There is only one type of case more heart-wrenching than a move-away case: an international move-away case. While domestic move-away cases are complicated enough, international move-aways add additional layers of complexity that must be considered by both parties and the Court. Currently, there are only 4 published family law move-away cases in California: Marriage of Condon (Australia), Marriage of Lasich (Spain), Marriage of Abargil (Israel), and J.M. v. G.H. (Israel). In all four cases, the trial court granted the international move-away and in all 4 cases, the Mother was allowed to move to the foreign country or, in the case of Marriage of Condon, remain there.
In domestic move-away cases, the Court must consider the LaMusga factors. These include:
- The children’s interest in stability and continuity in the custodial arrangement
- The distance of the move
- The age of the children
- The children’s relationship with both parents
- The relationship between the parents including, but not limited to, their ability to communicate and cooperate effectively and their willingness to put the interests of the children above their individual interests
- The wishes of the children if they are mature enough for such an inquiry to be appropriate
- The reasons for the proposed move
- The extent to which the parents currently are sharing custody.
In Marriage of Condon, the Court determined that there are three factors the Court must consider in every international move-away. These are distance, culture, and jurisdiction.
The Condon Court noted that, except for those of considerable means, a move away to another continent could be the equivalent of a termination of a noncustodial parent’s visitation rights. Thus, the trial court is tasked with ensuring that there are enough means to ensure the relationship between the child and the noncustodial parent will continue.
The Condon Court noted that move-aways to different countries can present cultural problems. Not all countries respect women’s rights, the right to vote, etc. Whether or not a country could deny a child important rights is yet another important factor to consider.
This is the most difficult problem. The Condon Court noted that while custody orders made in California are enforceable in the rest of the country, this may not be the case in other countries. Before granting an international move-away, the best interests of the child require guaranteed enforce-ability of the California order. To maintain enforce-ability in California, parties may be required to stipulate to the ongoing jurisdiction of the California court, register the order in the foreign country before departure, post a bond, and forfeit child/spousal support in the event of a violation of the California order.
The jurisdictional problem is likely the most difficult because it usually requires the trial court to be creative to create an order that will compel compliance by the custodial parent. Different cases have offered different solutions. It is also, beyond a doubt the most important. Enforce-ability is a threshold question. If the potential move-away order is not enforceable, by definition, it is not in the best interests of the child and thus the request must be denied.
The divorce attorneys at the Law Offices of Nancy J. Bickford have litigated multiple international move-aways with success. We practice exclusively in the area of family law and have extensive experience in all aspects of divorce litigation and related issues. Nancy J. Bickford is the only attorney in San Diego County representing clients in divorces, who is a Certified Family Law Specialist (CFLS) and who is actively licensed as a Certified Public Accountant (CPA). Don’t settle for less when determining your rights. Call 858-793-8884 in Del Mar, Carmel Valley, North County or San Diego.