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  1. #1
    dwashington01 is offline Junior Member
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    Unhappy Sole Legal Sole Physical Custody Move Away

    What is the name of your state (only U.S. law)? The state is California.

    I have sole legal and sole physical custody of my children. I have moved away from California to New JErey where my employment is. My trial date for the move away is 2/22/2010. My question is why do I have to have the courts permission to move my children away when their father has no visitation or nothing with them. I was awarded sole custody because of abuse and neglect on his behalf to the boys. I am so confused.
  2. #2
    LdiJ is online now Senior Member
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    Quote Originally Posted by dwashington01 View Post
    What is the name of your state (only U.S. law)? The state is California.

    I have sole legal and sole physical custody of my children. I have moved away from California to New JErey where my employment is. My trial date for the move away is 2/22/2010. My question is why do I have to have the courts permission to move my children away when their father has no visitation or nothing with them. I was awarded sole custody because of abuse and neglect on his behalf to the boys. I am so confused.
    Because you have sole legal and physical custody you did have the right to relocate with your children...particularly since their father has no visitation due to abuse and neglect.

    However, their father does still have the right to challenge the relocation. That doesn't mean however, that he will win.
  3. #3
    Ohiogal is offline Senior Member
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    Quote Originally Posted by LdiJ View Post
    Because you have sole legal and physical custody you did have the right to relocate with your children...particularly since their father has no visitation due to abuse and neglect.

    However, their father does still have the right to challenge the relocation. That doesn't mean however, that he will win.
    SOLE LEGAL AND PHYSICAL does NOT always equate with a parent having the right to move. Be careful what you are misleading people to believe.

    Is there a restraining order against dad? Is dad court ordered to have NO visitation or does he just not exercise visitation? What does your court order state regarding relocating the children?
    Parents should remember 3 things: Love your kids more than you hate your ex; when you have children the relationship with the other parent is until death; your children determine what type of nursing home you end up in.
    Nothing stated by me should be taken as giving you legal advice or forming an attorney/client relationship.

    Attorney-GAL in Ohio.

    I've removed the knife from my back, polished it, and will one day return it -- long after you think I have forgotten.
  4. #4
    dwashington01 is offline Junior Member
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    Yes it does say that father has no visitation due to abuse. I am not misleading anyone.
  5. #5
    dwashington01 is offline Junior Member
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    Father has no visitation rights and the court order states that I have been awarded sole legal and sole physical custody of both children and father has to get therapy. The order does not state that I could not relocate there are no stipulations.

    Quote Originally Posted by Ohiogal View Post
    SOLE LEGAL AND PHYSICAL does NOT always equate with a parent having the right to move. Be careful what you are misleading people to believe.

    Is there a restraining order against dad? Is dad court ordered to have NO visitation or does he just not exercise visitation? What does your court order state regarding relocating the children?
  6. #6
    LdiJ is online now Senior Member
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    Quote Originally Posted by Ohiogal View Post
    SOLE LEGAL AND PHYSICAL does NOT always equate with a parent having the right to move. Be careful what you are misleading people to believe.

    Is there a restraining order against dad? Is dad court ordered to have NO visitation or does he just not exercise visitation? What does your court order state regarding relocating the children?
    Unless I am mistaken, in CA a CP can move, but the NCP can challenge. I think that the ncp has to get CP restrained from moving with the child.

    This case isn't entirely "on point" but its almost there:

    [url=http://www.metnews.com/sos.cgi?0206%2FS131030]Metropolitan News-Enterprise Online[/url]

    I took it that he currently had no court ordered visitation rights. That they were taken away from him due to abuse and neglect. However, I might have misunderstood.

    Hopefully the OP will clarify.

    And no...I didn't deliberately go hunt for case law. I was trying to find the relocation statute and happened to stumble across that case first.

    I wouldn't even be doing that, but today happens to be my one day off a week, and I am blowing off housework.
  7. #7
    CJane is offline Senior Member
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    Quote Originally Posted by LdiJ View Post
    I wouldn't even be doing that, but today happens to be my one day off a week, and I am blowing off housework.
    Go do your dusting!

    CA is also VERY move-away friendly... yes, Dad has the right to fight the move, but the only way he's going to be realistically close to winning is if he can show that he's a fit and proper person to have primary custody - and he doesn't even have visitation due to abuse.

    OP - you ARE appearing in court, yes? Do you have an attorney?
  8. #8
    dwashington01 is offline Junior Member
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    Thank you. Yes I have an attorney. Sometimes it is hard to get clarification from him. I just wanted to make sure I guess. Yes I will be attending court for this matter.
  9. #9
    Ohiogal is offline Senior Member
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    Unless I am mistaken, in CA a CP can move, but the NCP can challenge. I think that the ncp has to get CP restrained from moving with the child.
    The way you worded it seemed to imply that because she had sole custody she could move. Sole custody does NOT give that right. California California Family Code Section 3024 states,
    "In making an order for custody, if the court does not consider it inappropriate, the court may specify that a parent shall notify the other parent if the parent plans to change the residence of the child for more than 30 days, unless there is prior written agreement to the removal. The notice shall be given before the contemplated move, by mail, return receipt requested, postage prepaid, to the last known address of the parent to be notified. A copy of the notice shall also be sent to that parent's counsel of record. To the extent feasible, the notice shall be provided within a minimum of 45 days before the proposed change of residence so as to allow time for mediation of a new agreement concerning custody. This section does not affect orders made before January 1, 1989."
    It depends on what the order states. The court can require a CP with sole custody to notify the other parent.

    This case isn't entirely "on point" but its almost there:

    [url=http://www.metnews.com/sos.cgi?0206%2FS131030]Metropolitan News-Enterprise Online[/url]
    This site has a nice listing of case law:
    [url=http://www.childcustodycoach.com/moveaway.html]Child Custody Coach: Move-Away Case - Move Aways, Move Away, Relocation Case[/url]



    I took it that he currently had no court ordered visitation rights. That they were taken away from him due to abuse and neglect. However, I might have misunderstood.
    It didn't state that clearly.
    Hopefully the OP will clarify.
    She did.

    And no...I didn't deliberately go hunt for case law. I was trying to find the relocation statute and happened to stumble across that case first.
    Maybe you should look for caselaw. It would make your arguments stronger and give you a better foundation.

    I wouldn't even be doing that, but today happens to be my one day off a week, and I am blowing off housework.
    Oh okay -- and maybe you can explain why you dont' believe you should have to find case law or anything to back you up? Honest question -- what makes you so special that caselaw or researching statutes is not something you need to do and that your word alone should be enough?

    But per the California Court of Appeals in In re Marriage of Seagondollar (2006) (No. G035270; Court of Appeal of the State of California, May 25, 2006):
    A custody decision allowing one parent to move the children out of the
    state necessarily interferes with the other parent’s ability to have frequent and continuing
    contact with them. Such a decision “is one of the most serious decisions a family law
    court is required to make,” and should not be made “in haste.” (In re Marriage of
    McGinnis (1992) 7 Cal.App.4th 473, 477, disapproved on other grounds in In re
    Marriage of Burgess (1996) 13 Cal.4th 25.) “The best interests of the children require
    that competing claims be considered in a calm, dispassionate manner and only after the
    parties have had an opportunity to be meaningfully heard.” (In re Marriage of McGinnis,
    supra, 7 Cal.App.4th at p. 477.)
    A hearing gets to be held OP. That does not mean custody will be changed HOWEVER dad is entitled to his day in court.
    Parents should remember 3 things: Love your kids more than you hate your ex; when you have children the relationship with the other parent is until death; your children determine what type of nursing home you end up in.
    Nothing stated by me should be taken as giving you legal advice or forming an attorney/client relationship.

    Attorney-GAL in Ohio.

    I've removed the knife from my back, polished it, and will one day return it -- long after you think I have forgotten.
  10. #10
    Ohiogal is offline Senior Member
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    Oh and one more thing

    From [url]http://www.childcustodycoach.com/moveaway.html[/url]

    2006 In re Marriage of Brown and Yana (2006) (No. S131030; California Supreme Court, February 2, 2006)

    The California Supreme Court holds that a parent who has sole legal and physical custody does not have the absolute right to move away, but the noncustodial parent is entitled to an evidentiary hearing only after unsuccessful mediation and showing of the move's detrimental effect on the child. The Supreme Court also emphasized that the trial court has wide discretion to grant or deny a hearing to the noncustodial parent, even in the face of a sole-custody order, similar to a trial courts broad discretion to come up with a custody plan that reflects the overall best interests of the children. In move-away cases, such as this one, the "sole-custody" label can still be a powerful blockade to the noncustodial parent's efforts to change custody. A noncustodial parent who wishes to modify custody against a sole-custody order must make a showing of specific detriment to the child, as opposed to generalities, making the burden of proof for a noncustodial parent who wants a custody modification against a sole-custody order extremely high. In re Marriage of Brown and Yana (2006), the father, Anthony, failed to present legally sufficient evidence that the move would be detrimental to his son, Cameron. Although Anthony was given every opportunity to provide specific evidence as to why the move would be detrimental to his son, he provided generalities, as opposed to specifics, and the Supremes agreed with the trial court's denial of an evidentiary hearing and held that the Second District erred by concluding that the lower court should have granted Anthony an evidentiary hearing.
    Sole custody does NOT give a CP in California the right to move. Stating what you did Ldij IS MISLEADING. At least the California SUpreme Court disagrees wholeheartedly with you. I will believe them.
    Last edited by Ohiogal; 01-11-2010 at 11:44 AM.
    Parents should remember 3 things: Love your kids more than you hate your ex; when you have children the relationship with the other parent is until death; your children determine what type of nursing home you end up in.
    Nothing stated by me should be taken as giving you legal advice or forming an attorney/client relationship.

    Attorney-GAL in Ohio.

    I've removed the knife from my back, polished it, and will one day return it -- long after you think I have forgotten.
  11. #11
    Ohiogal is offline Senior Member
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    Quote Originally Posted by dwashington01 View Post
    Yes it does say that father has no visitation due to abuse. I am not misleading anyone.
    You were not misleading anyone -- LD was by declaring that because you had SOLE physical and legal you have a right to relocate. The California Supreme Court states otherwise.

    The likelihood is you will be granted permission.
    Parents should remember 3 things: Love your kids more than you hate your ex; when you have children the relationship with the other parent is until death; your children determine what type of nursing home you end up in.
    Nothing stated by me should be taken as giving you legal advice or forming an attorney/client relationship.

    Attorney-GAL in Ohio.

    I've removed the knife from my back, polished it, and will one day return it -- long after you think I have forgotten.
  12. #12
    CJane is offline Senior Member
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    Quote Originally Posted by Ohiogal View Post
    The way you worded it seemed to imply that because she had sole custody she could move. Sole custody does NOT give that right. California California Family Code Section 3024 states,
    It depends on what the order states. The court can require a CP with sole custody to notify the other parent.
    Didn't she already say that her order does not specify anything relating to relocation?

    And I don't think anyone was disputing that Dad will be allowed his day in court. But according to the American Bar Association, CA has a presumption in favor of relocation. It's unlikely that this father will prevail.
  13. #13
    LdiJ is online now Senior Member
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    Quote Originally Posted by Ohiogal View Post
    From [url=http://www.childcustodycoach.com/moveaway.html]Child Custody Coach: Move-Away Case - Move Aways, Move Away, Relocation Case[/url]

    2006 In re Marriage of Brown and Yana (2006) (No. S131030; California Supreme Court, February 2, 2006)



    Sole custody does NOT give a CP in California the right to move. Stating what you did Ldij IS MISLEADING. At least the California SUpreme Court disagrees wholeheartedly with you. I will believe them.
    How does that disagree wholeheartedly?

    I don't post case law unless I accidentally stumble across it because I do not have good access to case law and will NEVER post case law unless its either a very famous case, such as Troxel, or unless I can provide a link to it so that the posters can read it for themselves.

    If case law cannot be read in its entirety, then it can be completely "off point".
    Last edited by LdiJ; 01-11-2010 at 11:55 AM.
  14. #14
    dwashington01 is offline Junior Member
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    Thank you so much. You guys have been a great help.

    Quote Originally Posted by CJane View Post
    Didn't she already say that her order does not specify anything relating to relocation?

    And I don't think anyone was disputing that Dad will be allowed his day in court. But according to the American Bar Association, CA has a presumption in favor of relocation. It's unlikely that this father will prevail.
  15. #15
    Ohiogal is offline Senior Member
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    Quote Originally Posted by CJane View Post
    Didn't she already say that her order does not specify anything relating to relocation?

    And I don't think anyone was disputing that Dad will be allowed his day in court. But according to the American Bar Association, CA has a presumption in favor of relocation. It's unlikely that this father will prevail.
    She answered it AFTER I asked the question. After she had already been told by LD that with sole custody she could move.

    I do not believe it is like that this father will prevail either based on what she has stated. However I wanted to correct the idea that

    Because you have sole legal and physical custody you did have the right to relocate with your children...
    Because per the California Supreme Court that is NOT true.
    Parents should remember 3 things: Love your kids more than you hate your ex; when you have children the relationship with the other parent is until death; your children determine what type of nursing home you end up in.
    Nothing stated by me should be taken as giving you legal advice or forming an attorney/client relationship.

    Attorney-GAL in Ohio.

    I've removed the knife from my back, polished it, and will one day return it -- long after you think I have forgotten.

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