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5 Steps to Winning a Child Custody Case when a Parent Wants to Move Away

5 Steps to Winning a Child Custody Case when a Parent Wants to Move Away

Posted on November 16th, 2015

5 Keys to Winning a Move Away Custody Case in Riverside County, California

Whether you want to move away with your child to a new city, state, or country, or you are defending a request to move by the other parent of your child, read these tips.

No. 1 – Understand Family Code 7501

Understanding California Family Code 7501 is the starting point to strategically plan for success in move away cases. Family Code 7501 was enacted in 1993 following the decision in the Burgess case.

Essentially, Family Code 7501 says that a parent “entitled to custody” of their child has a presumptive right to move away with the child.

That presumptive right does not mean that the parent has an absolute right to move. If the move will prejudice the rights and welfare of the child (i.e. the child will suffer detriment), the trial court has the power to restrain the move. Generally speaking, if the move is being made in good faith and the child will not suffer any significant detriment the Court is required to allow the move. There is a myriad of other factors that the trial court family judge will consider when weighing a parent’s request to move, but this the all-important starting place for every analysis.

So what does “entitled to custody” mean? That is a great question and there is no clear line definition. Generally, courts have held that when a “non-custodial” parent has more than 30% timeshare, the parent requesting to move is not presumptively entitled to move. Some judges may carefully look back at the last few years before the motion was filed to answer this question. For example, we litigated one case where our client had approximately 30% or less timeshare at the time the motion was filed, but had previously been the child’s primary custodial parent for a period of about 7 months while the parties were still together. The court found “joint” custody in that situation and thus the moving parent was not presumptively entitled to move.

What does “prejudice the rights and welfare” and “detriment” to the child mean? This is another great question with no clear line definition. Trial courts are obligated to find other detriment than just hampering the relationship with the non-custodial parent in a move away case where one parent has the presumptive right to move (i.e. losing the relationship with the non-custodial parent cannot be the only detriment the child will suffer upon moving). The detriment suffered by the child will need to be discussed on the record by the trial judge, so be prepared to address this issue early on in the case. If you are the parent wanting to move, make sure you read and understand the factors (discussed below) so that you can try and minimize the detriment to the child. If you are the non-moving parent, you should argue that the child will suffer numerous, seriously detrimental consequences.

No. 2 – The Stipulation to Appoint a Child Custody Evaluation Expert

In Riverside County, judges will not consider a move-away request unless a neutral child custody evaluation expert has been appointed under Evidence Code 730 and Family Code 3111, and that expert has submitted a recommendation to the Court.

You should try and get the other side to agree to appoint a neutral evaluator right away, which is done by “stipulation” (i.e. agreement). By stipulating to a neutral evaluator, you not only have a say in who the evaluator will be but also what terms the evaluator will follow when they conduct their evaluation and issue a report.

For example, may parties agree that an expert’s report will come into evidence “without further foundation”, which means that the evaluator does not have to testify at the hearing thereby potentially saving a lot of money in expert fees. There are pros and cons of this provision, depending on which side you are on when the recommendation is made. You must always reserve the right to call the evaluator as a witness to cross examine them concerning the report.

A properly-drafted stipulation to appoint an evaluator can save a case, and they are extremely important. Make sure you hire someone familiar with move away cases to assist you with such a stipulation.

No. 3 – Strategically Plan Ahead

Before filing a motion to move away or filing a response to a requested move away, it is absolutely imperative to sit down and map out a strategic plan.

Throughout your case you will hear the term “LaMusga” (pronounced LA-MOO-SHEA) many times. The LaMusga case is probably the most important case to read and understand before filing or defending a move away case. In that case, the Court identified many factors that a trial judge is required to consider before granting or denying a move away request.

All the relevant factors are important, and include such items as the distance of the move, the extent to which the parents share custody, the child’s relationship with each parent (including the child’s bond with each parent), the reasons for the move (must be in good faith), and so forth.

These LaMusga factors can also be reviewed and discussed here.

Understanding and strategically planning to address every one of these factors will lead to success in the case. You will not have winning arguments for every factor, so try and identify the factors that you are lacking on strong arguments and develop arguments or theories to help bolster those factors for your side. For example, suppose you are wanting to move away with your child and the real reason is so that you can further your relationship with your boyfriend or girlfriend. If that is the only reason for the move, you will very likely not be permitted to move. As a result, find out other benefits of the move for the child, such as getting to spend more time with extended family, better schools or a lower cost of living which will allow the parent to spend more money on the child, and so forth.

No. 4 – Plan Wisely for a Long Road to Conclusion

When a move away request is filed there will be no swift resolution unless the parties reach an agreement to resolve the case on their own (or through their attorneys). When a motion is filed, the hearing date is set months out and the parties are required to attend mediation at court before the hearing takes place. You will then have your first court hearing, which will usually be 60-90 days (or more) from the date of filing. Because evaluators will be involved, the family court judge will appoint the expert on the date of the hearing unless the parties have stipulated in advance to the appointment (see above).

Most evaluators take a minimum of 90 days to complete a report, and many times it takes them much longer.

Finally, even if the moving parent is granted permission to move, there is an “automatic stay” on the order which means that the moving parent cannot move for at least 30 days following the order.

As a result, thinking ahead about how long it will take to complete a case may help you strategize to complete the case more quickly. If you want to move, perhaps you can provide some significant incentive for the other side to grant you permission to move in advance. If you are trying to block a move, it may be in your best interests to drag out the case as long as possible.

No. 5 – Honesty is the Best Policy

If your trial judge does not believe you are honest, you will have very little chance to succeed in your case. This mantra is true for every family law matter. If you have a “bad fact” in your case, don’t lie about it (for example, if you have a criminal history own up to it and explain it). Getting caught in a lie will spell disaster for you.

Family court judges are people too, and they are inundated with hundreds, if not thousands, of cases every year. It is rare that litigants are completely honest with a judge and they will give you the benefit of the doubt on “50/50” issues if they believe you have been completely honest even about things that are not good for your case.

Every “bad fact” can be neutralized or have the effect deadened with careful planning in advance.

For extensive information about move-away child custody cases, click here. Call or email our office today for more information about child custody, divorce or paternity issues.