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move away rights

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T

tweetycarrigan

Guest
:confused: i live in california and am trying to move to colorado to be with my boyfriend/fiance. i have two children and my ex is now fighting for cutody of them in order to try and stop me from leaving. don't i have any rights to get on with my life and try to make a good home and life for my children?
 


I AM ALWAYS LIABLE

Senior Member
tweetycarrigan said:
:confused: i live in california and am trying to move to colorado to be with my boyfriend/fiance. i have two children and my ex is now fighting for cutody of them in order to try and stop me from leaving. don't i have any rights to get on with my life and try to make a good home and life for my children?

My response:

A child will not be removed from the prior custody of one parent and given to the other unless the material facts and circumstances occurring subsequently are of a kind to render it essential or expedient for the welfare of the child that there be a change. It follows that, in a "move-away" case, a change of custody is not justified simply because the custodial parent has chosen for a sound, good-faith reason, to reside in a different location. A change of custody should occur in a move-away case only if, as a result of relocation with that parent, the child will suffer detriment rendering it essential or expedient for the welfare of the child that there be a change in custody. [In re Marriage of Carney (1979) 24 Cal.3d 725, 157 Cal.Rptr. 383, 598 P.2d 36, 3 A.L.R.4th 1028; In re Marriage of Burgess (1996) 13 Cal.4th 25, 51 Cal.Rptr.2d 444, 913 P.2d 473]

This construction is consistent with the presumptive right of a parent entitled to custody to change the residence of his or her minor children unless such removal would result in prejudice to their rights or welfare. [See Fam C §7501] Accordingly, the dispositive issue is not whether relocating is itself essential or expedient, either for the welfare of the custodial parent or the child, but whether a change in custody is essential or expedient for the welfare of the child. [In re Marriage of Burgess (1996) 13 Cal.4th 25, 51 Cal.Rptr.2d 444, 913 P.2d 473, disapproving, to extent they place additional burden on relocating custodial parent to prove relocation itself is essential, expedient, imperative, or necessary, In re Marriage of McGinnis (1992, 2d Dist.) 7 Cal.App.4th 473, 9 Cal.Rptr.2d 182; In re Marriage of Selzer (1994, 1st Dist.) 29 Cal.App.4th 637, 34 Cal.Rptr.2d 824; In re Marriage of Roe (1993, 2d Dist.) 18 Cal.App.4th 1483, 23 Cal.Rptr.2d 295; In re Marriage of Rosson (1986) 178 Cal.App.3d 1094, 224 Cal.Rptr. 250] Thus, a custodial parent seeking to relocate, like the noncustodial parent doing the same, does not bear a burden of demonstrating that the move is "necessary." [In re Marriage of Burgess (1996) 13 Cal.4th 25, 51 Cal.Rptr.2d 444, 913 P.2d 473]

However, bright-line rules in this area are inappropriate. Each case must be evaluated on its own unique facts. Though the interests of a minor child in the continuity and permanency of custodial placement with the primary caretaker most often will prevail, in assessing "prejudice" to the child’s welfare as a result of relocating even a distance of 40 or 50 miles, the trial court may take into consideration the following [In re Marriage of Burgess (1996) 13 Cal.4th 25, 51 Cal.Rptr.2d 444, 913 P.2d 473]:

(1). The nature of the child’s existing contact with both parents, including de facto as well as de jure custody arrangements;

(2). The child’s age, community ties, health, and educational needs; and

(3). The child’s preferences as to custody, if the child is of sufficient age and capacity to form an intelligent preference. [See Fam C §3042(a)]

A different analysis may be required when parents share joint physical custody of the minor children under an existing order and in fact, and one parent seeks to relocate with the minor children. In that situation, the custody order may be modified or terminated on the petition of one or both parents or on the court’s own motion if it is shown that the best interest of the child requires modification or termination of the order. [Fam C §3087; Brody v. Kroll (1996, 4th Dist.) 45 Cal.App.4th 1732, 53 Cal.Rptr.2d 280] In that situation, the trial court must determine de novo what arrangement for primary custody is in the best interest of the minor children. [Brody v. Kroll (1996, 4th Dist.) 45 Cal.App.4th 1732, 53 Cal.Rptr.2d 280, citing In re Marriage of Burgess (1996) 13 Cal.4th 25, fn 12, 51 Cal.Rptr.2d 444, 913 P.2d 473]

When first decided, attorneys were concerned that In re Marriage of Burgess (1996) 13 Cal.4th 25, 51 Cal.Rptr.2d 444, 913 P.2d 473 would lead to anomalous results in cases where the actual custodial arrangement bears no relation to the wording of the custody order. For example, in a "move-away" case in which the parents are awarded joint physical custody, but one parent, in fact, has the child 80% of the time and assumes responsibility for school meetings, medical appointments and similar obligations, the form of the custody order may or may not dictate the form of hearing. The court will look beyond the words of the order to the reality of the custody arrangement. [See In re Marriage of Biallas (1998) 65 Cal.App.4th 755, 76 Cal.Rptr.2d 717 (de novo review is compelled only if parents in fact share joint physical custody and in determining whether physical custody is, in fact, joint, trial court looks at existing de facto arrangements between parties not form of order)] Whether the custody order was entered per stipulation or by order of the court, the same rules apply.

There must be a meaningful hearing before the custodial parent is permitted to move the child. What constitutes a "meaningful" hearing, like the determination of "best interests," will vary with the circumstances of the case. [In re Marriage of McGinnis (1992, 2nd Dist.) 7 Cal.App.4th 473, 9 Cal.Rptr.2d 182, disapproved on other grounds in In re Marriage of Burgess (1996) 13 Cal.4th 25, fn 10, 51 Cal.Rptr.2d 444, 913 P.2d 473; In re Marriage of Roe (1993, 2nd Dist.) 18 Cal.App.4th 1483, 23 Cal.Rptr.2d 295, disapproved on other grounds in In re Marriage of Burgess (1996) 13 Cal.4th 25, fn 10, 51 Cal.Rptr.2d 444, 913 P.2d 473]

Even if prejudice is not established, and a change in custody is not essential or expedient for the welfare of the child, the trial court has broad discretion to modify orders concerning contact and visitation to minimize the minor children’s loss of contact and visitation with the noncustodial parent in the event of a move, thus obviating the need for costly, time-consuming litigation to change custody, which itself may be detrimental to the welfare of minor children because of the uncertainty, stress, and ill will that such litigation tends to generate. Such modifications may involve increasing the amount of visitation with the noncustodial parent during vacations from school, allocating transportation expenses to the custodial parent, or requiring the custodial parent to provide transportation of the children to the noncustodial parent’s home. [In re Marriage of Burgess (1996) 13 Cal.4th 25, 51 Cal.Rptr.2d 444, 913 P.2d 473]

In addition, a noncustodial parent’s relocation far enough away to preclude the exercise of existing visitation rights can be ground for modifying a visitation order to allow for a different schedule for contact with the minor children. [See In re Marriage of Murga (1980, 4th Dist.) 103 Cal.App.3d 498, 163 Cal.Rptr. 79] A less demanding evidentiary showing may suffice where visitation rather than joint custody is at stake. Visitation schedules are more easily modified and accommodated than changes of custody. [See, for example, In re Marriage of Murga (1980, 4th Dist.) 103 Cal.App.3d 498, 163 Cal.Rptr. 79]

IAAL
 

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