| Having practiced Family Law in California for over | | | | (2003) 108 Cal App 4th 839). |
| 34 years, one of the most volatile, and, | | | | 6. Can, and should the Court, in conducting such |
| emotionally charged issues that one can confront | | | | an evidentiary hearing, consider the minor child's |
| is child custody "move-away" disputes. | | | | children's "expressions of preference" regarding |
| Move-away disputes, simply stated, is where one | | | | the proposed move-away, assuming the child |
| parent proposes to move, with the parties' minor | | | | children are of sufficient age and capacity to form |
| child or children, either out of the city, county, | | | | an intelligent preference as to custody (ie 10-13 |
| state, or country of the original marital home. | | | | years of age and upwards)? The answer is also |
| The questions generally presented by the client | | | | "YES" (eg. see In re Marriage of Burgess, supra.). |
| are: | | | | B. RULES WHERE PARENTS HAVE SHARED |
| 1. Can he or she move with the child/children?, or | | | | PHYSICAL CUSTODY: |
| 2. Can I move and take the minor child/children | | | | 1. If the parents have a shared (50/50) physical |
| with me? | | | | custody arrangement, either historically, or, |
| The answers to these questions are not simple. Is | | | | pursuant to an existing Court order, then the |
| the proposed "move-away" going to upset and | | | | proposed "move-away" issue gets complicated, |
| anger the other parent, and, often times, the | | | | and, often times, very ugly. |
| child's/children's extended family (ie. grandparents, | | | | 2. Family Code, Section 7501 specifically provides |
| aunts and uncles)? Most assuredly. The following | | | | that: "(b) It is the intent of the Legislature to |
| are some of the applicable statutes and Court | | | | affirm the decision in In re Marriage of Burgess..." |
| decisions on this issue. | | | | 3. The Supreme Court in Burgess, in addressing |
| A. RULES WHERE ONE PARENT IS THE | | | | move-away issues in cases involving joint physical |
| "PRIMARY" CUSTODIAL PARENT: | | | | custody, states that the key issue for the trial |
| 1. If there is an existing Court order awarding one | | | | Court to decide is what is in the best interests |
| parent primary physical custody of the minor child | | | | and welfare of the minor child/children. And, the |
| children ( ie more than 50% physical custody), | | | | trial Court must evaluate what is in the minor |
| then, Family Code, Section 7501, is going to | | | | child's "best interests and welfare" on a case by |
| presumptively permit that parent to move, and, | | | | case basis. |
| take the minor child/children with him or her. | | | | 4. Factors the trial Court is required to consider in |
| 2. Family Code, Section 7501 provides: "A parent | | | | move-away cases involving joint physical custody |
| entitled to the custody of a child has a right to | | | | cases are:a) The child's existing contacts with both |
| change residence of the child, subject to the | | | | parents;b) The child's age, community ties, health |
| power of the Court to restrain a removal that | | | | and educational needs;c) The preferences of the |
| would prejudice the rights or welfare of the child..." | | | | child;d) The requirement that the minor child have |
| 3. As the California Supreme Court stated in the | | | | regular, and ongoing contact with both parents. |
| case of: In re Marriage of Burgess (1996) 13 Cal | | | | 5. Most California trial Courts, when confronted |
| 4th 25, the primary custodial parent is entitled to | | | | with a "move-away" issue involving parents with |
| change residences, and, does not have to show | | | | joint or shared custodial arrangements, opt to |
| or prove that the move is "necessary", UNLESS, | | | | refer the matter to a child custody move-away |
| the move is detrimental to the child. | | | | evaluator for an investigation, report, and |
| 4. From the non-custodial parent's perspective,the | | | | recommendation. This is quite costly for both |
| key issue is whether he or she can demonstrate | | | | parents (generally $3,000.00 and upwards, each), |
| that the proposed move-away is detrimental to | | | | and, time consuming. It is often times also not |
| the best interests and welfare of the minor child | | | | dispositive, since the losing parent generally |
| children. | | | | objects to the move-away evaluator's |
| 5. Is the non-custodial parent entitled to an | | | | recommendations, and, requests that the matter |
| evidentiary hearing on this issue? The answer is | | | | be set for a long cause evidentiary hearing, |
| clearly "Yes" (eg. see In re Marriage of Campos | | | | anyway. |