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Thread: other parent is moving out of county

  1. #1
    tatum32fs Guest

    other parent is moving out of county

    What is the name of your state? california

    I was notified 2 days ago that my ex is relocating to another county about 1 hour away. I filed a petition with the court for a re-evaluation and to keep her from moving, until new custody and visitation could be arranged. she filed a motion with the court today and they moved our court date up to next week because she claimed to have told me about the move last month. she is lying. what can i do? and what can i expect to happen with the vistitation of my daughter? she has contantly tried to keep me from visiting with and forming a bond with our child. this is just another way of keeping me from seeing her. what can i do?
  2. #2
    usmcfamily is offline Senior Member
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    How did she notify you? Was it verbally or in writing ?
  3. #3
    tatum32fs Guest
    verbal at my job 2 days ago
  4. #4
    tina7 Guest
    I'm not sure about CA but I know in WI the parent with primary placement can move anywhere within 150miles (I believe) of the other parent.

    What are the arrangements for picking up and dropping off? Who does each?

    If she is responsible for either the dropping off or picking up and you have a court order for your visitation times. She can not deny you your visitation, if she does contact the family court commisioner and she could be found in comtempt. Hope this helps.
  5. #5
    tatum32fs Guest
    I have visitation every other weekend and tuesdays and thursdays. we share transportation on the weekend but during the week it is my responsibility to pick up and drop off
  6. #6
    I AM ALWAYS LIABLE is offline Senior Member
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    My response:

    The law in California regarding "move-away notice" or "permission" was changed.

    Unless you have a "Joint Custody" order, the law was changed and she didn't have to give you "notice" of her move-away. All she was obligated to tell you is where your child is now residing.

    By statute, the parent with physical custody of the children has the presumptive right to change the children's residence--i.e., to move away with the children; courts will not interfere with that decision (enjoining the relocation or changing custody) unless the move is detrimental to the child. "A parent entitled to custody of a child has a right to change the residence of the child, subject to the power of the court to restrain a removal that would prejudice the rights or welfare of the child." [Ca Fam 7501; Marriage of Burgess (1996) 13 Cal.4th 25, 32, 51 Cal.Rptr.2d 444, 449; see Marriage of Biallas (1998) 65 Cal.App.4th 755, 762, 76 Cal.Rptr.2d 717, 721--reversible error not to consider custodial parent's presumptive right to change child's residence]

    Custodial parent bears no burden of proof:
    Whether the move-away dispute arises upon an initial judicial custody determination or after a custody order is in place, a custodial parent seeking to relocate with the children bears no burden of establishing that the move is "necessary." As noted earlier, there is no statutory basis for imposing a burden on either parent to justify a choice of residence as a condition of custody. [Marriage of Burgess, supra, 13 Cal.4th at 28-29, 34, 51 Cal.Rptr.2d at 447, 450; see Marriage of Biallas, supra, 65 Cal.App.4th at 762-763, 76 Cal.Rptr.2d at 721--reversible error to put burden of persuasion on custodial/move-away parent]

    Rather, in move-away contests, the burden rests with the noncustodial parent seeking a change of custody. "[T]he basic structure of placing the initial burden on the parent seeking a change of custody, not a change of location, remains . . . Such an initial burden is not only consistent with the [Ca Fam 7501] presumptive right . . . of a custodial parent to change residence . . . but also accords with the reality of an increasingly mobile society." [Marriage of Whealon (1997) 53 Cal.App.4th 132, 141, 61 Cal.Rptr.2d 559, 564-565 (brackets added; internal quotes and citations omitted)]

    Cases holding a relocating custodial parent is required to prove that the contemplated move-away is "necessary," "essential and expedient" and/or "for an imperative reason" are erroneous and have been expressly disapproved by the Cal. Supreme Court. [Marriage of Burgess, supra, 13 Cal.4th at 38, 51 Cal.Rptr.2d at 454, fn. 10; see Ruisi v. Thieriot (1997) 53 Cal.App.4th 1197, 1202, 62 Cal.Rptr.2d 766, 769--remand required because trial court erroneously applied pre-Burgess standard]

    "Permission" to move not in issue:
    In accordance with Ca Fam 7501, the dispositive issue in move-away cases is not whether the custodial parent should be permitted to move but, rather, whether, on account of the relocation a change of custody to the other parent is essential for the child's welfare. [Ruisi v. Thieriot, supra, 53 Cal.App.4th at 1203, 62 Cal.Rptr.2d at 769; see Marriage of Edlund & Hales (1998) 66 Cal.App.4th 1454, 1473, 78 Cal.Rptr.2d 671, 683-684--custody evaluator had mistaken belief it was realistic option to have parents remain in close proximity in move-away case]

    Reasons for move ordinarily not in issue:
    Absent evidence that the relocation is intended simply to frustrate the other parent's contact with the children, the trial court need not "second-guess" the underlying reasons for the move. Courts are "not required to inquire further into the wisdom of [the move-away parent's] inherently subjective decisionmaking." [Marriage of Burgess, supra, 13 Cal.4th at 36, 51 Cal.Rptr.2d at 452 (brackets added); see Marriage of Edlund & Hales, supra, 66 Cal.App.4th at 1470-1471, 78 Cal.Rptr.2d at 682--so long as "sound, good faith reasons" for move exist, trial court may not question custodial parent's judgment in requesting relocation]

    No interrogation re sincerity of parent's move-away plans:
    It has been suggested that most custodial parents seeking to relocate are simply "bluffing" and will not move if it would result in loss of custody. Even assuming this argument is sound, the court cannot probe the custodial parent about the sincerity of his or her avowed move-away plans. "[T]he Family Code provides no ground for permitting the trial court to test parental attachments or to risk detriment to the 'best interest' of the minor children, on that basis . . ." [Marriage of Burgess, supra, 13 Cal.4th at 36, 51 Cal.Rptr.2d at 452, fn. 7]

    Consequently, when faced with a request to modify custody on account of a parent's planned move-away, unless the relocation decision is in bad faith, trial courts "must treat the plan as a serious one and must decide the custody issues based upon that premise." [Ruisi v. Thieriot, supra, 53 Cal.App.4th at 1205-1206, 62 Cal.Rptr.2d at 771 (emphasis added) (interpreting Burgess fn. 7, above); see also Marriage of Edlund & Hales, supra, 66 Cal.App.4th at 1473, 78 Cal.Rptr.2d at 684]

    Concerns about a feigned move-away (on the premise the custodial parent is simply "testing the waters") can properly be addressed by a conditional custody modification--i.e., ordering a change in custody only if the planned relocation occurs. [See Ruisi v. Thieriot, supra, 53 Cal.App.4th at 1206, 62 Cal.Rptr.2d at 771--such conditional modification order "does not render the decision an advisory opinion"]

    The 3024 notice provision is not mandatory (the statute simply clothes the court with discretion to order advance move-away notice); and 3024 neither expressly nor impliedly limits a custodial parent's presumptive right to relocate with the children under Ca Fam 7501. [Marriage of Burgess, supra, 13 Cal.4th at 37, 51 Cal.Rptr.2d at 453, fn. 9 (disapproving Marriage of Carlson, supra, 229 Cal.App.3d at 1336-1337, 280 Cal.Rptr. at 844-845, to extent it concludes otherwise)]

    A fortiori, the Burgess interpretation of 3024 seems implicitly to overrule case law construing 3024 as requiring 45 days' advance notice in all move-away cases even if there is no court order so directing (Marriage of McGinnis (1992) 7 Cal.App.4th 473, 478, 9 Cal.Rptr.2d 182, 185-186 (disapproved on other grounds in Marriage of Burgess, supra, 13 Cal.4th at 38, 51 Cal.Rptr.2d at 454, fn. 10)).

    Exception--de novo determination in joint custody move-away cases:
    The changed circumstances rule does not apply when parents share actual physical custody under an existing order and one seeks to relocate with the children. Here, "by definition," the planned move-away will upset the existing custody arrangement. Consequently, if the nonmoving parent contests the move and requests a custody modification, the trial court must determine de novo what primary custody arrangement will be in the children's best interests. [Marriage of Burgess (1996) 13 Cal.4th 25, 40, 51 Cal.Rptr.2d 444, 454, fn. 12; see Brody v. Kroll (1996) 45 Cal.App.4th 1732, 1736-1737, 53 Cal.Rptr.2d 280, 282; compare Marriage of Biallas (1998) 65 Cal.App.4th 755, 760, 76 Cal.Rptr.2d 717, 720--"liberal visitation rights" not enough to displace changed circumstances rule and respective burdens pursuant thereto]

    IAAL
  7. #7
    karma1 is offline Senior Member
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    Have a question, IAAL?

    If I read this info you posted correctly (although I did just scan it), this was changed in 1996?
    So, if a parent moved prior to this year, and lets say, it was a move without courts permission or NCP's being notified, and lets say, hypothetically, the children were hiden all this time (prior to 1996 law change)-would they go by the old law or new one?
    A lot of "what if's" I know, but I'm curious.
    thanks
  8. #8
    Grandma B Guest
    IAAL (whether he or she--sorry, couldn't resist)

    Does your golden state make exceptions to this change re relocations when the move is to another country, as in this case?
  9. #9
    I AM ALWAYS LIABLE is offline Senior Member
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    My response:

    I guess I should have been a bit clearer. A recent 2002 case (can't recall the cite name right now) reinterpreted Ca. Fam. Code 7501 (the "Notice of Move-Away" statute) stating the "Notice" requirement was unconstitutional, and was reinterpreting "Burgess" and the other cases cited - - requiring only that the "move-away" parent only need inform the other parent where their child's new residence would be - - not whether the child could move away at all without first having given the obligatory 45 day "Notice."

    Additionally, and this is directed to GrandmaB, our original writer was talking about the proposed move to another "COUNTY", not "country". Moving to another COUNTRY, albeit, even another State, has it's own set of rules under the UCCJEA - - and I have touched upon that issue, below.

    In considering alternative visitation and other contact orders to fill the gap left by the move-away, courts also properly consider whether the parties have the financial means to accommodate the children's long distance relationship with the nonmoving parent. [See Marriage of Carlson (1991) 229 Cal.App.3d 1330, 1338, 280 Cal.Rptr. 840, 845 (disapproved on other grounds in Marriage of Burgess, supra, 13 Cal.4th at 37, 51 Cal.Rptr.2d at 453, fn. 9)--restraining order against mother's out-of-state move with children properly reflected fact that parties lacked financial wherewithal to sustain long distance relationship between children and father "of the substance they presently enjoyed"]

    This, of course, becomes an increasingly important factor the greater the distance of the proposed move. [See Marriage of Condon (1998) 62 Cal.App.4th 533, 547, 73 Cal.Rptr.2d 33, 43--in international move-aways, courts must consider whether transportation expense will have practical effect of terminating child's relationship with nonmoving parent]

    Conversely, a sister state cannot modify a California child support order unless the individual parties and child move away from California or the individual parties consent to another forum's modification and assumption of continuing exclusive jurisdiction.

    Once a California court having UCCJEA jurisdiction makes a child custody determination (or properly modifies an out-of-state order pursuant to Ca Fam 3423), it has exclusive, continuing jurisdiction to act on the order until either of the following occurs (Ca Fam 3422(a)):

    A California court determines that neither the child, nor the child and a parent, nor the child and a "person acting as a parent" have a "significant connection" with California and that "substantial evidence" is no longer available in California concerning the child's care, protection, training and personal relationships (Ca Fam 3422(a)(1)); or

    A California court or another state court determines that the child, child's parents and any "person acting as a parent" do not presently reside in California (Ca Fam 3422(a)(2)).

    Thus, California's exclusive, continuing jurisdiction terminates when either all concerned parties move away or there is no longer a significant connection and substantial evidence in California. [Ca Fam 3422(a)(1),(2); 28 USCA 1738A(d); see Lough v. Super.Ct. (Lough) (1992) 8 Cal.App.4th 136, 142-143, 10 Cal.Rptr.2d 250, 254--Calif. court's purported retention of custody jurisdiction ineffective to confer UCCJA modification jurisdiction where parents and child had moved out of state and lost all "significant connection" with Calif.]

    "Bad faith" move-away distinguished:
    As stated, the necessity for the custodial parent's planned move-away ordinarily is irrelevant to disposition of the custody modification motion; "the 'necessity' of relocating frequently has little, if any substantive bearing on the suitability of a parent to retain the role of a custodial parent." [Marriage of Burgess, supra, 13 Cal.4th at 36, 51 Cal.Rptr.2d at 452]

    However, an "obvious exception" occurs where there is evidence that the custodial parent has decided to relocate simply to frustrate the noncustodial parent's contact with the children. A custodial parent's conduct designed to frustrate visitation and communication may itself be grounds for changing custody. "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 Burgess, supra, 13 Cal.4th at 36, 51 Cal.Rptr.2d at 452, fn. 6; see Cassady v. Signorelli (1996) 49 Cal.App.4th 55, 57, 56 Cal.Rptr.2d 545, 546--primary caretaker Mother enjoined from moving child out of state where evidence demonstrated relocation was intended to frustrate Father's relationship with child; compare Marriage of Whealon (1997) 53 Cal.App.4th 132, 143, 61 Cal.Rptr.2d 559, 565--evidence did not support noncustodial parent's "bad faith" move-away argument]

    IAAL
  10. #10
    Grandma B Guest
    Originally posted by I AM ALWAYS LIABLE
    Additionally, and this is directed to GrandmaB, our original writer was talking about the proposed move to another "COUNTY", not "country". Moving to another COUNTRY, albeit, even another State, has it's own set of rules under the UCCJEA - - and I have touched upon that issue, below.
    IAAL
    Wow, can't believe I misread "county" and "country"! Guess it had been a long day. I just couldn't imagine any State would take the possibility of moving a child out of "country" so lightly. And, of course, they don't! Thanks for waking me up, big guy.

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