Q. I have a shared custody agreement with my daughter’s father, a 60/40 arrangement. Our custody order states we cannot move out of Sacramento County. How would I go about relocating with my daughter without committing a crime if her father won’t agree to the move?
Cases involving custody and visitation are rarely simple or stress-free, but situations in which one parent wishes to relocate with the child (“move-away” cases, as they are known in legalese) can be complicated. The California Courts Self-Help Center recommends seeking an attorney’s assistance for this type of case.
Of course, a lot depends on the state in which you and your family reside; California, compared to other states, tends to be more accommodating toward the custodial parent (primary caretaker) seeking to relocate, as long as certain standards are examined and met. These standards arose primarily from a pair of California Supreme Court cases, essential reading for anyone trying to find out more about move-away cases in California.
Until 1996, it was extremely difficult for custodial parents to relocate with their children; the burden of proof was on the relocating parents to demonstrate to the court that the move was absolutely essential to the children’s welfare (the courts didn’t care if the move would benefit the parent). The law changed when the Supreme Court handed down its decision In re Marriage of Burgess, 13 Cal. 4th 25 (Cal. 1996), which held that a custodial parent need only show that a move would be in the child’s best interests, rather than critical to the child’s welfare. So long as the decision to move was not made to spite the other parent, the court would look more favorably on a custodial parent’s request to relocate with the children. Essentially, this case shifted the burden of proof to the remaining parent, who needs to prove the move would be detrimental to the children. The California legislature later codified this ruling in Family Code Section 7501(b), making it “the public policy and law of this state.”
In 2004, the Supreme Court reaffirmed the Burgess decision in In re Marriage of LaMusga, 32 Cal. 4th 1072 (Cal. 2004). The LaMusga decision includes clarification on a number of issues, including the modification of custody orders and a more in-depth review of the motives and circumstances of the proposed move.
Now, these decisions have made it fairly straightforward for a custodial parent with majority or sole custody to relocate, providing the move is in the best interests of the child. However, when parents have shared custody agreements (for example, a 60/40 arrangement, like yours) relocation would obviously require more consideration, as it would have a significant impact on a child’s life, which both rulings acknowledge. According to California Child Custody Litigation and Practice, a law book available in most public law libraries, “this situation requires a de novo determination regarding the best interest of the minor child” in which the court will use numerous factors to guide its decision, perhaps incorporating the findings of a child custody evaluation or mediation.
The above information is not comprehensive and, in fact, is just the tip of the iceberg for these types of cases. Many people seek the assistance of an attorney for this situation; you can find a few online attorney directories here. If you’d like to do your own research, your local public law library will have resources on this topic. You can find the public law library nearest you at http://www.publiclawlibrary.org.
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