Moving to another state is a complicated and stressful endeavor, even in the best of circumstances. For divorced parents, however, this already intense process becomes another beast, altogether.
While California doesn’t strictly prohibit parents from moving out of state, there are several extra steps you’ll need to take if you want your child to move with you.
Here’s a closer look at how California courts handle parental relocation requests, and some of the extra boxes you’ll need to check, if you want to move out of state with your child.
Step 1: Determine the Distance
First off, so long as your move is within a certain radius (and, presumably, you’re still in California), you’re probably okay to move around without having to worry about violating a custody order.
For a lot of parents, this geographic restriction is fifty miles from the child’s home county. The boundaries can differ between cases, though, so it’s best to be certain before testing them out.
If your move is within the range specified in your divorce order, you do not need permission to change the child’s residence. Updating your address with both the court and your ex is essential, though, to make sure you don’t violate your visitation schedule, or miss important notices.
If your proposed move is outside the radius, then prepare yourself for extra paperwork, and read on to step two…
Step 2: Talk to Your Ex
For moves that break the geographic boundary, the next step to take is to have a chat with your child’s other parent—and yes, we understand that this is sometimes easier said than done.
Still, parents can save a lot of time and money by working things out between themselves, instead of rushing back to court. You may not be able to solve everything with one phone call, but even a quick game of mediation is better than a full court battle, especially since judges are almost always willing to sign off on an agreement that you reach together.
Keep in mind, that even if you agree, your changes still need judicial authorization, before the new arrangement is enforceable.
Step 3: Consider Your Custody Order
Assuming you and your ex can’t agree (and you still want to move), step three is to evaluate your current custody order.
In California, judges assign custody by giving rights to one parent, alone (sole custody), or as shared power to both (joint custody). While you’re reviewing which type applies to your situation, be sure to double check which parent is the primary custodian (or, in other words: who your child lives with most of the time).
More likely than not you’re already intimately familiar with this information (after all, it’s kind of hard to miss a child jumping up and down on your couch every day). Still, it’s a good idea to review, since custody arrangements directly determine which step you take next.
Step 4: Sole Custodians File Written Notice
A parent with sole custody has what courts call a “presumptive right” to move their child out of state. This is basically just a fancy way of saying “the benefit of the doubt to make all decisions.”
Despite this generous presumption, parents with sole custody still need to file written notice of their intentions, before they move. This notice must be given at least forty-five days before relocation, to give the child’s other parent a chance to voice objections, and to revise visitation schedules, if necessary.
A Non-Custodial Parent Can Challenge Custody
If you are a non-custodial parent—and are adamantly opposed to the move—you can do more than just object. Instead, you may request the court reevaluate your custody agreement. This is called custody modification.
In a custody modification case, the non-custodial parent challenger carries the burden of proof. This means that it’s your responsibility to show adequate proof that the arrangement isn’t in your child’s best interest, and that the court should reassign custody to you.
However, considering that a prior court already awarded your ex sole custody, this is a difficult standard to meet. Most custody challenges are not granted, and non-custodial parents should discuss legal strategies with an attorney before pursuing this expensive endeavor.
Step 4: Joint Custodians File for a “Move-Away” Order
California courts typically consider co-parenting arrangements to be “joint” whenever the non-custodial parent spends at least 45% of the time or more with their child. Where it’s less than 30%, the primary custodian is presumed to have sole custody.
If you and your spouse share joint custody, you will need to do more than just submit written notice. Instead, you will need to request a formal “move-away” order with the court—and this is true, even if you are the child’s primary residence.
But how does a move-away order differ from written notice? We’re glad you asked.
The Custody Reset Button
The best way to think about a “move-away” order, is to view it as a reset button.
If the court grants your request, this decision ripples down, affecting all aspects of your custody agreement. Hence, in a move-away situation you can’t simply redraw geographic boundaries. You have to reset the terms of your entire custody order.
This clean slate situation is riskier than you might think, because it essentially starts your custody negotiations over from scratch. It allows a judge to reevaluate your parenting abilities, and redistribute parental powers.
In other words: it might not go the way you want it to.
After evaluating the facts, a judge can just as easily decide to give the child’s other parent primary custody, as they can grant your move-away request. So it’s important to have strong, compelling arguments before bringing this type of petition to the court.
Step 5: Attend Your Hearing
The final step to moving out of state with your child is to attend a hearing, where your judge will evaluate all the evidence.
Unfortunately, there isn’t a formula for how courts deny and grant relocation requests. Instead, your judge will make the decision by weighing factors in your unique situation, which will likely include:
The reason for your move;
How far it is to the new location;
Your child’s relationship with both parents;
The parents’ relationship with each other;
What kind of burden the move would place on visitation rights;
The child’s need for stability;
The child’s emotional, educational, and medical needs;
If there’s a support system in the new location;
Whether there’s extended family in the new location; and,
Any other benefits the child would receive by moving (such as the security of a parent’s increased income).
This list isn’t exhaustive, and judges are free to include any relevant factors when deciding which course of action is in your child’s best interest.
At the end of your hearing, your judge will either accept or deny your request. If denied, you can probably still move, however, you’ll likely have to do it without your child (thereby giving up primary custody). If approved, the terms of your new custody agreement will be finalized into order, which you will file with your county clerk.
Parental Relocation Attorneys in California
If you have more questions about how you can move out of state with your child, we want to hear from you. Call the Maples Family Law team at (209) 989-4425, or get in touch online, and let help you move out of state with your child.
If you’re a parent whose custody agreement isn’t working out, you probably already know that you have to have valid reasons to modify child custody… but what are those reasons, and what can you do if one of them applies?
Reasons to Modify Child Custody: The Basics
The court won’t grant your request to modify child custody if you can’t provide a valid reason for doing it. Typically, the courts favor an existing custody agreement over making changes – unless, of course, there’s been a significant change in your (or the other parent’s) circumstances.
Either parent can file a motion to modify child custody. The catch: The person filing for the change will have to show the court why it’s in the child’s best interest.
5 Common Reasons to Modify Child Custody
There are several reasons parents give for asking to modify an existing custody agreement. Some of the most common include when one parent:
Needs to relocate because of work or personal reasons
Is exercising religious practices that are harming the child
Has put the child in a dangerous environment
Is preventing the other parent from seeing the child
Has failed or is failing to properly care for the child
Let’s take a closer look at each – and remember, these aren’t the only reasons a court can modify custody. There are dozens more, and every case is different.
When a mom or dad needs to relocate – whether it’s for work or personal reasons – the parents may need to change the entire custody agreement. For example, if the child spends every other weekend with one parent, but that parent is moving out of state, it would be unreasonable to expect the custodial parent to make travel arrangements that frequently. It would probably be pretty hard on the child, too, depending on how far away the other parent was moving.
A judge won’t change custody because of one parent’s religion unless there’s proof of harm to the child. Dress codes, dietary restrictions and other activity restrictions aren’t usually big enough reasons to modify child custody. However, if there is proof of harm to the child – such as abuse or other issues – or when one parent threatens to take the child away to practice a particular religion (it happened in New York), the court may find that a change is in order.
If one parent puts the child in a dangerous environment – such as taking the child along to buy drugs or has an unsanitary and dangerous home (like in the case of hoarding) – the other parent may be able to ask the court to modify custody. There are several places and circumstances that can create a dangerous environment for kids. If you’re not sure whether something qualifies, talk to your Stockton custody lawyer about the situation. She’ll be able to help you sort things out.
#4. Preventing the Other Parent From Seeing the Child
If there’s a custody order in place, both parents are supposed to stick to it – it’s an official court order. However, when one parent prevents the other from seeing or spending time with the child, a modification might be necessary. This is extremely serious, and it’s harmful to the child (and everyone else involved). If this is going on in your situation, talk to an attorney about what you can do to help salvage your relationship with your child. You may also want to talk to a therapist with your child.
Every parent has a responsibility to care for his or her children. When one parent fails at that responsibility, such as by failing to provide adequate food, shelter and clothing – or when the parent fails to emotionally care for the child – you may have a reason to modify child custody.
The bottom line, though, is that the parent asking for the modification has to show that there are significant changes that make the change necessary. You’ll have to provide the court with proof in order for the judge to consider your request.
Do You Need to Talk to a Lawyer About Your Reasons to Modify Child Custody?
If you need to discuss your situation with an attorney and find out what your options are as far as changing your custody agreement, we may be able to help you. Call us at 209-546-6870 to schedule a consultation with a caring, compassionate and knowledgeable Stockton divorce attorney now. We can also help you with issues related to parentage and child custody, spousal support and other divorce issues.
If your child custody arrangement isn’t working out – or if it’s no longer in your children’s best interest – you may be able to file a motion to modify custody.
But what is a motion to modify custody, and how does it work?
Here’s what you need to know.
What is a Motion to Modify Custody?
A motion to modify custody is a legal document your attorney can file with the court on your behalf. (A motion is a request for the court to do something.)
The judge assigned to your case will look at your motion and make a decision based on what’s in your child’s best interests. In order to file a motion to modify child custody, you have to have the legal grounds to do so.
If you want to change your custody agreement, you’ll have to show the court that there’s been a change in circumstances. That change in circumstances must make your current agreement unworkable. Some common reasons people file a motion to modify custody include one parent:
Needing to relocate because of work or personal reasons
Exercising religious practices that are harming the child
Putting the child in a dangerous environment
Preventing the other parent from seeing the child
Failing to properly care for the child
These aren’t the only reasons people have for changing their custody arrangements – they’re just some of the most common. If you feel your circumstances (or your child’s circumstances) have changed enough to justify asking the court to modify your order, talk to your attorney. He or she can explain how the court might view your request, as well as file the appropriate paperwork.
When Can You Ask the Court to Modify Your Custody Arrangement?
You can ask the court to modify your custody arrangement any time there’s a significant change in circumstances. As long as the judge in your case has issued a custody order, you can file a petition to change it.
What Should You Include if You Ask the Court to Change Your Agreement?
If you would like the court to change your agreement, you’ll need to come up with an alternative. Prepare a plan that details scheduled visits and all the other changes you want to make. That way, your attorney can get it on the judge’s desk – and the judge can make a decision based on facts.
You’ll have to explain why you think it’s necessary to change the existing order. If your child’s other parent disagrees, he or she will have the opportunity to say so (and explain why).
Your attorney will be able to give you guidance on modifying your custody agreement, and he or she might even suggest that you talk to a mediator so you and your spouse can agree.
In some cases, the courts will take the child’s preference into consideration. Typically, though, the judge won’t allow very young kids to state a preference for living with one parent or the other. If your child wants to have a say in the matter and the court allows it, the judge will consider your child’s:
Age
Maturity level
Intelligence level
Motivations
What if the Proposed Plan Isn’t in Your Child’s Best Interests?
The court’s main concern is always the best interests of the child. That means that if you submit a proposed change that isn’t best for your child, the court can – and will – kick it back and tell you to try again. Remember, the legal system in California is set up to protect children… and the law recognizes that a child has a right to both of his or her parents.
Do You Need to File a Motion to Modify Child Custody?
If you need to ask the court to change your custody agreement, we may be able to help you. Call us at 209-546-6870 to schedule a consultation with a caring, compassionate and knowledgeable Stockton divorce attorney now. We can also help you with issues related to parentage and child custody, spousal support and other divorce issues.
