You’ve been through a divorce and the parent who has custody of your children decides to relocate, whether for a better job opportunity or because of a new love interest. Can the custodial parent just up and move, or are there legal considerations? What rights do the non-custodial parent have to challenge the move?
A lot will depend on the type of custody and parenting time agreement that was agreed to, or court-ordered, as part of the divorce. A sole custody relationship is going to afford more latitude to the parent with custody than a joint custody relationship would.
In any event, a move away by the custodial parent of more than 50 miles can disrupt the other parent’s joint custody or visitation rights, and the courts may have a say.
If you’re a divorced parent opting to relocate with your children, or on the other side, a non-custodial parent facing the relocation of your children, you will need to consult with a family law attorney to make sure everyone’s rights are respected.
If you’re in Los Angeles, or in the counties surrounding the city, including Orange, Ventura, San Bernardino, Riverside, and San Diego, contact the Law Office of Karen S. Brown. Karen S. Brown is a Certified Legal Specialist in Family Law, who will counsel you on your options and strive with you to achieve the best possible outcome for you and your children.
Relocating With Your Children
For parents who have never been married or as a result of divorce, a parenting plan will be put in place or approved by the courts. Generally, the parenting plan will decide who has physical custody and who has legal custody to make decisions for the child – where to go to school and who their doctors are, for example.
To complicate matters, there are different types of custody that can be awarded: to one parent – sole custody – or to both parents – joint custody. Even if both parents share physical custody, one parent may be named the custodial parent, thus complicating matters further.
When it comes to the parent with physical custody deciding to relocate with the children, the courts cannot stop the physical move, but they can decide to award sole custody to the non-relocating parent if it is in the “best interests” of the children.
In making its assessment, the courts will look beyond the wording of the parenting agreement to assess how much time, and how many contributions, each parent makes toward the upbringing of the children. If the objecting parent’s time-share percent is 30 or less, the courts generally will favor the custodial parent. If the time-share percentage is 45 percent or more, then the courts will delve further to determine actual involvement.
California law does require that the parent who wishes to relocate provide 45 days advance notice of any move that will last 30 days or more. This allows both parents time to work out a new custodial/visitation agreement that will factor in the relocation.
It also allows the non-moving parent the opportunity to seek a court order to modify the custody agreement, in effect, transferring custody to the non-moving parent. The custodial parent, in response, can seek a court-sanctioned move-away order.
If one parent objects to the move and seeks reversal of custody, a hearing will be scheduled. The burden of proof lies solely with the objecting (non-moving) parent to show that the move will be detrimental to the child(ren) and that a change of custody would be in the child’s (or children’s) best interest.
Factors the court will consider include:
- The distance of the proposed move
- The child’s or children’s need for continuity and stability
- Possible harm resulting from the proposed move