Since your separation or divorce, you and your ex may have found ways to work together to accommodate the little issues that come up in daily life, such as when a child has sports practice on a visitation night. But when one of you wants to move away, it can significantly disrupt your relationship with your kids—and your ex. Even if the move is within California, you should consult our experienced family law attorneys at Kendall and Gkikas LLP to help you navigate these changes.
Move-away petition
If you have a child custody agreement with your ex, there is a legal process that must be followed when one parent wants to move with the children. To ensure that the best interests of the children are considered during this life-changing event, a move-away petition must be filed. The law in this circumstance is complicated and frequently changes, so you should have an experienced attorney by your side, even if you anticipate the modification to be amicable.
When one parent wants to move away
A court can’t stop one parent from relocating. An adult has a constitutional right to decide where he or she wants to live and work. But when separated parents disagree about what is best for their kids, the court has the authority to decide whether the children will move.
When the court is asked to modify any custody order, the judge must always consider what is in the best interest of the child in each unique situation. While it may be in the best interest of the parent to move away (for example, to take a better job), the court must ask if it is also in the best interest of the children to relocate too.
Does it matter what my kids want to do?
A child over 14 must be allowed to tell the court whether he or she wants to move or stay. The court may allow a younger child to testify, if the judge feels that the child is old enough and mature enough to make that decision. However, if the court decides that it is not in the best interest of the child, that will take priority over what the child wants. The court will consider other factors, such as children’s ages, their activities and ties to where they currently live, the distance of the move, and the current custody order and living situation.
When one parent has sole physical custody
When one parent has sole physical custody, that parent is presumed to have the right to relocate with the children, unless the other parent can prove that the move would be harmful to the children. This isn’t merely the fact that any move can be tough when kids have to start over at a new school. The opposing parent must show that there will be much greater harm, due to other significant factors. If the opposing parent is successful, the judge can’t prevent the other parent from moving, but can award custody to the opposing parent.
When parents share joint custody
When parents share joint custody, the burden is on the parent who wants to move. The parent filing the move-away petition must show that it is actually in the children’s best interest to relocate with them.
Ultimately, the labels in your custody order will not determine the outcome. The court will recognize that what matters is how the parenting roles are shared in real life—and what is truly in the best interest of the children.
If you’ve been through a custody battle before, you know that things can get complicated fast. If either you or your ex are thinking about relocating your children, contact the experienced California family law attorneys at Kendall and Gkikas LLP right away. Call 909-482-1422 or email info@parents4children.com to make an appointment now.
