The practice of family law can be both rewarding and emotionally trying. I often ask my peers what cases and situations are the most difficult and challenging and without a doubt everyone agrees that relocation cases can be the most difficult and stressful of them all. Mediators and attorneys do not like relocation cases because there is no room for negotiation. Judges do not like relocation cases because it is often impossible to choose between two good parents who are both acting in good faith. The most salient finding has been that whether the Court allowed or denied the move- One parent is always left emotionally devastated.

This is not to mention the enormous burdens that fall on the children in relocation cases. The largest burden being the burden of travel, whether by car, train or plane. The children are often the ones having to travel the distance between one parent and the other. Then there is also the burden associated with having less contact with a parent. Most children find electronic access via Skype, email, and telephone to be less satisfactory than visiting with a parent in person.

California experienced an exodus of its residents beginning in 2020 and lasting throughout 2021. This widely termed “CalExodus”, saw more than twenty percent of the population leaving the state in one year. One consequence of this? An increase in relocation cases in family law courts throughout the state.

To understand when a parent is allowed to relocate with their child, we need to understand the basics of California family law as it relates to move-away cases.

Understanding California Law on Relocation Requests
Prior to 1980, when California became the first state to authorize “Joint Custody”, move away requests were not complicated at all. At that time custodial parents could move with children, usually without restriction. At most, they might have to give notice of the move, but there were rarely provisions that interfered with this move. This would result in the non-custodial parent having to disengage and become marginally involved in their child’s life following the move.

With joint custody and the notion of shared parenting, which became more common in the 1980s, came the influx of relocation cases. California family law pertaining to relocation requests is essentially dependent on the type of custody and visitation the parties share. In an initial custody determination, the Court has the widest discretion to choose the parenting plan that is in the “best interest of the child”- And this includes determining whether a move away would be in the child’ best interests. However, this standard changes if the move away contest comes after a final (“permanent”) custody order is already in place- ie., in a custody modification proceeding. In that case, the standard shifts to the “changed circumstances” rule: The noncustodial (nonmoving) parent has the “substantial burden” of demonstrating a material change of circumstances of a kind that renders it “essential or expedient” for the welfare of the children that custody be modified.

California Family Code § 7501 has always stated, in essence, that the custodial parent has a presumptive right to move the child, absent a showing of harm to the child. This means that by statute, the parent with sole physical custody of the children, has the presumptive right to change the children’s residence. Courts will not interfere with this move unless the move is detrimental to the child. However, to have this “presumptive right” to move, the parent must have been awarded custody by way of a final judicial custody determination.
In 1996, the California Supreme Court held in the In re Marriage of Burgess case that “a parent seeking to relocate after dissolution of marriage is not required to establish that the move is “necessary” in order to be awarded physical custody of a minor child.” Similarly, a parent who has been awarded physical custody of a child under an existing custody order also is not required to show that a proposed move is “necessary” and instead “has the 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 2001 in California’s landmark relocation case, In re Marriage of LaMusga, the Supreme Court stated that the “noncustodial parent has the burden of showing that the planned move will cause detriment to the child in order for the court to reevaluate an existing custody order.” The Supreme Court reaffirmed that, according to California law, the noncustodial parent has the initial burden of showing that there is detriment in the proposed move. This substantial change in California case law created a two- part test: The noncustodial parent must first show detriment associated with the move of the child. Then, if that showing is accomplished, the court needs to determine whether a change of custody is in the best interests of the child. This two-part test has been a key in court decisions after LaMusga.

LaMusga also included a variety of factors that Courts must consider before deciding whether to modify a custody order in light of the custodial parent’s proposal to change the residence of the child. These factors include:

  • the children’s interest in stability and continuity in the custodial arrangement;
  • the distance of the move; the age of the children;
  • the children’s relationship with both parents;
  • the relationship between the parents including, but not limited to, their ability to communicate and cooperate effectively and their willingness to put the interests of the children above their individual interests;
  • the wishes of the children if they are mature enough for such an inquiry to be appropriate; the reasons for the proposed move;
  • and the extent to which the parents currently sharing custody.

Addressing International Move Away Requests
International relocation cases bring with them an entirely new host of considerations for the Court. A proposed relocation of minor children to a foreign country raises special issues. In addition to the factors affecting a domestic move-away, courts must also consider:

  • Cultural conditions and practices in the foreign country
  • Visitation difficulties because of the distance from California
  • Jurisdictional issues making enforceability of the California custody/visitation order problematic

One crucial factor is whether the country to where the moving parent wants to take the child is a partner with the United States on the International Hague Convention on Private International Law. The Hague Convention is designed to help host countries obtain the return of children who have been removed to another Hague Convention country, but non-signing countries will not participate in that. The thought- and hope- is that if a child is moved legally to a Hague Convention country, it is anticipated that the country to which the child has moved will support court orders and enforce access promised in those orders from the original home country. Furthermore, courts are authorized to impose restrictions associated with international moves including the ordering of bonds to help ensure that funds are available if the orders for access are not followed.

Practical Advice for Putting Together Your Relocation Case
If you are a parent looking to relocate with your child, then it is essential that you adequately prepare prior to bringing your case before the court.

For one, it is important that the court understand the reasons for your proposed move. Be prepared to explain why the move is crucial and necessary. Be mindful that if your proposed move is done so in “bad faith”, as in the proposed relocation is solely for the purpose of frustrating the other parent’s relationship with the child, then the Court could very well deny your request to move even if you have sole custody.

Furthermore, be prepared to address certain things such as where your child will attend school, where you will live, where you will work, as well as the connections and relationships you have and plan to make within this new community. It is important that the Court know that the proposed move will serve the best interests of your child in every respect. Statistics relating to the educational system, crime demographics and social capital of the new location are always helpful. If your case involves a foreign country relocation request, consider presenting expert testimony on the cultural issues and perhaps the country’s laws. To identify appropriate experts, consider contacting the foreign country’s embassy or consulate, or the department of a university offering courses on its culture or political system.

Additionally, courts will often consider the custodial history, the attachment, and the relationship the child has had with both parents. If you are the parent wanting to relocate, then be prepared to present a parenting plan that supports access with the other parent. It is important that you demonstrate to the court that you will be acting in the role of a facilitative gatekeeper and will continue to encourage and support the child’s relationship with the other parent. Make sure to highlight your efforts to support healthy co-parenting with the other parent. Demonstrating a history of cooperative parenting on your part may tip the scales in favor of your request.

Prepare a parenting plan to present to the Court that supports access to the child with the non-custodial parent. Be prepared to provide the court with a detailed schedule addressing holidays and breaks from school and time set aside for weekend visits with the non-custodial parent, if applicable. It is important that the Court know how you plan to handle the logistics of this parenting schedule.

It is also important to address your child’s needs as far as adaptability is concerned. Some children are more adaptable and are less likely to have difficulty moving, changing schools, and making new friends. Other children may have special needs that may make it tougher to make such changes. Be sure to address specific school or medical related issues should they be relevant to your case. Providing the Court with information relating to the child’s temperament and expected ability to adapt to the changes associated with the proposed relocation is very important.

Conclusion

Relocation cases can be difficult and emotionally trying for everyone involved. The adverse effects of divorce are further exacerbated by today’s increasingly mobile society. Today, more than ever, multiple moves by each parent are common as people seek better employment, remarriage, or just a fresh start in life. California courts have attempted to minimize the adverse consequences of relocation by keeping the best interests of the children paramount.