Q&A: Can My Ex-Husband Take our Children and Move Out of California Without My Consent?

The moveaway issue in California family law has been litigated heavily over the past few years. A proposed move in the residence of a child can be the “change in circumstances” required for the Court to revisit and modify child custody.

A 2004 case (In re Marriage of LaMusga) decided by the California Supreme Court refocused the family courts in the state by ordering that they must make a determination about whether or not a child should move out of the area with one of his/her parents based on what is in his/her “best interests.”

In a nutshell, if the parent opposing the moveaway can show the Court that there would be a detriment to the child — e.g. not in the child’s “best interests” — caused by the moveaway (frequently because that parent is OLYMPUS DIGITAL CAMERAhighly involved in the child’s life, activities, schooling, etc), then the Courtmust use its discretion to arrive at a custodial arrangement that is in the child’s “best interests.” Keep in mind that the detriment issue is a threshold issue — that is, the opposing parent must establish there will be a detriment to the child(ren) before the Court will step in and block a moveaway. In other words, there is no “automatic” right for a custodial parent to moveaway with a child. While the primary custodial parent is presumed to have the right to moveaway with children, a finding of “detriment” will block that move until the Court can further examine the issue. In a case where both parents are joint custodial parents, arguably no such presumption exists at all.

In looking at the “best interests,” the Court has discretion to look at many factors, and will often times appoint an expert child custody evaluator to investigate the matter and report back to the Court. The Court will usually look at the parent-child relationships and examine how they could be best maintained over a distance. The Court will generally also look at how embedded the children are into their local community — their friends, family members, education & schooling, extracurricular activities & sports, civic organizations, etc. — to determine whether or not the same opportunities are available in the new location.

If there is no order prohibiting relocation (or restricting a change in the children’s residency) in your custodial orders, then the first move is typically to file a motion with the Court (ex-parte motion if the move is imminent) making the best case you can that there would be a detriment to the children caused by the move and requesting that the Court temporarily block the move until it can determine what is in the children’s “best interests.” Remember that while the Court has the discretion to block the moveaway of the children, it almost never can block your ex from moving away himself.

To get more than just a general overview of moveaway law, your best bet is to consult with an experienced family law attorney as soon as you can so that you clearly understand what the law can and cannot do in your specific situation, and so that you can put together your game plan on how to oppose and stop your ex’s relocation with the children.

Good luck!

For more information about child custody and visitation or other California family law issues, please contact attorney Gary D. Sparks.