How the court evaluates a move-away case:
- Temporary Custody Agreement or no custody agreement:
The court will determine if the move is in the best interest of the child - Permanent Custody Agreement:
The court will determine if the move changes the current custody agreement and whether the best interests of the child are no longer served
How Do I Know If My Last Custody Agreement Was Final?
Generally, a custody agreement will be considered permanent only when there is a final judicial determination from a court or when the parties stipulate that an agreement is final. A final judicial determination is relatively easy to ascertain because it is a determination made by a judge after hearing all of the facts of the case, usually in a trial.
Determining when a stipulated to agreement is actually final can prove to be more tricky. A stipulated to agreement is an agreement that the parents make prior to going to court. In a stipulated to agreement, the parties come to an agreement either between themselves or with a mediator. They then file the agreement with the court clerk and the clerk sends it to a judge to be reviewed.
Generally, the judge will approve the parents’ agreement without conducting a trial. However, it is not uncommon for couples to enter into an agreement where one person thinks the agreement is final and the other believes that it is only temporary. For this reason, California specifically recognizes that custody agreements made by stipulation between the parties are not final unless “there is a clear, affirmative indication the parties intended such a result.” (See Montenegro v. Diaz (2001) 26 Cal. 4th 249, 258). One way you can show your agreement is final is to state “this is the final agreement” in the agreement itself.
Because there is a different legal standard used in temporary and permanent custody agreements, it is important that you understand whether or not your custody agreement was finalized. Because the temporary or permanent nature of the current custody situation can be difficult to ascertain, it is in your best interest to talk to a San Bernardino relocation lawyer who can assess your options and advise you as to whether or not you actually need to seek a modification in the custody agreement or take other steps.
What Factors Does the Court Consider When Evaluating a Move-Away?
When a parent makes a request to relocate, the court can take numerous factors into consideration before making a final decision.
These factors include, but are not limited to, the following:
- The existing custody agreement between the parents
- Whether the other parent opposes the move
- Whether the move is detrimental to the child
- Whether the child wants to move (applicable to children who are mature enough to make their own decisions).
This is only a short list of potential factors. The court may consider any information it deems relevant.
The Existing Child Custody Agreement
Custody itself comes in two parts:
- Legal custody
- Physical custody
Legal custody refers to the right and responsibility of making decisions relating to the child’s “health, education and welfare.” One parent can have legal custody or both parents can share legal custody. Physical custody refers to the portion of the custody agreement that determines where the child will live. Similar to legal custody, one parent can have physical custody or the parents can share custody.
Custody can be either joint, sole or a mixture of both:
- Joint custody is a custody agreement where parents share both legal custody and physical custody. Accordingly, both parents share in the decision making process for the child and the child lives with both parents according to a set schedule.
- Sole custody can be either legal or physical. In a sole custody agreement only one parent has either legal or physical custody. In some cases, the same parent has both sole physical custody and sole legal custody. In other cases, one parent has sole legal custody while the other has sole physical custody.
- Mixed custody means both parents may share legal custody, but only one parent has physical custody, or vice-versa. It is a combination of joint and sole custody.
Typically, California prefers that parents have joint custody, but it is not unusual for one parent to have sole physical custody and to share legal custody of the child with the other parent. Under a joint legal custody and sole physical custody arrangement, both parents are still responsible for making decisions that will affect the child’s “health, education, and welfare,” but the child will live with one parent.
How the Type of Custody Affects Your Move-Away Request:
- No Custody or Temporary Custody: In these situations, move-away requests will be evaluated by the court based on the best interests of the child
- Joint Physical Custody: When the parents share physical custody the court will base its decision on the best interests of the child.
- Sole Physical Custody: A parent who has sole physical custody has a presumptive right to relocate subject to certain conditions (discussed below).
- Sole Legal Custody: A parent who only has legal custody will likely not be able to relocate with the child or prevent the other parent from relocating with the child without requesting a modification based on a change of circumstance.
Sole Physical Custody: Do I Still Need the Court’s Permission to Move?
California’s Family Code § 7501 states that a custodial parent has the presumptive right to relocate (a presumptive right to relocate is a right where the court assumes in favor of the relocation) and that relocation by the custodial parent does not necessarily mean that there has been a change in circumstance which would require a modification to the child custody agreement. (The court has clarified that the custody referred to in the Family Code is physical custody and not legal custody. See In re Marriage of Burgess, (1996) 13 Cal. 4th 25.)[1] However, the decision to relocate must be made in good-faith and not be based on a desire to hurt or otherwise harm the non-custodial parent.
Take a look at the legal analysis of each custody agreement:
- Sole Physical: The parent has a presumptive right to relocate.
- Sole Legal: The parent will probably need a modification.
- Joint Physical: The parent will probably need a modification.
- Joint Legal: The parent will probably need a modification.
Accordingly, a parent who has sole physical custody has a presumptive right to relocate to another area because the move itself would not affect the other parent’s legal custody rights. However, despite a presumption in favor of relocating, the court still has the power to prevent any relocation if it would “prejudice the rights or welfare of the child” or if the non-custodial parent can show that the move would be detrimental to the child. Having sole physical custody generally means that the court is more likely to decide in your favor, However, it does not mean that you can move away without informing the court and even though you have the presumptive right to move, your move-away request can still be denied should the court find that the move is in bad-faith or not in the child’s best interests.
Non-Custodial Parent’s Opposition to the Move
If you do not have custody of your child and you want to prevent the custodial parent from moving, there are several steps you can take to try and prevent the move. However, the steps you need to take will depend on whether your custody agreement is final or temporary.
When the custody agreement is only temporary:
- Prior to a final judicial determination regarding custody, the custody agreement can be changed when the court determines that the change is “necessary and proper” and is in the best interests of the child. See Fam C. §3022. (In deciding what is in the best interest of the child, the court evaluates multiple factors, including the child’s health, safety, and welfare, to determine whether there has been a history of abuse by one parent and the amount and type of contact the child has with the other parent.)
When the custody agreement is final:
- Once a final decision has been entered, a non-custodial parent or a parent that shares physical custody must petition the court for a modification in the child custody agreement in order to either prevent the custodial parent from moving away or to request the right to relocate with the child themselves.
(See Montenegro v. Diaz (2001) 26 Cal. 4th 249, 256.)
How Do I Modify My Child Custody Agreement?
In order to modify the child custody agreement, you must be able to prove the move would present a “significant change in circumstance” or that the move is in bad faith. Accordingly, the contesting parent must now show that the custodial parent’s move upsets the status quo so much that the child’s best interests are no longer being served.
What Is a Significant Change in Circumstance?
What exactly constitutes a significant change in circumstance will change depending on the facts of the case and the court can look at any criteria that it deems important in determining if the change in circumstance is sufficient enough to warrant modifying the child custody agreement. Additionally, the Court may now determine that the move by itself is detrimental enough to the child to constitute a change in circumstance such that the child custody agreement should be modified.
Prior to 2004, relocating alone was not considered a significant enough impact on a child in order to justify modifying a permanent child custody order.
Evaluating Whether the Moving Would Be Detrimental to the Child
There is no set list of factors that the court considers when determining whether relocating would be detrimental. Each case is evaluated on a case-by-case basis and the court will determine whether relocating would detrimentally affect the child’s relationship with the non-custodial parent. If the court determines that the relocation is detrimental, it may deny the request to relocate.
In addition to looking at whether the move itself would be detrimental to the child’s relationship, the court may look at a variety of other factors including:
- The current nature of the child’s contact with both his/her parents
- The proposed reason for the move
- The current relationship between the child’s parents, including their ability to communicate and desire to maintain a harmonious relationship
- Whether one parent is better suited to maintain and encourage contact with the other
- The age of the child
- The friendships and social circle of the child
- The community ties the child has developed
- The child’s health and educational needs
- The child’s preferences
Does My Child Have a Say Regarding the Relocation?
When a child has reached a level of maturity that enables him / her to determine whether relocating is in his / her best interest the court may take the child’s wishes into consideration. Under California law, if a child is old enough and has a sufficient capacity to form an intelligent decision regarding a relocation the court is required to consider the child’s wishes and give them due weight when it makes its decision.
When a child is 14 years old or older, he / she is entitled to address the court regarding his / her custody and visitation preferences unless the court determines that it is not in the child’s best interests (simply being 14 does not determine if the child is mature enough to know what is in their best interest).
Additionally, a child’s wishes may be brought before the court through testimony in open court or in the judge’s chambers. However, prior to any discussion with the child, the court may want to have a special counsel appointed for the child or order the child to undergo a child custody evaluation. If counsel is appointed, the child may speak to the court through counsel. If an evaluation is ordered, the child can tell the evaluator what his/her wishes are and the evaluator can then inform the court.
What Can I Expect to Happen in My Move-Away Case?
Each move away case is different and the process your case takes will depend on whether or not you and the other parent can come to an agreement on the relocation. However, if you cannot agree, the court will likely order you, your child, and the other parent to undergo a custody evaluation. During that, a qualified mental health professional will discuss with each parent their proposed custody arrangement.
In addition to discussing the custody arrangements, the evaluator may request the following:
- To perform in-home visits
- Interview family members
- Interview the child
- Request to see the child’s school records/report cards
- Perform an observation of the child in the home of each parent
The evaluation process, which can take several months to perform, is extremely important. The court tends to place a great deal of emphasis on any recommendations the evaluator makes. For this reason, it is important that you co-operate with the evaluator and are properly prepared for the evaluation process.
Other Considerations in a Move-Away Case
Move-away cases can be difficult to navigate. If you are planning to relocate or the custodial parent of your child is planning to relocate, there are some things you can do to help your child custody case.
If you are relocating:
- Try to get sole custody of your child
- Encourage your child to have a relationship with the other parent
- Avoid negative comments about the other parent
- Prepare a proposed custody plan for your child
- Attempt to create a custody agreement with the other parent
- Be prepared to show the court why you are moving
- Notify the court and the other parent of the move several months in advance
If you oppose the relocation:
- Try to get joint physical custody of your child
- Get involved in every major decision in your child’s life
- Show up to all of your scheduled visitations
- Be prepared to tell the court why you oppose the move
- Have a custody plan prepared*
* See Also Parental Relocation: The Move-Away Case by Hon. Dianna Gould-Saltman
