Divorce is a tough and emotionally painful process to go through, and when there are children involved, the stakes only increase. What happens when a custodial parent wants to move away with their child in tow? How do you contest it or defend it?
Having a divorce attorney can help you navigate these grey areas to the letter of the law and determine the best course of action for you and your family.
What Constitutes ‘Custody’?
Before we can discuss moving away, it would be helpful to clarify what custody means, and the different kinds of custody a parent or caretaker can have.
When a couple divorces, they reach an agreement on where their children will live and how visitation works between the two households. If a decision can’t be reached, a judge will determine what is in the child’s best interest. From there, custody can be unique based on the conclusions reached by the court and the couple.
This determines which of the parents the child in question will live with. This is the ‘custodial’ parent, and they have the specific right to have their child in their home. The other parent is the ‘noncustodial’ parent, and although they have visitation rights, they have more limitations than the custodial parent.
Sole or Joint Physical Custody
“Joint physical custody” occurs when parents both spend equal time with their child, such as having the child on school nights versus having them on weekends.
However “sole physical custody” is when the everyday care and nurturing of the child falls to one parent, while the other works within their visitation rights.
This refers to whichever parent can make legal decisions for the child. They’re the one who has the final say in regular healthcare, school and education, and religious decisions.
Joint or Sole Legal Custody
In California, both parents receive joint legal custody for their child unless one parent is deemed unfit to make the necessary decisions, if it’s in the best interest of the child for one parent to make the legal decisions, or if the parents cannot get along to make these necessary choices.
If this is the case, then the parent deemed fit would have sole legal custody.
Is A Custodial Parent Allowed To Move Away With A Child?
The custodial parent is allowed to move away with a child as long as this move won’t interfere with the child’s best interests.
A noncustodial parent in a joint custody situation would need to have an adjusted court order to move out of state with their child.
Providing Notice and Altering Court Order
In order to move out of state with the child, the custodial parent must provide a written moving away notice if they will be away for more than 30 days. This notice must be sent at least 45 days prior to the move so that both parents can work out their new custody agreement.
However, if the noncustodial parent disagrees with the move, they can file an objection and request that the court modify the custody as it currently stands.
What Happens In Court During A ‘move-away’ Situation?
Don’t be caught unaware by what goes on in court, a family law attorney can help get everything in order for this proceeding.
If one of the parents objects to the move, there will be a court hearing to determine if the move is unsafe or not in the best interest of the child. A judge will schedule this meeting in order to make a ruling on any custody changes or allowances.
Just because a move will be hard on a child doesn’t mean that custody will be adjusted. The noncustodial parent needs to prove that the child will be negatively impacted in a detrimental way by this move. Similarly, in a joint custody disagreement, the custodial parent will need to prove that this change will be in the child’s best interest.
Factors to Consider
A court, while determining whether a move is in a child’s best interest, will consider the following factors:
- The child’s current need to maintain continuity, stability, and security.
- How far away this move is from the current location.
- If there’s a risk of harming the child during the change in custody.
- How this move will impact the relationship of the child with both parents.
- If moving will negatively impact the child’s relationship with the nonmoving parent.
- Why the custodial parent has decided to move.
- The parent’s relationship with one another and if they are able to communicate in a civil manner.
- How the child’s educational, physical, and emotional needs will be satisfied by this move.
- If there is an extended family for the child in either location.
- Anything else the court decides should be considered in the move-away case.
You Don’t Have To Face Divorce Alone
A ‘move-away’ order can turn an already difficult divorce into an even more complicated situation. But you don’t have to find your way out by yourself. Kern County family law attorneys Azemika & Azemika can help you and your child move forward and move on with your lives.
At Azemika & Azemika, we understand family, and are willing and ready to be your rock in this trying process. Contact us now if you or a loved one are considering beginning the divorce process or are facing a ‘move-away’ order. We’ll fight for you and your family.