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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