing the move. The courts consider moving with your child as a significant adjustment that can disrupt the current parenting schedule, especially if the move would be to a different state or country and leaving the other parent behind. Therefore, the non-moving parent usually wants a say in whether the child can move, what the new parenting plan will look like, how to decide on the child’s school or doctors from a distance, etc.

In move away cases, the Court applies two important legal cases when determining whether a child should be allowed to move with a parent: In re Marriage of Burgess (1996) and In re Marriage of LaMusga (2004).  For international move away cases, the courts will apply additional factors, making the need for an attorney even more necessary. Depending on your particular situation, the court will apply either a “best interest” or “change of circumstances” analysis.

Under a best interest analysis, the court applies the following factors outlined in Family Code Section 3011:

  • Health, safety, and welfare of the child;
  • History of abuse;
  • Nature and amount of contact with both parents; and
  • History of alcohol or drug abuse.

Under a change of circumstances analysis, in addition to the factors under Family Code Section 3011, the court also determines whether there has been a material change of circumstances that would make it necessary to modify the current parenting schedule.

In addition to applying either a change of circumstances analysis and/or Family Code Section 3011, in all move away cases, the court must assess whether the relocation would be detrimental to the child and whether custody should be modified. In order to make this assessment, the court uses the following factors laid out in the case of In re Marriage of La Musga:

  • The child’s interest in stability and continuity in the custodial arrangement;
  • Distance of the move;
  • The child’s age;
  • The child’s relationship with both parents;
  • The relationship between the parents, whether they co-parent;
  • The child’s wishes;
  • Reason for the move; and
  • The extent to which the parents currently are sharing custody.

Move away cases are often complicated and can take months to complete if court intervention is necessary. If you are thinking about relocating with your child, it is best to plan ahead and speak with an experienced Family Law attorney as soon as you believe a possible move may be in your future.

By:  Anna Encinias, Esq., Attorney at Contreras Law Firm

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