Can A Custodial Parent Move A Child Out Of A State If The Other Parent Has Legal Custody And/Or Legal Visitation Rights Pursuant To A Paternity, Legal Separation Or Divorce In A Family Law Case?

In San Diego, in 2013 and beyond, it will not be uncommon for parents who are not married, legally separated or divorced to want to move out of San Diego County. Some will want to move out of the State of California to neighboring states and some parents will want to move across the United States of America. Some parents may want to move to a foreign country either for a certain time period [such as military deployment since San Diego is such a large military town] or for a permanent move.

In the recent past and continuing in 2013 and into the future for now, in San Diego Superior Court, the Judges have made a distinction between a pre judgment move away case and a post judgment move away case. This is a very complicated area of the law. For pre judgment move away cases, there was a presumption of detriment [harm] and this was especially true the younger the child. As such, many of the pre judgment move away motions were denied by the San Diego Superior Court Judges. This is contrasted, however, by a request of a custodial parent to move away after the judgment is entered as a permanent order in a post judgment motion to move away. In this cases, there is a presumption of the right of the custodial parent to move and the non custodial parent has the burden to show detriment. This is often accomplished by the appointment of an expert under Evidence Code Section 730 to make an expert opinion on whether detriment will occur and/or the best interests of the child or children.

As soon as a petition for divorce, legal separation or judgment for paternity is filed, there are automatic temporary restraining orders. These include that the child or children cannot be moved or taken outside California without a written agreement of the parties or a court order. This is the first issue for a move away since if the ATRO’s are in effect, then no move outside California without court order or written agreement signed by both parties. There are many reasons for this restriction including the below:

  • So that the original state did not lose its jurisdiction
  • So that the non-custodial parent did not face an obstacle in being able to continue a strong relationship with the child or children

But in recent years the situation has altered considerably with changes that have taken place in family laws and the right of the custodial parent to move after judgment much more easily than pre judgment. This has created a trend which allows a custodial parent to relocate more freely as above.

Freedom

Take a case where a parent has custodial rights and the erstwhile spouse was awarded visitation rights; can the parent with custodial rights move out of the state? If both spouses agree, yes with a written agreement which is a “stipulation” in the San Diego Superior Court. If both spouses do not agree, then the visitation schedule [of course] would not permit a move away to another state. As such, the only option is to file a motion called a Request for Order to ask the Judge to be allowed the move the children or child.

The Conundrum

The answer depends on the law in California and this website has another article on move away cases as well with a pdf attachment of points and authorities to move away. These points and authorities, and all else on the website, is provided for educational information only and valid as of the time written so always independently verify the state of the law before initiating any legal action. Family courts in general are driven by what they determine to be in “the best interests of the child”. In this particular case it raises an interesting point whether the court puts the onus of proving what is in the best interest of the child on the custodial parent or the one with visitation rights.

Not All Reasons are the Same

Family law courts in San Diego will permit a custodial parent to move the child out of the State of California provided they believe that the move is in the best overall interest of the child and no detriment will occur as primary factors. Points which might be considered beneficial is if the move results in being with a new spouse, moving for military orders, moving for a job or a better job, better schools and many other factors. If they are just moving because they want to be closer to the beach or because this other house has a swimming pool, these reasons may not be that impressive to the Judge.

But how does a court determine what in a child’s best interest?

Regardless of which parent has the onus of proof, the Court will endeavor to balance the custodial parent’s right to move freely, the best interest of the child in this specific instance, and the right of the other parent with visitation rights to continue a significant relationship with his/her child.

Factors that will influence a court are:

  • Whether the move will improve the overall quality of life for custodial parent and child
  • That the move, or opposition to it, is not prompted by bad faith or malice
  • That the custodial parent who is relocating will adhere to all visitation arrangements
  • That revised visitation rights will be sufficient for the other parent and the child to continue a meaningful relationship as envisaged in the primary parenting plan.
Consult with an Experienced San Diego Move Away Attorney

If either parent is considering relocating to another state with the child then it is advisable to consult a family attorney. Doppelt & Forney, a Professional Law Corporation, a family law firm of San Diego, will be of assistance to California residents. They will help you obtain a clear understanding of your rights, and guide you through the complex maze of family law.

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