• Ronald A. Flate

Child custody, Move-Away Orders and California Law

Dear Clients and Friends, In the 2004 family law case of Marriage of LaMusga the court said: “Among the factors that the court ordinarily should consider when deciding whether to modify a custody order in light of the custodial parent’s proposal to change the residence of the child are the following: the children’s interest in stability and continuity in the custodial arrangement; the distance of the move; the age of the children; the children’s relationship with both parents; the relationship between the parents including, but not limited to, their ability to communicate and cooperate effectively and their willingness to put the interests of the children above their individual interests; the wishes of the children if they are mature enough for such an inquiry to be appropriate; the reasons for the proposed move; and the extent to which the parents currently are sharing custody.”

LaMusga continues to be our family law guide for deciding whether to modify a custody order in light of a parent’s proposal to change the residence of the child. The following is a checklist of the LaMusga factors family courts will consider:

  1. The Child’s Interest in Stability and Continuity in the Custodial Arrangement. In other words, the court will look at the current custodial schedule and how much the move would disrupt it.

  2. A Significant Change in Circumstances. If the non-custodial parent is seeking to prevent the child from relocating with the custodial, relocating parent, there must be a significant change in circumstance such that a custody change would be in the best interest of the child. Pursuant to Family Code 7501 the change must be so substantial that it even overcomes the automatic relocation right that a parent having sole custody is presumed to have.

  3. The Distance of the Move. How far are we talking? What will the travel time be for visitation? Who will pay for travel costs and how much will they be?

  4. The Age of the Child. Younger children are still forming bonds with their caregivers and have different developmental needs than older children. On the other hand, older children generally have established bonds that may be able to withstand longer absences.

  5. The Social Impact of the Move on the Child. The court will consider the impact of removing the child from his or her established social circles, community, and friendships.

  6. The Impact on the Child’s Education. Removing a child from school in the middle of the school year or proposing to move a high school junior across the country may not be best for the child’s education, and the court will consider these kinds of issues in its analysis of the situation.

  7. The Child’s Relationship with Both Parents. How bonded is the child to each parent? Would extended periods away from one of the parents be detrimental to the child?

  8. The Relationship Between Parents. This includes their ability to communicate and cooperate effectively, and their willingness to put the interests of the child above their individual interests. The court will look at how likely the moving parent is to be supportive of the relationship between the non-moving parent and the child. Chances are, if parents can’t co-parent from 2 miles apart, 2,000 more miles won’t solve the problem.

  9. The Wishes of the Child. The court will consider the wishes of the child if he or she is mature enough for such an inquiry to be appropriate.

  10. The Reason for the Move. Is there a legitimate job offer or is the custodial parent just looking to get away from the non-custodial parent?

  11. The Extent to Which the Parents are Currently Sharing Custody. Changing a child’s routine from week on/week off to only seeing the non-custodial parent for two weeks over Summer Break is less likely to be in a child’s best interest than going from, for example, alternating weekends to two months during Summer Break, and a couple of weeks over Winter Break).

Move-aways are generally “all or nothing” matters, since there is very little middle ground when one parent proposes to move the child and the other parent is requesting the opposite. For this reason, move-away cases typically proceed to trial and/or a custody evaluation with experienced family law attorneys representing each of the parties.As experienced custody attorneys we have and continue to successfully represent parents with their move-away cases and we invite you to contact us to see if we can be of help.

Best,Ron

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