One of the more emotionally charged and legally complex issues is what we call a “move-away” case — when one parent wants to relocate out of state with a child. These cases often arise after a divorce or separation, and they can be especially difficult when both parents share custody and wish to remain active in the child’s life.
If you're considering a move with your child — or your co-parent has informed you of their plans to relocate — it's essential to understand how California law approaches these situations. Below is a detailed overview of the legal framework, court process, and key considerations in move-away cases.
What Is a Move-Away Case?
A move-away case arises when a custodial parent seeks to relocate with the child in a way that would significantly impact the other parent’s custodial time or relationship with the child. In many cases, the move is to another state, but even long-distance moves within California can qualify.
The core issue in these cases is whether the proposed relocation is in the best interest of the child. That’s the standard by which the court evaluates nearly all custody-related decisions.
Legal Framework and Burden of Proof
In California, the legal analysis in a move-away case depends heavily on the type of custody order currently in place:
1. Sole Physical Custody
If one parent has sole physical custody, they generally have more flexibility to move. The custodial parent has what courts refer to as a presumptive right to relocate, and the burden is on the non-custodial parent to prove that the move would be detrimental to the child.
2. Joint Physical Custody
If the parents share joint physical custody, the relocating parent does not have a presumptive right to move. In these situations, the parent requesting the move has the burden of proving that the relocation is in the child’s best interest.
This is often the more contentious scenario, as courts must determine whether the existing custody arrangement should be modified and whether the move will benefit the child overall.
What the Court Considers: Best Interest of the Child
The best interest of the child is the controlling legal standard. Courts are less concerned with the interests or desires of the parents and more focused on how the move will affect the child’s stability, relationships, and overall well-being.
Some key factors the court will evaluate include:
- The child’s relationship with both parents
- The reason for the proposed move (e.g., job opportunity, closer to extended family, better schools)
- The child’s age and maturity
- The distance of the move and the logistics of maintaining visitation
- The existing custody and visitation arrangement
- Impact on the child’s emotional, academic, and social development
- Whether the move would hinder the non-moving parent’s ability to maintain a meaningful relationship with the child
Courts may also take into account the child’s preference if the child is of sufficient age and maturity to express a reasoned opinion.
The Legal Process for a Move-Away
If you’re the parent seeking to relocate:
- File a Request for Order (RFO): You must formally petition the court to modify the existing custody order to permit the relocation.
- Serve the other parent: Just like with any court proceeding, the other parent must be served and given the opportunity to respond.
- Court hearing: The judge may schedule a hearing or even a full evidentiary trial, especially if the facts are contested.
- Custody evaluation or mediation: The court may order a child custody evaluation under Evidence Code §730 or refer the matter to Family Court Services for mediation.
- Judicial decision: Ultimately, the judge will weigh all factors and issue a ruling that serves the child’s best interest.
If you’re the parent opposing the move, you must be prepared to present compelling evidence showing that the relocation would be harmful to the child or significantly disrupt the current custodial relationship.
A Word of Caution: Do Not Relocate Without Permission
Do not move out of state with your child without court approval or the other parent’s written consent. Doing so can result in serious consequences, including contempt of court, loss of custody, or even criminal charges for parental kidnapping.
Practical Advice from a Southern California Family Law Attorney
Move-away cases are some of the most nuanced and fact-specific matters in family law. Whether you’re the parent seeking to move or the one opposing it, here are a few tips:
- Plan early. The courts do not rush these decisions, and the legal process can take months.
- Be realistic. Focus on what’s best for your child, not just what’s best for you.
- Gather documentation. School data, housing plans, and evidence of job offers or support networks can help support your case.
- Stay child-focused. Judges notice when one parent appears to be prioritizing their own interests over the child’s needs.
Conclusion
If you're facing a move-away issue in Southern California, I cannot overstate the importance of working with a knowledgeable family law attorney. These cases are emotionally challenging, legally intricate, and require a clear, strategic approach. As always, the court’s primary concern will be the child’s well-being — and ensuring that both parents can maintain a meaningful presence in the child’s life whenever possible.
Need help navigating a potential move-away case? Contact my office to schedule a consultation and discuss the best way to protect your parental rights and your child’s future.
Disclaimer: This blog post is for informational purposes only and does not constitute legal advice. Consult a qualified attorney regarding your specific circumstances.