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In the Child's Best Interest: What It Means in Move-Away Cases

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Ask a family law court judge to name the most difficult type of case to decide and most likely she or he will say move-away child custody cases, which in family law parlance means when one party seeks to relocate with her or his child to another geographic area. The requested destination could be a 60-mile move or a 6,000-plus-mile move. After separation, when a custodial parent decides to move, often heart-wrenching decisions have to be made about where the children will live and how and to what extent the other parent will maintain a relationship with them. If a Court grants the move, the non-custodial parent will no longer be able to participate in the day-to-day life of her or his child -- missing out on carpooling, school events, helping with homework and extra-curricular activities. On the other hand, if the Court denies the custodial parent's move-away request and the custodial parent has no choice but to move away from his or her current geographic location, then the child will be separated from the parent with whom the child may have the closest bond. In either situation, the child loses.

In California, where I practice family law, a large percentage of the population comes from another state or even another country -- resulting in a high number of move-away cases. Generally speaking, our increasingly mobile society and the economy have contributed to an upswing in move-aways. Many times a divorced/separated parent wants or needs to return to her or his home state or country to be able to take advantage of a family support system. Often a parent is going to where a job or remarriage necessitates the move. It is the exception rather than the rule that the parents can agree on one parent moving and the resulting changes in timeshare, which usually means that the non-moving party has the child during the majority of holidays and vacation. However, this can prove to be problematic when very young children are involved and they cannot spend significant time away from the other parent. The majority of the time these situations become emotional powder kegs and the parties can't agree on anything, let alone the over-arching concern, i.e,. what is in the child's best interest. In these cases it is up to the Court to play "Solomon" and decide whether to allow the relocation with the children. States have different rules surrounding move-away custody, but in general the best interest of the child is the gold standard and this will be the focus of the Court in making its ruling. In California and other states with permissive move-away laws, the burden of proof will be on the non-custodial parent (usually those parents who spend less than 35 percent of the time with the children) to prove that the move will be harmful to the child. Conversely, states with more restrictive laws on move-aways may place a higher burden on the custodial parent to show that the move will be in the best of interest of the child. Here are major factors that the Court (at least in California) will consider in move-away decisions:
  • Maintaining stability and continuity in the child's life: The Court will look at the timeshare percentage in the current custody order, evaluate how much time the child actually spends with each parent, how long the custody order has been in place, the child's connections to the custodial and non-custodial parents, as well as to the community (including ties to school activities and friends). In some states, the custody order cannot be modified for a couple of years.
  • Distance of the move: Shorter moves (i.e., a couple hours' drive) may not be seen by the Court as disruptive to the child's life and relationship with the non-custodial parent. However, a move across the country or overseas will come under greater scrutiny. In international cases, the Court will consider factors such as cultural differences including language, potential or actual dangers in the country, risk of abduction and whether the Court's orders will be enforced in the country in which the child will reside with the custodial parent.
  • The reason for the move: In California the parent does not have to justify the move. However, if there is evidence that the purpose of the move is in bad faith, i.e., to interfere with the relationship between the child and the non-custodial parent, the Court will factor this into its decision and may not permit the move. In particular, the Court will look for a pattern of "restrictive gatekeeping" in which the custodial parent interferes with the child's relationship with the other parent, speaks negatively about the other parent or "forgets" to share important information about the child's school, health or social life.
  • Child's age: A move-away may be seen as more detrimental to very young children who have a strong attachment to one parent versus the other and who do not have a conceptual understanding of time, i.e., they do not know or understand measurements of time and how they relate to when they will see the other parent.
  • Ability to effectively co-parent: The Court will assess how well the parents communicate with each other; whether they're able to put the child's interests before their own; and how the moving parent will foster contact between the child and the other parent.
  • Where the child wants to live: In some cases, the child may be able to testify about her or his wishes for custody. In fact, in California the law requires that children 14 and older must be allowed to testify, unless the Court finds it will be harmful to the child to do so. Children under 14 may also give their preference if the Court finds it appropriate. Children can also express their wishes to a Court-appointed evaluator.
  • The child's relationship with each parent. As discussed in some of the other sections above, the Court will examine the child's relationship with each parent, i.e., in very young children, is there a primary attachment to one parent and in older children, is a child estranged from a parent; is there conflict between a parent and child; or is a child too enmeshed with a parent. In many cases the Court will appoint a child custody evaluator to assist the Court in making a decision to allow the move or not.

If you are seeking a move-away order or are looking to prevent one, your first step should be to consult with a family attorney with particular expertise in this area. Your attorney will be able to advise you on the factors in your case that may influence the Court, what you can do to support your position and strategies for effectively presenting your case.

Move-aways are expensive -- both emotionally and financially, but our children are invaluable and as parents we will do almost anything to protect and preserve that relationship.