The COVID-19 pandemic has many people facing uncertainty in their jobs, careers, as well as their personal lives. According to recent news reports, the coronavirus has spread rapidly across California and is most prevalent in the Bay Area and Southern California counties. The rapid spread in recent months has led more people to consider relocating in the search for better economic opportunities and has parents considering relocating with their children for their health and safety. However, relocating with a child as a divorced parent is not an easy task, and if you share physical custody of your children with your former spouse, it’s important to know what you should consider before deciding to relocate with your children after your divorce.
In California, a parent who has custody of a child does not have the right to automatically change the residence of that child. The court has the ultimate say over whether a child can move. The primary consideration is whether the move would prejudice the rights of the other parent or welfare of the child. Generally, whether you can move with your children depends, like all other matters concerning custody, on whether the move would be in the best interests of your children. It also depends on whether there are custody orders in place, and whether those orders are intended to be final. It’s important to note that the court is not permitted to prevent you from moving. The question is not whether you can move, but rather what orders for custody should be made in light of your proposed relocation.
Whether you will be permitted to move with the children depends on the facts of your case and whether such a move would promote your children’s best interests including frequent and continuing contact with the other parent. The court will hold a hearing to evaluate all the factors bearing on the best interests of your children, including the effects of your proposed move on their welfare. In addition to the factors bearing on the best interests of your children, the court typically considers the following factors when making an initial custody determination in a move-away case:
- The children’s emotional bonds with you and your spouse
- Your and your spouse’s role in caring for your children, including physical and emotional care
- The contact your children presently have with you and your spouse
- The ages of your children
- Any community ties your children may have
- The health and educational needs of your children
- Your children’s need for continuity and stability of custodial arrangements
- The harm that may result from disrupting established patterns of care and emotional bonds
- The distance of the proposed move
- Where appropriate, the preferences of your children
Your subjective reasons for wanting to move are not relevant to the “best interests” analysis the court must undertake. If the basis for your proposed relocation is not in good faith, but rather to frustrate your spouse’s contact with your children, then whether the move is necessary becomes relevant, as do your reasons for wanting to move. The court may take into consideration bad-faith relocation requests when fashioning its custody order.
The requirement that parenting times serve the children’s best interests tempers California’s policy favoring “frequent and continuing contact with both parents.” In a move-away case, this policy may be satisfied if the court provides your spouse with liberal visitation. The nature of this visitation necessarily depends on the distance of your intended relocation. It also depends on the roles both you and your spouse have played in your children’s lives, the above factors, and, of course, your children’s best interests. If the Court allows the move, it will then fashion a custody order that upholds this policy as best as possible, in light of the geographic distance between you and your spouse following your proposed move.
If your former spouse wishes to relocate with the children, and you oppose that relocation, who bears the burden depends on what percentage of time each of you have the children. Because every relocation case is fact-specific, there is not a general rule as to when the court will grant a relocation request.
If you have questions or find yourself in a situation where a custodial parent wishes to relocate with your child against your wishes or a court order, you should contact an experienced family law attorney.
Written by Debra Schoenberg