Whether you’ve landed a great new job or just want to be closer to family, it’s a common life event to move to a different state. However, this can get complicated when children and custody agreements are involved, especially in cases where parents have a joint custody arrangement. Not surprisingly, many parents choose to make this move during the summer, when their children are not in school in order to make the transition easier. If you are planning to take this leap, Negley Law, APC has crucial information to make your move go as smoothly as possible.
The process of obtaining a move-away order can take up to six months or more, which is why it’s important to get started early—ideally in December or January, prior to your moving date. Filing for a move-away order consists of four key components: filing, mediation, court hearing, and ruling. Typically, mediation is set for approximately two months after filing. If the proceedings are contested and your case requires a hearing after mediation, it can be approximately two more months between the mediation and the hearing. After the hearing, the court may take up to a month to issue a ruling. Since the post-filing process alone can take up to five months, it’s important to begin planning the legal aspects of obtaining a move-away order at least six months in advance of the move.
What Are My Chances?
In California, there are two seminal cases that guide the court’s decision-making in move-away cases. The first, In re Marriage of Burgess (1996) 13 Cal.4th 25, was codified in 2003 as Cal. Fam. Code § 7501, and provides that “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.” (emphasis supplied). In other words, while a custodial parent (primary caregiver) is not entitled in absolute to move residences with their child, the court will grant move-away orders in the absence of compelling reasons not to. As long as you file early, cooperate with the court, and keep yourself organized, your move-away should be granted.
How Does the Court Decide?
The second seminal case that guides the court is In re Marriage of LaMusga (2004) 32 Cal.4th 1072, which provides eight factors that the court weighs when determining whether a move would, as Cal. Fam. Code § 7501 states, ‘prejudice the rights or welfare of the child.’ These eight factors are known as ‘The LaMusga Factors.’ Essentially, the court makes their decision on whether to grant your move-away on whether in their best judgement it will endanger the rights or welfare of the children involved.
The eight factors that the court considers in deciding whether to grant a move-away case include:
(1) The Children’s Interest in Stability & Continuity in the Custodial Arrangement
(2) The Distance of the Move
(3) The Age of the Children
(4) The Children’s Relationship with Both Parents
(5) The Relationship Between the Parents
(6) The Wishes of the Children
(7) The Reasons for the Proposed Move
(8) The Extent to which the Parents are Currently Sharing Custody
Consideration of each of the above factors is highly dependent on the factual details of your particular situation. For example, while the distance of the move may be a relatively minor factor in some cases, it can become a major factor if the main reason for the move is to frustrate the other parent’s visitation. Think critically about your reasons for moving and be ready to see how the court may view them.
Remember, the process of planning a move-away order takes time. As soon as you begin to consider a move as the primary custodial parent, it’s important to seek legal advice from a qualified attorney who practices family law. Contact Negley Law, APC if you have any questions or would like to schedule a free case consultation.
John J. Negley, Jr., CFLS*
Michael J. Rutkowski, CFLS*
Jeffrey F. Aisen, Esq.
NEGLEY LAW, APC
200 E Santa Clara St #200, Ventura, California 93001
*Certified Family Law Specialist by the California State Bar Board of Legal Specialization.