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I’m moving and I’m taking little Johnny with me!

Oh, really? Maybe the other parent will have something to say about that.

What happens when one parent wishes to relocate with the minor child/children over the objection of the other parent? How does the court look at this issue?

It depends. The first analysis would be: is there a true “custodial parent”? In other words, does not parent have the child roughly 60% of the time or more (this percentage is not carved in stone but 60% plus is a good working point)?

If so, the moving parent has a very strong position and will likely be allowed to move with the child. This issue has a long history in our case law where different appellate jurisdictions were taking different approaches, such as looking as to whether or not the move was “necessary and imperative” and otherwise weighing the mover’s motivation and subjectively determining the wisdom of the move. Then, in 1996, the California Supreme Court took one of the cases and decided that the lower court decisions overworked the issue, holding that a custodial parent should not be “confronted with Solomonic choices over custody of minor children” In re Marriage of Burgess (1996) 13 Cal.4th 25, 36. The Court found that Family Code section 7501(a) was dispositive. That section states that “A parent entitled to the 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.” This would normally be applied, but not necessarily when the custodial arrangement was new or where it could be shown that the move, itself, was either in bad faith (moving just to prevent the other parent from seeing the child) or if the move was clearly against the best interests of the child. The Supreme Court later made its decision in In re Marriage of LaMusga (2004) 32 Cal.4th 1072 which clarified Burgess to a certain extent, allowing for the non-mover to have a full hearing on all aspects of the child’s best interests.

If there is no obvious “custodial parent”, such as where the parents have equal time with the child, the matter will turn on “good faith move” and the “best interests” of the child test, including reason for moving, distance, past cooperation or interference with the parent’s custodial time and other elements. It is, essentially, a brand new case for the court.

If you, or the other parent, is contemplating a relocation it is important to know what elements matter and which do not and plan accordingly.

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