Moving to Las Vegas

I currently live in San Diego, California, and at the end of this month I am moving Las Vegas , Nevada. I want to transfer my custody file/case to the state of Nevada. What are the procedures? What do I need to do? What is the involved cost, and how long does the transfer take? Thanks, J2.

[I AM ALWAYS LIABLE]

Originally posted by Jamj2
I currently live in San Diego, California, and at the end of this month I am moving Las Vegas , Nevada. I want to transfer my custody file/case to the state of Nevada. What are the procedures? What do I need to do? What is the involved cost, and how long does the transfer take? Thanks, J2.

My response:

You're not going anywhere until you get permission from the California court. You need to file your Motion for permission for a "move-away" order WITH your child.

If you take your child out of the jurisdiction of the California court, without permission, and an order to do so, you'll be in more trouble than you can shake a stick at.

I'm telling you, young lady, don't screw with the court.

IAAL

[stealth2]

Sorry IAAL - it would have helped if jamj had mentioned that his daughter already lives in Las Vegas with her mom. So he's moving to be closer to the child - something I think we'd all applaud

jamj - I believe you would have to establish residency in NV before you can file to transfer your orders - although your ex should be able to do so already.

Also - if you're remarried and she has a kid - make sure *she* gets permission to move her child.

Thank for the responses people. Sorry I left some important information out. Thanks for the "digging" Momma. Thanks for the words of caution Liable. My duaghter does currently reside in Las Vegas. How long do I need to reside in Vegas before I can claim residency? Would the California orders still stay in place until that time? I'm not sure, but her mother has not been too cooperative in these matters and may not want to assist me in transfering the orders.

[stealth2]

To file for a divorce, residence is established after 6 weeks - but I don't know if that's the same for everything. Your best bet would be to search around on the 'Net. Until NV accepts jurisdiction, your CA order should stay in effect.

[karma1]

confusion here-
didnt I read one of your posts stating that a CP no longer had to ask the courts permission to move with children to another state in CA? so sorry if I misread that but it was a major contention on another thread awhile back and I thought that is what I understood you to say?
OR am I understanding that the CP no longer has to ask permission but still has to ask CA to relinquish jurisdiction to new state?
side note-while listening to one case in court recently-in CA-a lawyer from CO asked the judge to change VENUE from CA to CO-this just happened to be the same judge my hubby went before last summer when the ex asked for change of VENUE from CA to OR-so, I already knew the answer to that-denied!
that much I understand-venue and jurisdiction-lol
thanks

[I AM ALWAYS LIABLE]

Originally posted by lovingwife
confusion here-
didnt I read one of your posts stating that a CP no longer had to ask the courts permission to move with children to another state in CA? so sorry if I misread that but it was a major contention on another thread awhile back and I thought that is what I understood you to say?
OR am I understanding that the CP no longer has to ask permission but still has to ask CA to relinquish jurisdiction to new state?
side note-while listening to one case in court recently-in CA-a lawyer from CO asked the judge to change VENUE from CA to CO-this just happened to be the same judge my hubby went before last summer when the ex asked for change of VENUE from CA to OR-so, I already knew the answer to that-denied!
that much I understand-venue and jurisdiction-lol
thanks

My response:

I can't even imagine me painting with such a broad brush by saying something like that! Of course a CP needs "permission" from the court to take a child out of it's jurisdiction if there is joint custody. I can only imagine that the "other post" concerned a "sole custody" issue.

Remember, there are two parents to consider, with custody and visitation issues, depending on the "type" of custody, "and the court's concerns" regarding the "best interests" of the child in such a move-away, and other issues, like transportation issues, and a reconfiguration of the visitation schedule, or even a change in custody altogether.

After an OSC (used only if there are additional problems) or "Motion and Declaration" for a move-away (used if the only issue is the move-away) is filed, and in the absence of a prior written agreement to allow a move-away, the move-away custodial parent must comply with Family code section 3024, which 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."

"As a practical matter, a hearing on a request for a so-called move-away order necessarily involves issues of custody and visitation." [Brody v. Kroll (1996) 45 Cal.App.4th 1732, 1736, 53 Cal.Rptr.2d 280, 281-282 (mother filed OSC under Ca Fam § 3024 proposing to move child to Connecticut and father opposed by marking box in responsive declaration indicating custody was in issue)--trial court erred in refusing to consider father's custody request on ground he had not filed own OSC]

"Here, the responsive declaration showed that father opposed the move and requested custody of the minor. The pending move clearly constituted a change of circumstances sufficient to allow the court to consider a change in custody. Father's responsive petition demonstrated he desired to take primary physical custody of [child]. We therefore hold that the change in circumstances, together with father's response placed the issue of custody before the court." [Brody v. Kroll, supra, 45 Cal.App.4th at 1736, 53 Cal.Rptr.2d at 281 (brackets added)]


Clarification of the law regarding a custodial parent's right to relocate with the children should give parents who might otherwise be content with regular visitation rights added impetus to reach an agreement for joint physical custody:

• When a sole custody arrangement is in place, the noncustodial parent seeking a change in custody based on the custodial parent's planned relocation with the children bears the "substantial" burden of proving that, because of the relocation, the children will suffer "detriment" rendering it "essential or expedient for the welfare of the children" that there be a custody change. [Marriage of Burgess (1996) 13 Cal.4th 25, 38, 51 Cal.Rptr.2d 444, 453;

• On the other hand, a different standard applies when parents share physical custody and one seeks to relocate with the children: Here, no presumption favors the move-away parent. Rather, the trial court must determine de novo what arrangement for primary custody is in the children's best interest. [See Ca Fam § 3087; Marriage of Burgess, supra, 13 Cal.4th at 40, 51 Cal.Rptr.2d at 454, fn. 12]

I would STRONGLY recommend every California custodial parent who contemplates a move-away to read the case of Marriage of Burgess (1996) 13 Cal.4th 25, 51 Cal.Rptr.2d 444. Not only does this case decide how, and in what manner the court will release a child from it's immediate jurisdiction, but also discusses other obligations - - from costs of transportation and the responsibility for those costs, and the many other associated considerations regarding a custodial move-away.

IAAL

[karma1]

and I think that is where the confusion was on my part-it was probably a case of one parent having sole everything.....
boy, I sure wish my husband would have fought his kids being moved so many years ago....hindsight...yadda yadda yadda...
thanks.....

[I AM ALWAYS LIABLE]

My further response:

Move-aways can be quite convoluted and problematic to decide, and each must be decided on a case-by-case basis; i.e., there is no, one, particular answer or solution depending upon the actual situation of both parents, as well as the involved child (including the child's or infant's age and/or psychological impact).

For example, where both parents, who lived in Napa Valley, California, had de facto physical custody, Mother's decision to move to San Francisco (a two-hour commute) was found to warrant an order giving Father primary physical custody (notwithstanding Mother's excellent caregiving). The children, ages 10 and 13, had been raised in Napa and their need for stability re schooling and friendships weighed heavily in the court's decision; moreover, it was their preference to remain in Napa. [Marriage of Rosson (1986) 178 Cal.App.3d 1094, 1107, 224 Cal.Rptr. 250, 259 (cited with approval as to result, but disapproved on burden of proof issue, in Marriage of Burgess, supra, 13 Cal.4th at 39, 51 Cal.Rptr.2d at 454)]

"[T]he judge must consider . . . the effect of the move upon the children when an equally capable and involved parent remains in the community and offers the children the opportunity to remain where they have lived almost all of their lives." [Marriage of Rosson, supra, 178 Cal.App.3d at 1107, 224 Cal.Rptr. at 259; see also Marriage of Battenburg (1994) 28 Cal.App.4th 1338, 1344-1345, 33 Cal.Rptr.2d 871, 874-875--joint custody modified to grant move-away mother primary custody of kindergartner child where shared parenting arrangement not working in any event]

By the same token, considering all the relevant circumstances--including the child's existing contact with both parents, age, community ties, health and educational needs and, where appropriate (per Ca Fam § 3042(a)), the child's preferences--the child's best interests as a whole might require a change in the existing custody arrangement. [See Marriage of Burgess, supra, 13 Cal.4th at 39, 51 Cal.Rptr.2d at 454 (move-away contest)--observing that, while child's interest in continuity and permanency of custodial placement with primary caretaker "will most often prevail," each case must be decided "on its own unique facts"; Ruisi v. Thieriot (1997) 53 Cal.App.4th 1197, 1204, 62 Cal.Rptr.2d 766, 770 (move-away contest)--court must consider all relevant circumstances in determining child's best interest where party with joint physical custody seeks to relocate with child]

Likewise, the court properly exercised its discretion to modify a joint custody plan by granting Mother primary custody and permitting her to move with the child out of state where her current husband (after being unemployed in the aerospace industry for nine months) had found employment. Here, both parents lived in different communities.

The evidence showed Mother had been the child's primary caretaker under the prior custody arrangement, and that the child had a "close and bonded" relationship with Mother "such that it would be in his best interest to maintain that relationship and it would be to his detriment not do to so." Further, geographic stability was not a determinative factor in deciding the child's best interest because whatever the court's decision, the child "would have to change residences and schools, he would have to visit the other parent, and would be away from one parent for substantial periods of time." Finally, the court also gave proper weight to the fact Father (unlike Mother) refused to acknowledge the child may have been a victim of molestation, demonstrating "a substantial and pervasive inability to recognize [the child's] emotional and psychological needs"; and that, because of his continuing anger at Mother over the child abuse investigations, "he would be much less likely to support and encourage frequent and continuing contact with [Mother] should he have primary custody, and to support and encourage [the child's] relationship with [Mother]." [Marriage of Roe (1993) 18 Cal.App.4th 1483, 1486-1487, 23 Cal.Rptr.2d 295, 297 (brackets added) (disapproved on other grounds in Marriage of Burgess (1996) 13 Cal.4th 25, 38, 51 Cal.Rptr.2d 444, 454, fn. 10)]

Nothing in the Code requires a parent to remain in the same locality or establish the "necessity" for a relocation as a prerequisite to an award of sole physical custody. Where a move-away is contemplated, the trial court must consider (among other relevant factors) the effects of relocation on the children's best interests--including their health, safety and welfare, and the nature and amount of contact with both parents (Ca Fam § 3011). But there is no statutory basis for imposing an additional burden on either parent to justify a choice of residence as a condition of custody. [Marriage of Burgess (1996) 13 Cal.4th 25, 34, 51 Cal.Rptr.2d 444, 450]

Extended visitation at infrequent intervals may not be "reasonable" with regard to infants or toddlers. Child psychologists and other experts in this area suggest that, from a developmental perspective, very young children should not be separated from their primary caretakers for long blocks of time. [See Marriage of Condon (1998) 62 Cal.App.4th 533, 552, 73 Cal.Rptr.2d 33, 46, fn. 13 (dictum) (citing text); see also Marriage of Edlund & Hales, supra, 66 Cal.App.4th at 1474, 78 Cal.Rptr.2d at 685--given child's "tender age" (3), longer visitation at less frequent intervals was appropriate in move-away case, but appellate court noted "(t)his new schedule is subject to review and modification as (child) grows older and can more easily spend time away from her primary caretaker" (parentheses added)]

Nonetheless, all of the relevant factors must be considered. Significantly, in parent move-away cases, balancing visitation with the child's "developmental" needs can be problematic where the parties' economic resources will not allow for frequent, short visits. This scenario may put courts in a "Catch 22" situation: Leaving custody with the primary caretaker/move-away parent may be best from a developmental perspective, but can further estrange the children from the noncustodial parent, frustrating the policy of frequent and continuing contact with both parents.

The statutory policy encouraging "frequent and continuing contact" with both parents (Ca Fam § 3020(b) does not preclude an award of sole physical custody to a parent who is planning to relocate; nor does it impose any burden on the move-away parent to demonstrate the relocation is "necessary". Holding otherwise would abrogate the custodial parent's presumptive right to change the children's residence. [Marriage of Burgess, supra, 13 Cal.4th at 34-35, 51 Cal.Rptr.2d at 451; see also Ruisi v. Thieriot (1997) 53 Cal.App.4th 1197, 1204, 62 Cal.Rptr.2d 766, 770--although court may consider effect of move on child's relationship with nonmoving parent, that cannot be only factor considered; and Marriage of Edlund & Hales (1998) 66 Cal.App.4th 1454, 1472, 78 Cal.Rptr.2d 671, 683--significant negative impact of proposed move on child's relationship with other parent not sufficient to warrant custody change]

"More fundamentally, 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. A parent who has been the primary caretaker for minor children is ordinarily no less capable of maintaining the responsibilities and obligations of parenting simply by virtue of a reasonable decision to change his or her geographical location." [Marriage of Burgess, supra, 13 Cal.4th at 36, 51 Cal.Rptr.2d at 452]

A different analysis is triggered when parents share joint physical custody under an existing order and one parent seeks to relocate with the children. Here, the joint custody order may be modified or terminated upon petition of either or both parents or on the court's own motion if modification or termination is shown to be in the children's best interest. [Ca Fam § 3087; Marriage of Burgess (1996) 13 Cal.4th 25, 40, 51 Cal.Rptr.2d 444, 454, fn. 12]

In these circumstances, trial courts must determine de novo what primary custody arrangement is in the children's best interest. [Marriage of Burgess, supra]

This different analysis "arises out of the disruption of the status quo which necessarily inheres in a move away case where there is genuine joint physi-cal custody since, in such an instance, it is unavoidable that the existing custody arrangement will be disrupted. One parent or the other must be given primary physical custody . . ." [Marriage of Whealon (1997) 53 Cal.App.4th 132, 142, 61 Cal.Rptr.2d 559, 565 (emphasis added)]

All relevant circumstances are considered anew:
In effect, in this situation, the court is looking at a "level playing field"--i.e., because both parents have been the child's physical caretaker, neither has an advantage in the move-away contest. In determining custody de novo, the trial court must look to all the relevant circumstances bearing upon the child's best interest; and, in so doing, must take into account a custodial parent's presumptive right to change the child's residence. [Ruisi v. Thieriot (1997) 53 Cal.App.4th 1197, 1204, 62 Cal.Rptr.2d 766, 770 (reversing order that was limited to examining effect of proposed move on relationship with nonmoving parent)]

The continued viability of the McGinnis procedural requirements is unclear. Burgess disapproved McGinnis on the burden of proof issue but nowhere addressed the subject of interim stay orders and other procedural prerequisites to adjudication of move-away contests. (Even so, given the strong public policy favoring stability in custody and bonding with both parents, courts probably will continue to adhere to the McGinnis procedures.)

IAAL

[I AM ALWAYS LIABLE]

My response:

You said - -

"so cool you have these things at hand..."

Well, you're not just whistling Dixie on that one!

While I know all of these issues and laws like the back of my hand, can you just imagine how raw my fingers would be if, on everyone's threads, I had to keep "reinventing the wheel" by writing all of this stuff out, each and every time?

There's nothing like having "ready references" on one's computer to save fingers, tissue and bones.

And, why not? What if I forget an important word or phrase? It's far better, as any attorney will tell you, to copy and paste from a respected, and extremely expensive, reference source - - especially one that is written by many, many experienced judges - - some of the same judges that I see on a frequent basis too!

Sometimes, I've been known to throw their own words back at them!

IAAL