Move Away

Custody and visitation is an area of family law that often times is complicated and very contentious. It is made even more complicated when you have a situation that involves parents who share custody and one wants to move with the child. What happens?

First, it is important to note that the court considers a variety of factors, known as the LaMusga factors, in determining whether or not a parent will be allowed to move with the child. In In re Marriage of LaMusga, the Court listed the following factors for determining whether to modify a custody order to allow a parent to move away with the child: (1) The reason for the proposed moved; (2) the children’s interest in stability and continuity in the custodial arrangement; (3) the distance of the move; (4) the age of the children; (5) the children’s relationship with both parents; (6) 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; (7) the wishes of the children if they are mature enough for such an inquiry to be appropriate; (8) the reasons for the proposed move; and (9) the extent to which the parents currently are sharing custody. In re Marriage of LaMusga (2004) 32 Cal.4th 1072, 1101. However, these are not the only factors considered. The court also considers factors as set out in In re Marriage of Burgess (1996) 13 Cal.4th 25. Those factors consider the child’s community ties; the child’s health and educational needs; the child’s circle of friends, etc. All are important, and both parents should consider these before asking the court to modify the present custody order with regards to changing the child’s residence.

But what if one parent is determined that they want to move away with the child because of say a job offer? Such was the case in a recent decision in Andrew V. v. Superior Court (Jessica V.) (2015) 234 Cal.App.4th 103, 183. Mother and Father shared joint physical and legal custody of their children. Mother requested an order permitting her to move from CA to WA due to a job transfer and promotion. Father disputed the move, but the trial court issued a “temporary” order allowing Mother to move with the children. Father objected on grounds of CCP 917.7. That statute provides that an order “allowing, or eliminating restrictions again, removal of the minor child from the state are stayed by operation of law…for a period of 30 calendar days from the entry of judgment or order by any other trial court.” The trial court agreed with Mother that the statute does not apply to temporary orders. That ruling was overturned by the appellate court which issued the requested write or mandate and stay order sought by Father. In its decision it was explained that there is no such exception for temporary orders, and that the purpose of the statute is to ensure stability and continuity for the children.

As made apparent, the issue of move-away orders can be extremely complicated. In Andrew V the trial court relied on a custody evaluator’s report recommending the interim move, and yet the court of appeals overturned the decision. There is no cut and dry answer as to whether or not the court will grant a move-away or not. Here at Mello & Pickering, LLP we can help develop a strong case for you, whether you’re the parent moving or the parent staying. With 40 years of combined experience, we can help you to ensure that you and your children’s best interests are protected.

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