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Move Away Cases in Temecula, Riverside County

Child custody litigation cases can be among the most difficult matters in family law.  Even if parents get along well, cooperate, and work together, children often have a difficult adjustment period when they are forced to spend time between two homes.  When parents don’t get along well, the negative effects on children can be devastating.  Likewise, when one parent decides that they are going to move out of Riverside County and they want to take their child with them, the monumentally difficult “move away” case comes to light.  Studies have shown that children are negatively impacted when parents relocate from the other parent, no matter what the circumstances.  We recently litigated a move away case where the Evidence Code 730 expert, a child psychologist, testified that recent studies have shown that such a move may take years off a child’s life.

As a result, the courts in a difficult position when confronted with a parent’s request to move.  It is always bad for the child.  However, the current state of the law allows a primary care parent to relocate under most circumstances.

We cannot stress enough the importance of having excellent legal representation when dealing with a move away case, whether you are the moving party or responding to a move away case.  Our attorneys have years of experience handling custody cases and move away cases in particular.  We have conducted multiple-day trials involving only the issue of a move away.  We have authored many articles on this issue and believe we have an excellent understanding on the state of the law, which is extremely complex.  The law is also always changing.  On this page, we provide you with a synopsis of the law relating to move away cases as well as highlight to important issues that will arise in a move away case.

A Parent’s Right to Move

The preeminent case that describes a parent’s right to move away with a child is called the Marriage of Burgess case.  In that case, the court found that a parent having the primary custodial responsibility for a child has the right to move that child, except when such move would cause such a detriment to the child that the court should not allow the move.  The California legislature then enacted Family Code 7501, which reaffirmed the holding in Burgess regarding a parent’s right to move.  Family Code 7501 states in whole:

  • (a) A parent entitled to the custody of a child has a right to change the residence of the child, subject to the power of the court to restrain a removal that would prejudice the rights or welfare of the child.
  • (b) It is the intent of the Legislature to affirm the decision in In re Marriage of Burgess (1996) 13 Cal.4th 25, and to declare that ruling to be the public policy and law of this state.

What does “subject to the power of the court to restrain a removal that would prejudice the rights or welfare of the child” mean?  This sentence has been the subject of many appellate cases.  A simple translation is that the court may deny a move away request if the move will be so detrimental to the child that a change of custody to the other parent would be warranted.  The court looks at whether a change of custody is “necessary or expedient” to the child’s best interest.

Of course, parents always have a right to move themselves.  What we are talking about here is the ability for the parent to take the child with them when they move.

Evidence Code 730 and Family Code 3111 Experts

Riverside Family Court judges nearly automatically appoint an expert in move away cases.  Family Code 3111(a) states,

  • In any contested proceeding involving child custody or visitation rights, the court may appoint a child custody evaluator to conduct a child custody evaluation in cases where the court determines it is in the best interests of the child. The child custody evaluation shall be conducted in accordance with the standards adopted by the Judicial Council pursuant to Section 3117, and all other standards adopted by the Judicial Council regarding child custody evaluations. If directed by the court, the court-appointed child custody evaluator shall file a written confidential report on his or her evaluation. At least 10 days before any hearing regarding custody of the child, the report shall be filed with the clerk of the court in which the custody hearing will be conducted and served on the parties or their attorneys, and any other counsel appointed for the child pursuant to Section 3150. The report may be considered by the court.

Unfortunately, these child psychology experts can take a long time to complete their reports and can be extremely expensive.  Knowing how to deal with the appointment of and communication with the expert during the evaluation process is critical.

What are the Common Reasons People want to Move Away?

There are endless reasons why individuals file motions to move out of Riverside County with their children because the other parent will not agree to the move.  There are common and legitimate reasons, however, for such requests and these may include:

  • A parent has another job opportunity in another city or state;
  • A parent’s military obligations require a move;
  • A parent’s new spouse is required to move for employment purposes;
  • When the cost of living is too high in Temecula;
  • When the primary custodial parent has been out of work for too long and can’t find employment here;
  • When a child has special needs and there are more opportunities for care elsewhere;
  • When a child will have a better connection to family elsewhere.

Does the Reason for the Move Away Really Matter?

Usually not.  While the reason for the move doesn’t make a difference (Family Code 7501 doesn’t indicate that a primary custodial parent has a right to move only if there is a good reason), the law says that if the reason for the move is made in bad faith, particularly to thwart the child’s relationship with the other parent, then the court should block the move (or at least heavily consider this fact).

What if the Parents Share Joint Physical Custody?

If parents share joint physical custody, Family Code 7501 does not apply.  There is no presumptive right to move.  As a result, the court will simply look at the child’s best interest in determining whether to allow or deny the move.  Usually, it is uncommon for the court to grant a move away request to a parent that shares joint physical custody with the other parent.

Factors the Court will Consider in a Move Away Case

The Court must consider all the factors enumerated in a case called Marriage of LaMusga (pronounced “La Moo Shea”) when deciding whether to grant or deny a request to move away with a child out of Riverside County.  The court will always consider these factors so it is important for move away litigants to be thinking about these factors well before a case is filed.  The La Musga factors include:

  • The Child’s Interest in Stability & Continuity in the Custody Arrangement: Studies show that children thrive when they have a routine.
  • The Distance of the Move: The greater the distance, the more difficult it will be on the child to maintain contact with the parent left behind.
  • The Age of the Child:  A child’s age can influence how difficult a move will be for them.
  • The Child’s Relationship with Both Parents:  The court will look at the bond between child and parents.
  • The Relationship Between the Parents & Ability to Communicate:  The better the parents communicate, the more likely the moving parent will promote the child’s relationship with the other parent.  One of the important factors in any custody case is which parent is most likely going to facilitate the other parent’s relationship with the child.
  • The Parties Ability to Put the Interests of Child Above Their Own: A parent’s ability to put the child’s needs ahead of their own is paramount to what parent is better suited overall to primarily care for a child.
  • The Wishes of the Child:  If children are the age that they have sufficient “capacity” (i.e. ability) to express their wishes, the court will consider those wishes.
  • The Reasons of the Proposed Move:  As discussed above, the reason cannot be a “bad faith” reason.
  • The Extent to Which the Parents Currently Share Custody:  This deals with the standard that the court will apply.  Also, the more a child is with a parent the more unlikely the court will want to separate them.
  • Child’s Health and Education Needs:  If there are some compelling health or school reasons that a child should move, or not move, the court will consider those reasons.
  • Child’s Community Ties:  This includes a child’s friends, activities, local family, etc.
  • Proposed Visitation Plan:  A parent wishing to move should always put together a solid game plan for the other parent’s visitation with the child after the move.

Contact Wilkinson & Finkbeiner, LLP for a Free Consultation

Move away cases are challenging, to say the least.  It is imperative that you have a lawyer on your side that has dealt with these cases before and understands the law and arguments to make.  Call our office today, or send us an email from our Contact Us page to schedule your free initial consultation.