A parental move-away case describes a situation in which one parent – typically the parent with primary custody – seeks to move a child to a new location after a divorce. A parent may need to move a child to a new city, state or country for many reasons, but the most common is for a new job or a new marriage or to be closer to family.
Parental move-away cases are some of the most complicated types of cases in family law. Whether you are attempting to move away with a child or wish to stop your ex from relocating, it is critical to work with a lawyer in San Jose for professional legal assistance.
Contact Schoenberg Family Law Group to request a consultation with a San Jose parental move-away lawyer today.
What to Expect With a Parental Move-Away Case in California
There are two ways to lawfully move a child to a new location after a divorce. The first is to reach a settlement with your ex-spouse and have a judge sign off on a new parenting plan. This plan must describe how you and your ex-partner will divide physical custody across the proposed distance, including holidays, vacations and special occasions.
The second is to obtain a court order granting you the right to change the child’s residence. Section 7501 of the California Family Code states that a parent with primary custody of a child has the right to relocate the child, subject to the power of the court to prevent a move away that would compromise the rights or welfare of that child.
It is against the law to move a child without a judge’s approval. If your ex has moved away without a court order, you have legal rights as a parent. You can request a new custody arrangement from the courts with help from a family law attorney, as well as press criminal charges under California Penal Code Section 278.5 for maliciously depriving you of the right to custody or visitation of your child.
What Factors Does a Judge Look at When Deciding a Parental Move-Away Case?
Whether or not a judge grants a parental move-away request depends on how the move will impact the child. A judge will always rule according to the best interests of the child after weighing the factors relevant to the specific case. A judge may ask questions such as:
- What is the distance of the proposed move?
- Is the parental relocation necessary or frivolous?
- Will the move interfere with the child’s connections to his or her friends, family members, classmates and community?
- Will the relocation impact the child’s relationship with the other parent?
- Will the child suffer detriment to his or her physical or emotional health?
- What are the child’s wishes, if he or she is mature enough to answer?
In general, a judge will not grant a parental move-away request if he or she believes it would be detrimental to the child, most likely due to the inability to maintain frequent and continuing contact with the noncustodial parent. If the judge does grant the request, the custodial parent will have the legal right to move away.
How a San Jose Parental Move-Away Lawyer Can Help
California Family Code Section 3040 states that the courts will always do their best to allow a child to maintain contact with both parents after a divorce. An attorney can use this to frame your request as a parent trying to relocate or prevent a move-away.
For example, your lawyer can show that your ex’s move would make it impossible to maintain your relationship with your child. Conversely, your lawyer could demonstrate that with your proposed parenting plan, your relocation would allow the child to maintain contact with both parents. The right San Jose parental move-away lawyer will build your argument based on the unique facts of your case.
For more information about parental move-away or relocation cases in California, contact Schoenberg Family Law Group for a consultation with an attorney. We understand the emotional stress that comes with these cases, as well as how to protect your rights as a parent and your child’s welfare. We will fight for the best possible resolution.
Please call 415.286.5372 today or contact us online for a consultation in San Jose, California.