Move-away or Relocation Custody Disputes

When a custodial parent requests the court allow him or her to move the child to a location that would interfere with the non custodial parent’s visitation, this is commonly referred to as a move-away case.

We recognize that move-away cases are often the most difficult conflicts our clients face. The consequences of a court’s ruling in a move-away case can have a profound impact on both parents and children. The move-away parent views the move as a doorway to his or her post-divorce future. The stay-behind parent, on the other hand, sees the move as a threat his or her parenthood. We help parents hoping to prevent move-aways and parents seeking to relocate. We also help domestic partners involved in move-away disputes.

Framework of Move-Away Disputes

Unless both parents agree, parents who wish to move their child must seek permission from the court before so doing. There have been many reported decisions on the subject of move-aways, and the law is constantly evolving in this complex area. In general, move-away cases are decided with the following analytical framework:

  1. If no custody order exists yet, or the previous custody order is a temporary custody order, the court’s decision will determine what arrangement is in the best interests of the child.
  2.  If a final, or permanent, custody order already exists, the legal standard which the court uses depends on the current type of custody plan.
  3. If the parents are sharing physical custody of the child, the decision is based on what is in the best interests of the child.
  4. If one parent has physical custody of the child, it may be easier for that parent to obtain court permission to move with the child. In such cases, the non-custodial parent may be successful in preventing the move if he or she can prove to the court that:
    1. The custodial parent’s reasons for moving are in bad faith. The prime example of this is that the custodial parent is moving to try to reduce the non-custodial parent’s time with the children.
    2. The move would be detrimental to the child. The court must consider the effect the move will have on the child’s relationship with the other parent after the move.

Substantive Factors Courts Consider in Move-Away Disputes

Courts will determine whether to grant a move-away request based on a number of factors, including the following:

  1. The reason for the proposed move
  2. The child’s interest in stability and continuity in the custodial arrangement
  3. The distance of the move
  4. The age of the child
  5. The child’s relationship with both parents
  6. The relationship between the parents including their ability to communicate and cooperate effectively and their willingness to put the interests of the child above their individual interests
  7. The wishes of the child if he or she is mature enough for such an inquiry to be appropriate
  8. The current custody arrangement
  9. Which parent is more likely to encourage frequent and continuing contact with the other parent
  10. The child’s community ties
  11. The child’s health and educational needs
  12. The child’s circle of friends

Strategies for the Move-Away Parent

The following are strategies that should considered by the parent who would like to relocate with the children. However, every situation is unique, and you should consult with an attorney with respect to your own situation.

  1. Attempt to negotiate an initial custody order that provides you with sole physical custody of the child.
  2. In negotiating an initial custody order, do not permit the custody order to have any move-away restrictions.
  3. Encourage the relationship between the child and the other parent.
  4. Reach out and involve the other parent in major decisions affecting your child, such as education, health care and extra-curricular activities.
  5. Avoid making negative comments about the other parent to or in the presence of the child.
  6. If the other parent breaks his or her visitation plans with the child, maintain a calendar that notes the time that parent breaks visitation plans.
  7. Be prepared to tell the custody evaluator and the court your proposed custody/visitation plan.
  8. Research housing, schools in the proposed area, and be prepared to tell the custody evaluator and the court where you will live and what school the child will attend, and describe the quality.
  9. Be prepared to explain the reasons for the move and provide documentation showing this (for example, if you need to move because the cost of living is less, be prepared to show documentation showing how much less the cost of living is in your proposed area than in the Bay Area city/county that you reside in.)
  10. Make sure that you will have a source of income after the move.
  11. Try to move to a location where you have extended family or a new spouse or partner.
  12. File moving papers at least six months prior to the scheduled move. The courts are backlogged and the parent opposing the move will often attempt “delay tactics.” You need sufficient time for a custody evaluation, potential depositions, and a trial.

Strategies for the Parent Objecting to the Move-Away

The following are strategies that should considered by the parent who is objecting to the move. However, every situation is unique, and you should consult with a competent attorney with respect to your own situation.

  1. Attempt to negotiate an initial custody agreement that provides for joint physical custody and that provides you as much of a timeshare as possible.
  2. Attempt to negotiate an initial custody agreement that provides that neither parent can change the residence of the child from the surrounding area without the court’s permission.
  3. Encourage the relationship between the child and the other parent.
  4. Be involved in the major decisions affecting your child, such as education, health care, extra-curricular activities.
  5. Avoid making negative comments about the other parent to or in the presence of the child.
  6. Exercise all of your visitation rights. Do not break visitation plans unless absolutely necessary, and if you have to break plans, reschedule immediately.
  7. If the custodial parent does not allow you to see the child during your scheduled visitation time, maintain a calendar that documents each time the custodial parent did not allow you to see the child and your follow-up communications.
  8. If the custodial parent requests the right to move the child, ask for a thorough custody evaluation and an evidentiary hearing or trial where you can present evidence on the reasons against the move.
  9. Be prepared to tell the custody evaluator and the court your proposed custody/visitation plan for how you will take care of the child if the other parent moves away without the child.
  10. Be prepared to tell the custody evaluator and the court who will care for the child while you are at work, whether it is family, day-care, or after-school programs.
  11. Make sure you know the names of the child’s best friends, teachers, and doctors.
  12. Confer with a lawyer as soon as you find out about a possible move-away situation. You need sufficient time for a custody evaluation, potential depositions, and a trial.

Process of Move-Away Disputes

If the parents are unable to agree to a custody arrangement, typically the parents will agree or the court will order a custody evaluation. A custody valuation is performed by a psychologist or other mental health profession. Typically, the custody evaluator will evaluate both parents’ proposed custody proposals. A typical custody evaluation will proceed in several stages and over a period of time (typically three months, but sometimes longer and sometimes shorter). It is common, though not necessarily obligatory, that the evaluation process includes the following parts:

  1. Interviews of parents
  2. Interview of child
  3. Observation of parent-child interaction/home visits
  4. Psychological testing of parents
  5. Interviews of third parties, such as family friends, teachers, and doctors
  6. Review of reports and documents (e.g. academic school records)

Courts generally place great weight on the custody evaluation and its recommendations. Therefore it is essential to work with an attorney who understands the evaluation process and properly helps you in preparing for it. We will help you prepare for the custody evaluation, from negotiating for a specific evaluator, to explaining the process, to coaching you on how to proceed during the evaluation.