Why Can’t I Just Take the Kids and Leave? ‘Move Aways’ and California’s Child Custody Laws

California has one of the biggest alien populations in the country. Some of those aliens are from other countries. Many are from other states across the U.S. That is why so-called “move away” cases are very common in California family courts when parents dispute child custody.

Whether before divorce, long after divorce, or whether it involves parents who were never married, one parent oftentimes wants to either move to another side of the state (for example, from Yolo County to Orange County), or to another state or country altogether. If that parent intends to take the children along, that can lead to a protracted move away dispute.

The gold standard in California child custody disputes is the “best interests” standard. In other words, the courts are directed to issue orders that represent the best interests of the children. But the driving principle of that standard is keeping both parents intimately involved in their children’s lives (see California Family Code section 3011).

Under California Family Code section 7501(a), 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. In other words, if you are a parent with physical custody, you have a right to move away with the child, unless a California family court determines such a move would prejudice either the rights of the child, the child’s welfare, or both.

The California Supreme Court weighed in on the topic in 1996 in a case called In re Marriage of Burgess, the opinion from which was codified by the California legislature (see California Family Code section 7501(b)). In 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, among other factors, 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.

This holding is not nearly as illustrative to explaining your rights as the facts of the case are. In Burgess, the mother’s decision to move was employment related. She was not moving merely to frustrate the father’s contact with the children. Provisions were also made to allow father regular and routine visitation with the children.

Compared to most move away cases, Burgess was an easy one. Mom and Dad shared legal custody, but mom enjoyed sole physical custody. Plus, she was only moving 40 miles away. Therefore, by challenging the move away, the father was asking to not just prevent the children from moving away with mom, but to change custody arrangements altogether. Such a change would require dad to demonstrate that circumstances had significantly changed requiring a new custody order.

The more difficult case involves parents who share physical custody, are almost even in parenting time, and one parent wants to move with the children to another state or country. To this, the Burgess court held that each case must be evaluated on its own unique facts. Although the interests of a child in the continuity and permanency of custodial placement with the primary caretaker will most often prevail, the trial 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,
  • the child’s health and educational needs, and
  • the preferences of the child (only in some cases – see California Family Code section 3042).

In addition, the trial court has broad discretion to modify orders concerning contact and visitation to minimize the minor children’s loss of contact and visitation with the noncustodial parent in the event of a move, e.g., by:

  • increasing the amount of visitation with the noncustodial parent during vacations from school,
  • requiring the custodial parent to pay transportation expenses, or
  • requiring the custodial parent to provide transportation of the children to the noncustodial parent’s home.

As is plain to see, move aways are not easy. In the case described above, the California Supreme Court reversed the California Court of Appeal, which had itself overturned the trial court’s decision. Several esteemed, learned judges disagreed significantly about the proper course in such a case. Imagine how difficult the cases are for litigants and the attorneys who represent them.

The California Supreme Court warned in Burgess that such litigation is typically detrimental to the welfare of minor children because of the uncertainty, stress, and even ill will that move aways tend to generate.

If you are considering relocation, you should first consult a California family law attorney in your area, such as Yolo County, Sacramento County, or Placer County.

With offices in Davis, Pakpour Banks LLP represents family law litigants in Yolo, Solano, Sacramento, and Placer Counties.

We fight on your behalf in divorce, child custody, visitation, child support, spousal support, domestic violence, property division, and other family law issues.

We also fight for our clients in eviction disputes, and probate disputes like guardianships and conservatorships.

1667 Oak Avenue Davis, CA 95616
Phone: (530) 302-5444
Fax: (530) 302-4044

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