What Does California Law Require Before a Parent Prove to Relocate with a Child After a Divorce?
Life does not stand still after a divorce. A new job offer, a remarriage, or a desire to be closer to extended family can all raise the question of whether a parent may move away with a child. If you share custody of a child in California, you may be wondering what the law actually requires to move away. Do you need the other parent’s permission? Does it matter how far you are moving? Our San Jose family law attorneys can help parents understand how California courts approach these questions, and this post offers a general overview of the legal framework.
California Law Starts with a Presumptive Right to Relocate
California law does not treat every proposed move as a battle that must be fought from scratch. Under California Family Code Section 7501, and the case law interpreting it, a parent who has been granted sole physical custody of a child has the presumptive right to change that child’s residence. Section 7501 expressly adopts the California Supreme Court’s decision in Marriage of Burgess (1996) 13 Cal. 4th 25 as the public policy of the state. That presumption exists because the Legislature has recognized that custodial parents often need the flexibility to pursue new opportunities, whether for career, family, or personal reasons.
That said, the presumption is not absolute. The same statute makes clear that a court retains the power to restrain a move that would prejudice the child’s rights or welfare. In other words, the starting point favors the custodial parent who wishes to relocate, but the inquiry does not end there.
What Happens When the Other Parent Objects?
Which framework applies depends on the custody arrangement already in place in that particular case. Where one parent has sole physical custody and the other, non-relocating parent objects to a proposed move, the situation becomes more complex. The objecting parent generally carries the initial burden of showing that the proposed move would cause detriment to the child. If that threshold showing is made, a court then weigh a wide range of factors before deciding whether to approve the move, modify the existing custody arrangement, or take some other action.
Where parents share joint physical custody, the framework is different. The presumption requiring the non-relocating parent to show a detriment to the child does not directly apply. Instead, the court will weigh factors as set forth by the California Supreme Court in In re Marriage of LaMusga (2004) 32 Cal.4th 1072. These factors include things such as the child’s age and ties to the current community, the existing relationship between the child and each parent, the relationship between the parents and their ability to communicate, the reasons behind the proposed move, the distance involved, and how a move might affect the child’s stability and ongoing contact with the parent who is staying behind. No single factor controls the outcome. Instead, the court weighs everything together with the child’s overall best interests in mind.
Notice Requirements Matter Just as Much as the Underlying Reasons
Even when a parent believes they have a strong basis to relocate, proper notice to the other parent is often just as important as the reasons for the move itself. Custodial orders often address relocation requirements or restrictions which must be adhered to. For example, Family Code Section 3024 may apply if stated in the existing order. Section 3024 states that a court may specify that notice shall be given to the other parent if the parent plans to change a child’s residence for more than 30 days, absent prior written agreement, and that such notice should be given, to the extent feasible, at least 45 days before the proposed change. The purpose of the requirement is to leave time for mediation and for any adjustments to the proposed relocation may require. Failing to provide adequate advance notice, or attempting to relocate without addressing the existing custody order, can create serious complications, regardless of how reasonable the underlying motivation may be.
We Are Here to Help You Understand Your Options
Every family situation is different, and the outcome of a relocation matter often depends on details specific to your case. This article is intended to provide general information and should not be viewed as legal advice for any particular situation.
If you are contemplating a move with your child, or if you have concerns about a co-parent relocating, our San Jose family law attorneys at Foster Hsu, LLP are here to help you understand the process and what may lie ahead. We invite you to contact our office to schedule a consultation and discuss the specifics of your situation.
leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?lawCode=FAM§ionNum=7501
California Code, FAM 3024.
Marr. of LaMusga :: 2004 :: Supreme Court of California Decisions :: California Case Law :: California Law :: U.S. Law :: Justia
