When parents separate or divorce, the court’s primary concern is always the best interest of the child. While this principle guides all custody decisions, it becomes particularly complex when one parent wants to relocate a significant distance, an action known in California as a “move-away” request. These cases are among the most emotionally charged and challenging in family law, as they force a court to balance a parent’s right to move with a child’s right to frequent and continuing contact with both parents.
The Legal Framework: From Burgess to LaMusga
The legal landscape of move-away cases in California has evolved significantly, but it is now guided by a single, landmark decision: In re Marriage of LaMusga. To understand the current law, you must first know its predecessor, In re Marriage of Burgess (1996).
In the Burgess case, the court held that a custodial parent had a presumptive right to move with the child. This meant the parent who wished to relocate did not have to prove that the move was “necessary.” The burden was on the non-moving parent to show that the move would cause detriment to the child and that a change in custody was essential to prevent that detriment. This standard was criticized for being too difficult to meet and for not adequately protecting the child’s relationship with the non-moving parent.
Recognizing these issues, the California Supreme Court revisited the issue in 2004 with the landmark In re Marriage of LaMusga case. The court rejected the “essential” standard and replaced it with a new, more balanced approach. Under the LaMusga standard, if the non-moving parent can show that the relocation would be a “significant detriment” to the child, the court must conduct a full “best interest” analysis and re-evaluate the entire custody arrangement. The court’s primary concern is to protect the child’s right to maintain a relationship with both parents.
Key Factors in a Move-Away Hearing
When a court performs its “best interest” analysis, it considers a wide range of factors, as outlined in the LaMusga decision. No single factor is more important than the others; rather, the court weighs the totality of the circumstances. These factors include:
- The Child’s Interest in Stability: The court will consider the child’s need for a stable and continuous environment. A move that uproots a child from a stable school, friends, and community will be scrutinized more closely than a move that maintains some continuity.
- The Distance of the Move: A move from Los Angeles to San Diego is very different from a move from California to New York. The greater the distance, the more it will disrupt the child’s relationship with the non-moving parent and the existing visitation schedule.
- The Child’s Age and Needs: The court will consider the child’s age and developmental stage. A very young child may adapt more easily to a move, while a teenager may have strong ties to their school, friends, and community that would make a move more difficult.
- The Child’s Relationship with Each Parent: The strength of the child’s bond with both parents is a crucial factor. If the child has a very strong relationship with the non-moving parent, the court may be hesitant to approve a move that would significantly diminish that relationship.
- The Reasons for the Move: The court will assess whether the move is being made in good faith or with a malicious intent to frustrate the other parent’s relationship with the child. A move for a better job, to be closer to family, or for a new relationship is generally considered a good faith reason. A move to intentionally cut off the other parent’s relationship is considered bad faith and will likely be denied.
- The Willingness of Each Parent to Foster a Relationship: The court looks favorably upon a parent who is willing to promote a continuing and meaningful relationship between the child and the other parent. A parent who proposes a detailed long-distance visitation schedule, for example, demonstrates a commitment to that relationship.
Practical Considerations and The “Friendly Parent” Rule
A parent with a custody order must provide the other parent with a minimum of 45 days written notice of a move. This is a critical step that allows the non-moving parent time to file an opposition and seek a court hearing.
It is a common misconception that a move-away request is an all-or-nothing proposition. In reality, the court has wide discretion to create a new custody and visitation order that it believes is in the child’s best interest. This could mean a new, long-distance visitation schedule, a change in which parent has primary physical custody, or a denial of the move altogether.
Ultimately, move-away cases are not about a parent’s right to move; they are about a child’s right to a stable and meaningful relationship with both parents. For any parent involved in a move-away dispute, the best strategy is to approach the issue with a focus on the child’s well-being and to seek legal counsel to navigate this complex area of law.