Sometimes, whether it be in the beginning of a divorce, in the middle, or parents who have never been married, one party wishes to relocate with their children. These issues are commonly referred to as "Move Away" issues. In California, the gold standard in custody disputes is the "best interests of the child." Courts are to examine the issues that best represent what is in the best interest of the child. Under Family Code Section 7501(a), the custodial parent has the right to relocate the residence of the child, subject of the court to restrain a removal that would prejudice the rights and welfare of the child.
In re Marriage of Burgess, the court held that a custodial parent need not prove it is “necessary” to move away. Instead, the parent is subject only to a court’s determination that such a move would prejudice the rights of the child or the child’s welfare. The trial court only needs to consider the effects of relocation on the “best interest” of the minor children, including the health, safety, and welfare of the children, and the nature and amount of contact with both parents. The Court may take into consideration the nature of the child’s existing contact with both parents, the child’s age, the child’s community ties, and the child’s health and educational needs. Depending on the specifics of the case, the Court may also consider the preference of the child.
Despite your right to relocate, you do not necessarily have the right to relocate with your child. First, you should discuss the proposition with the other parent. If they are not agreeable, then you must seek permission from the Court. The other parent has a right to challenge your proposal to move. If the other parent does challenge the move, they must prove to the Court that there would be a detriment to the child if they were allowed to move with you, and that custody should be changed so that they would get physical custody of the child if you move.
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