Move-Away Myths

As one Court appropriately put it, granting a parent’s request to move out of the county “is one of the most serious decisions a family law court is required to make.” The ramifications of the decision will undoubtedly affect both parents involved and their children for the rest of their lives. The law on California move-aways is not simple. In this blog post, we will discuss a few myths about move-aways in California.

Myth #1: Judges Don’t Order Move-Aways Unless There is a Really Good Reason

Until Marriage of Burgess, the seminal California Supreme Court on move-aways, California courts required the burden of proof be upon the moving party to demonstrate that the move was in the best interests of the children. More specifically, the moving party had to prove that it was “essential and expedient” and for an “imperative reason.”

Marriage of Burgess changed all that. In this decision, the Court found that a custodial parent had a right to move his or her children out of their county of residence unless the move prejudiced the rights or welfare of the children. Burgess and LaMusga (another important California Supreme Court case) effectively switched the burden to the noncustodial parent to show that harm to the child would result unless custody is changed to the noncustodial parent.

As noted in Mark T. V. Jamie Z and F.T. v. L.J, it is also important to remember that the Court must assume that the custodial parent is moving to the requested location. The Court cannot deny the move-away on the basis that the custodial parent would not move if the move-away is denied. This an important roadblock to the denial of many move-away requests.

Myth #2: If a Noncustodial Parent Proves That the Purpose of the Custodial Parent’s Proposed Move-Away is merely to frustrate visitation, the Move-Away Must Be Denied

Although a Court can deny a move-away solely on because it would frustrate the noncustodial parent’s relationship with his or her children, it does not have to. Burgess specifically held that even if the custodial parent is otherwise fit, such bad faith conduct may be relevant to a determination of what permanent custody arrangement is in the minor children’s’ best interest. Marriage of LaMusga, the reasons for the proposed move are just one of many factors the Court can consider in determining whether a move-away should be granted. This makes sense. If the noncustodial parent is a violent criminal and the custodial parent wants to move out of the county to frustrate his visitation, it is probably a better idea to place the children with the custodial parent regardless.

Myth #3: If the Move-Away is Granted, the Noncustodial Parent’s Child Support Obligation Must Increase

If a noncustodial parent has a, let’s say 35 percent timeshare that is reduced to 20 percent as a result of a move-away, all other things being equal, the noncustodial parent’s child support obligation will increase. However, pursuant to Family Code section 4062 and Wilson v. Shea, the Court may create what is called a “negative add-on,” a de facto reduction of child support that allows the noncustodial parent to afford the visitation costs required to maintain foster the relationship with his or her children. A noncustodial parent involved in a move-away case should not forget to ask the Court for this important relief.

The divorce attorneys at Bickford Blado & Botros have litigated many move-away decisions with success. We practice exclusively in the area of family law and have extensive experience in all aspects of divorce litigation and related issues.

Feel free to contact us if you are considering a divorce from your spouse, a legal separation, or have questions regarding child custody and visitation. Nancy J. Bickford is the only Certified Family Law Specialist (CFLS) in San Diego County who is also a licensed Certified Public Accountant (CPA) with a Master of Business Administration (MBA). Don’t settle for less when determining your rights. Call 858-793-8884 in Del Mar, Carmel Valley, North County or San Diego.

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