Tuesday, July 24, 2012

Move Away Cases in California


What happens in a situation where the custodial parent after a permanent custody determination wants to get up and move away?  What does the non-custodial parent do?

The non-custodial parent has a large hurdle to cross.  By statute, the parent with custody of the children is presumed to have the right to move away with the children.  Cal. Fam. Code § 7501.   Family Code 7501 has codified the California Supreme Court Case of Marriage of Burgess (1996) 13 Cal.4th 25.)  In Burgess, the parent with custody of the children decided to move 40 miles away from Tehachapi to Lancaster, CA.  The Supreme Court stated that the custodial parent does not need to show that the move is “necessary.”   This rule will only apply in situations where there has been a final custody determination not where there has only been a temporary custody determination. 

The non-custodial parent has to prove that the move is a detriment to the children.  What comes to mind is the detriment of the child of not being able to continue the same relationship with the non-custodial parent.  This is just one factor in the court’s determination of whether or not there is a detriment.  So the non-custodial parent must file a motion with the court and show a detriment in their motion.  In these types of move-away cases it is best to consult an Attorney to draft the motion because they understand the legal standards and procedural loopholes in order to get you the best chance of succeeding on your motion.

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