This area of California law is evolving and complex.

A common dispute between divorced parents occurs when one of them wants to move away and take the kids. Such a situation is not unusual. Many people want to "start over" after divorce and that may mean moving away for a job, a new relationship or to be close to extended family. But when the parent left behind wants to preserve his or her relationship with the children, the proposed move-away may be seen as a threat to that bond.

The relevant state statute says that a custodial parent has the "right" to change the child's residence, except that the court may prevent a "removal that would prejudice the rights or welfare of the child." The law also declares that it is the legislature's intention to affirm the California Supreme Court case of In re Marriage of Burgess as state "public policy and law ..." under these circumstances.

Notice of intention to move

When first entering a custody order, the court may include a requirement that a parent provide notice to the other parent before moving the child's residence for more than 30 days. If there is already a written agreement that the parent may move with the child, the parent must not give notice.

The applicable statute specifies that the parent proposing the move send the notice "[t]o the extent feasible ... a minimum of 45 days before the proposed change" to give them time to come to a new custody agreement. The notice must be sent through the mail with return receipt and copied to the parent's attorney.

Opposition to relocation

The noncustodial parent may try to show the court that the move would be detrimental to the child and request that the court order a change in physical custody to him or herself to allow the child to stay. A change in custody requires a showing of substantially changed circumstances, (which likely the move itself would be), that would make it "essential or expedient for the welfare of the children" that the court order a change in custody, quoting Burgess.

If the potentially left-behind parent makes sufficient showing of detriment, the court will reconsider custody in light of what would be in the children's best interest considering all factors relevant to all custody determinations. Of particular weight is the state's public policy in favor of frequent contact with both parents when in the child's best interest.

The standards will be different if the parents have joint physical custody or if the noncustodial parent wants to get custody to move away with the child.

Other potential changes

If the court allows the move, it may also grant modifications in the visitation arrangements to help preserve the relationship with the child such as longer visits during vacations and school breaks and more weekends. In addition, the court may order the parent moving away to pay for some or all of the costs of travel to enable visits or the court may adjust child support to account for this new expense.

This introduce a complicated area of California law that also depends heavily on the individual situation of each family. It is advised that any parent facing these issues on either side of the question seek legal representation and advice as soon as possible.

The family lawyers at Cullen, Murphy & Naples with offices in Riverside and Temecula represent parents on both sides of the move-away issue.