How will you and your ex share custody of your children if one of you relocates to a new city or state? The answer depends on how much custody the relocating parent has, among other factors.
Parents who have sole physical custody of their children generally have the easiest time relocating. If you have sole physical custody of your children, you have the presumptive right to change your children’s residence; the court will only prevent you from moving if doing so would “prejudice the rights or welfare” of the children. (Fam. Code, § 7501(a).) In fact, if you seek to move for a new job, to be closer to family members or for another good-faith reason (i.e. something besides trying to frustrate the other parent’s contact with the children) you do not even need to show the relocation is “necessary.” (Marriage of Burgess (1996) 13 Cal.App.4th 25, 37.)
It is difficult to oppose the relocation of a parent who has sole physical custody. To successfully oppose a custodial parent’s relocation, a non-custodial parent will need to show a substantial change of circumstances have occurred that makes it “essential or expedient for the welfare of the children” that custody be changed. (Burgess, 13 Cal.App.4th at 38.) If the non-custodial parent shows that changing custody is essential or expedient for the welfare of a child, the court then asks whether changing custody is actually in the child’s best interest. (Marriage of LaMusga (2004) 32 Cal.App.4th 1072, 1098.)
When the court analyzes a child’s best interest, it generally reviews the following factors: (1) the child’s interest in stability and continuity in the custodial arrangement; (2) the distance of the move; (3) the child’s age; (4) the child’s relationship with both parents; (5) the parents’ relationship with each other, including their ability to communicate and cooperate effectively and their willingness to put the child’s interests above their own; (6) the child’s wishes if he or she is of sufficient maturity; (7) the reasons for the proposed move; and (8) the extent to which the parents currently share custody. (LaMusga, 32 Cal.App.4th at 101.) Parents sometimes overlook the importance of demonstrating their ability to communicate and cooperate effectively. If one parent fails in these areas, the court may find that parent will be less likely to facilitate visitation with the other parent, which will work against the non-communicative parent.
It is important to understand that the court can only modify custody (i.e., by treating the relocation as a ‘substantial change of circumstances’) when parents are sharing custody according to a “final judicial custody determination.” What is a “final” judicial custody determination? A judgment signed by the court is considered final. Also, a written agreement between parents (also called a “stipulation”) may be a final order if facts clearly show it was intended to be final. For example, a stipulation will likely be considered “final” if it is highly detailed and includes terms such as “permanent” or “final,” and the parents followed the stipulation for a significant period. (Montenegro v. Diaz (2001) 26 Cal.4th 249, 258.)
On the other hand, in cases where there is no “final” order in place, the court applies the “best interests” of the children standard. (Burgess, 13 Cal.App.4th at 31-32.) According to the best interest standard, the court analyzes the factors set forth in Family Code section 3011, including the children’s health, safety and welfare, plus any history of abuse by one parent against the children and/or the other parent, along with best interests factors set forth above.
To relocate with the children, a non-custodial parent must meet a substantial burden. If a parent does not have primary custody of the children and wishes to relocate with them, he or she must show that the relocation will not cause them detriment and it will further their best interests. For example, before granting a non-custodial parent’s request to relocate with the children, the court will first need to consider the possible harm the move may cause the children, such as losing the mother as their primary caretaker and losing their childhood home, school and support structure. The court will next perform a “best interests” analysis.
When parents share joint physical custody, neither needs show a significant change of circumstances; the court performs a “best interests” analysis up front. For the court to apply this standard, the parents must in fact be following a joint physical custody schedule. In other words, it is not sufficient to have a final joint physical custody order but actually be practicing a substantially unequal timeshare where one parent has the vast majority of time with the children.
To evaluate what standard you must meet in order to relocate with your children, or to oppose your ex’s proposed relocation, please consult the family law attorneys at Broaden Law LLP.