Following a divorce, either parent may decide to move away due to a variety of reasons. Sometimes it’s because either parent can no longer afford to live in the same city, or sometimes a move is necessitated by a new job opportunity in a different state. No matter what the reason is for the move, the important thing is that the custodial parent cannot arbitrarily decide to pick up and move without the consent of the non-custodial parent if they share joint custody.
If the custodial parent makes the decision to move, it may be entirely possible for that parent to work an amicable agreement out with the other parent. If the custodial parent needs to move a relatively short distance away, it may not affect the custody agreement at all and alternate arrangements can be made. However, if the parties cannot agree on the terms, or if the non-custodial parent is completely against the move, it will be necessary to file a motion with the court. In California, a “move-away case” originates when the custodial parent makes the decision to move far enough of a distance that will disrupt the current custody and visitation arrangement. Whether it’s the next state over or clear across the country, if the move ultimately impacts the standing custody order, a new custody and visitation order will have to be established with the court system.
Once the custodial parent decides they will be moving, one of two things can happen. The custodial parent that will be moving away can file a motion with the court asking for permission to move with the child(ren). In the alternative, the non-custodial parent can also file a motion with the family court requesting a change of custody which would allow the child(ren) to stay local. Rather than allow a Judge to decide if a parent can move and what the new visitation schedule will be, the parties may seek the help of a private mediator who is knowledgeable about California child custody laws. During this mediation session, both parents try to reach an agreement that is in the best interest of the child(ren) and which will work for all parties involved.
If the parents cannot agree on the points of discussion, they will have to go to court and a Judge will decide their fates. If the parents have joint custody, the Court typically holds what is called an “evidentiary hearing” which allows the Judge to make a decision. If the parents go to court, it could take months before they get to an evidentiary hearing. During this hearing, testimony from the parents and child custody evaluators may help the Judge reach the best decision. The Judge will look at all the facts involved in the case and will base his or her decision on several factors, including the importance that the child maintains a stable environment, the distance of the move, the age of the child(ren), their relationship with both parents, the preferences of the child(ren) on where they want to live (whether they are old enough and mature enough to state a preference), whether detriment will result if the child moves, and many other factors.
Usually, there are no “easy” answers or decisions when it comes to move-away cases and emotions can run high during the process, especially if the parents go to Court and let the Judge decide. Working with a mediator with the hopes of coming to an amicable agreement on child custody and visitation is usually the best opportunity for both parents to discuss their objections, motivations for the move, and to do so in a respectful environment. A mediator can help facilitate the discussion and suggest ways of communicating which will help both parties discuss their particular feelings. Just remember, at the end of the day, the goal of mediation during move-away cases is to create an arrangement with both parties that will not only be in the best interest of the child(ren) but that will also allow the child(ren) to have a continuing and stable relationship with both parents.