When one parent wants to move out of the area with the minor child in a custody case, they will usually need either the consent of the other parent, or they will need a court order granting the move away request. This issue comes up often when one parent wants to move out-of-state for a new job or because they are getting remarried.
Issues that come up in a move away request are how the move would affect the minor child or children involved, how visitation and/or custody would be affected by the move, the reason for the move, and like all child custody matters, whether it is in the best interest of the child to make the move.
If a parent wants to move, it is not impossible to simply get the other parent to consent to the move. The law usually requires notification to the other parent of the proposed move before a court action is filed, and it is important to offer a reasonable visitation schedule to the other parent, since a move will usually make it harder for the parent not moving to maintain the current visitation schedule.
If the other parent does not consent to the move away request, then you will usually need to file a request with the court to be able to move with the minor child or children, unless a prior order already gives you the right to change residence without the consent of the other parent. In a court hearing, there are some presumptions that favor the parent with primary custody of a child. However, those presumptions can be overcome, s it is important to make a clear case to the court why the move will benefit the minor child or children.
One of the most important factors is which parent has been providing a stable environment for the child. Other important factors are comparing the schools, for example is the new school better for the child than the old school, and also community statistics. A judge is more likely to grant a move away where the parent is moving somewhere with a lower crime rate and better schools, than the other way around.
An important caveat to remember is that a move away request is not automatic, even if you are the primary custodial parent. A request should be made with plenty of time, this is not something to request at the last minute. A court may not allow you to move with the child, which means you could still move, but custody would switch and the child would stay with the other parent.
Also, a move away court dispute can be very costly, so it makes better financial sense for parents to try to work out an arrangement that allows the move but maintains sufficient contact with the other parent. With modern technology, that is made even easier, with parents able to video chat with their children over the internet from anywhere in the country, or even the world. Also, often the parent who doesn’t have as much visitation time during the school year after the move could have most of the time during summer and holidays.
Last caveat, don’t try to move away just to get an advantage in a custody case. If you aren’t doing something with the child’s best interest in mind, that could really come back to hurt you in a custody case. Remember, it is always best to consult with a move away lawyer before you take action.
Good Information… Thanks for posting…
how far is a move away considered? my x moved 30 miles away but has been willing to drive back to our area for school etc, now he is changing all that and wants my son to go to camp and school there
There is no specific distance on a move away, but any move outside of the area that affects the custody rights and visitation of the other parent is an issue that can be brought to Court if the parents do not agree on it. Something like where a child goes to school needs to be agreed upon by parents who have joint legal custody, and if there is not agreement, one parent can request that the Court prevent the change to a new school, change custody/visitation, and/or make other orders to rectify the situation.
my ex is moving to Maine and we live in California. He works from home so he wants to move to Maine (for 2 years he says) and live with his mom so he doesnt have to pay for rent, utitlities, food, etc. We have share custoday of our 4 children who are under 9 years old. He is moving in a week and does not want to pay additional child support or offer any support for our children. He wanted to take all 4 and i said no. Now he wants to only take 2 and I still said no(splitting the kids up? how can he do that??) so he is moving and leaving me with all 4 kids full time. This puts me in a serious financial hardship – now i have to pay for daycare – can i go to court and request full legal and physical custody???
Thank you for your comment. You are correct that splitting up kids is a bad idea, and Courts will rarely split up siblings. Since his move changes the circumstances under which the previous custody and support orders were made, you can file an Order to Show Cause with the Court and ask for changes to custody and also ask for changes to support. Increased daycare costs would normally be split between the parents, often on top of the base guideline child support. Also, since his expenses are going to drop when he moves in with his mother, this could affect how much support he should be paying for his children’s maintenance.
thank you so much. In my current order, it says for each of us to pay half of daycare. The problem is my ex wont pay half. I have to come up with this money and hope that one day he will pay me back (not likely). I can’t even get him to pay for half of our son’s eyeglasses which I paid for. He says he owes me nothing. He was ordered to take a co-parenting class (the first time it was ordered he never did it) and he was supposed to provide me with proof. He still has not done it (it was to be completed by January 27, 2012). I guess I will have to go to court to hold him in contempt – if they still do that
If a party is not following a Court order, they can still be held in contempt, and there different ways to collect money on your Judgment. Collection can be complicated, so it would be wise to consult an attorney on how to go about collecting.
okay so my ex is leaving in 2 days – he told the kids that he will be back in June to go to court(???)he is going to try and get a move-away – should i go to court immediatetly to request a change in custody?? Thank you!!
You may be able to request a change of custody in response to what he has filed, if he already has a court date. Please contact me directly if you would like to consult on your matter.
I moved to Claremont and want to enroll my 2 boys (9,7) over at that school. I agreed to let the kids finish the year off at that current school with my ex. She now wants the kids to live with her in Yucca Valley where she resides. She has moved 5 times in the last 18 months. The schools in Claremont rank among the best in the state while the schools in Yucca Valley do not. I currently have primary physical custody of my boys and they have stated they want to live with me. What are the chances that the kids will be forced to go live with my ex and her boyfriend?
Thanks for the comment David. Generally speaking, the parent with primary physical custody has a presumption in their favor, but that can be rebutted by the noncustodial parent. Another key factor in any custody case but also move aways is which parent has provided the most stable environment for the children. Quality of schools and the neighborhood where the children will move to is also important, as is how the move will impact visitation with the other parent. If you would like to get into more specifics about your case, I can set up a consultation and review your facts in depth with you.
-The above is intended as informational only and is not legal advice.
My ex has moved 5 times in 18months says alot about her stability. The schools in Claremont rank among the best in the state while the schools in Yucca Valley do not meet the state minimums when in comes to state testing. Does the fact that her boyfriend has 13 other children and have outstanding warrants have any effect?
I had a child at 18, her father and I split up when she was 15 months. We were never married. Ever since she has been living with me and seeing her father 3 weekends a month (or 7 nights a month) from 15 months to now (4 years 2 months of age). I have gotten married and have another child with my husband. My husband is coming to an end of his military contract and we are planning on moving back to our hometown in Missouri for better job oppertunities and to have support of our entire family.(as of now we live in the state of WA where my oldest was born and her father resides) in WA she only has her father and his parents (of which he lives with and does not even have a bed for our daughter at their home). He is trying for full custody due to his bond, her bond with his parents and his dog. What about the bond she has with myself, her stepfather, sibling/ future siblings, and family in MO? Both mine and my husbands parents visit once a year due to the diatance but do speek on the phone weekly as well as video chat. Her father is stating in his purposed parenting plan he wants custody due to ‘past abuse and neglect as well as parental drug abuse in my (the mother) past’ of which none is true. Do we have a chance of being able to move as a family?
Thanks for reading and posting. Since it appears Washington law covers you case, and I practice law in California, I don’t know how similar the law is to my state. However, general principles are followed in most states when it comes to custody and move aways. What is in the child’s best interests is the overriding factor, and usually there is some presumption that favors a parent who has been the primary custodial parent and has provided stability for the minor child. You may likely have to go through a custody evaluation or something similar in your state, where an outside expert will assess the parents and the child and suggest to the Court what is in the child’s best interest. Allegations such as abuse and drug use also can be investigated as part of an evaluation.
Since the father has significant time with the minor child, a Court will likely want to maintain significant visitation, so while you may be able to ultimately move away, the father will likely be able to have extended periods of visitation, such as during the summer and on holidays.
I am trying to move back to my home with my husband we has a legal separation for about a year and I had moved back to my moms after marriage consoling and lots of changes I want to move back (2hrs away) but my daughter dad will not let her. I told him at the begging of May about my plans on moving I filed my court papers but was taken off the calendar and now we have an ex-parte tomorrow 7/13. I am trying to make life better for my daughter as before she was going back and forth way too much 5 with my then 5 days with her father every other week he works nights so she would stay with his girlfriend and his weekends she would always be with her aunt. What do you think my chances are of getting the approval from the judge?
Judges usually don’t grant ex-parte custody orders unless there is some emergency situation or where the safety of welfare of the child is in danger. What may likely happen or happened is that a hearing date will be set to allow notice to both parents and time to respond, but you may be able to get some temporary orders from the Judge until that hearing date. So many factors go into determining whether a Judge approves a custody request, and I can’t tell you in a blog post what your chances are of success, especially without very much information on the case. You can contact my office directly at 818-305-6200 if you would like to discuss your case further.
I currently have a restraining order against my ex-husband… He has been out of the picture for roughly a few years now (no contact). I’d like to move away from the scene of the crime. If I don’t know of his whereabouts how do I serve him, and how long does the move away order (process) take? In addition am I able to get the move away order prior to establishing life in another area? I feel stuck in a catch 22. Thoughts and idea welcome, Trapped!
I am currently in the process of getting divorced, we are using modified mediation in which I am the petitioner and would retain our current counsel if desired. I have 2.5yo and 11mo daughters whom I have been a stay-at-home-mom to since my oldest was born (Dec., 2009). I now have primary physical custody of them (70/30). My husband works a shift schedule of 4days on (2day shifts/2night shifts)/4days off which makes our visitation schedule very unique. It also makes it very complicated for me to attempt finding a part or full time job. Currently he is getting them 9-12 days a month overnight. I have a new boyfriend and we are contemplating moving in together once my divorce is final (est. mid-Feb. 2013) however we will not able to afford nor want to live in the city or area in which I now reside. At this time I have an agreement w/ my ex that I can move 30miles from his current home. This does little to put us in range of affordable & acceptable housing within an acceptable city/neighborhood w/ a good school district. I also have a desire for my children to grow up in a more rural & wholesome atmosphere, away from the overpopulation, crime and congestion of Los Angeles County. Currently I am living with the girls at my parent’s home which will not be acceptable for long term and there is no way I could afford anything even close to comparable to their standard of living based on the support income as it is set up now. My question is whether I have a better chance getting a move away order for 150miles now (before the divorce is final) or waiting until after. And if I wait until after, would it be better for me to be remarried before filing? I have a great desire to settle this all w/out going before a judge but I am not optimistic that my ex will be willing to agree to 150mi so that I can move the kids to the Big Bear/Arrowhead area or the foothills below.
HI My ex wife got a move away order granted by the judge. He is ordering us to go back to mediation to figure out the details and return to court for the recommendations.We filed an exparte first asking that our son not change schools. In the court order on file it says that the move away is granted . And it says that respondent (me ) is responsible for getting the minor to school. In court the judge said that our son could start his new school in January. My question is , is it an order that he change schools or could that change after mediation and we go back to the judge? Thanks Luis
Custody orders can always be changed by the Judge when the proper legal standard is met or the necessary facts are presented to the Court. If something was said in Court put not put down in the written order, it would need to be put into a written order to be truly effective.
hi, im currently in the beginning of a divorce that has not been to court or mediation. in may or march of this year (2013) I plan on moving away to hawaii with my 2 year old daughter and fiance. the father has not been involved since cutting the umbelical cord(2years) and has never once paid any form of support. i have filed for complete full custody with no response from him. i apologize if this has been answered before, but i need a answer for my situation. also, the father has verbally agreed to the move, does it have to be in writing?
Yes, the consent to the move would need to be in writing. Also, if the father has not responded, you should be able to proceed with a default and default judgment in the case and finish the case without his participation.
My brother and his girlfriend had a daughter. Shortly after her birth the mother took her and moved from California to Washington, against my brothers wishes. He pays for her cell phone and sends her money and gifts, none of which are documented through the courts. He recently flew to Washington to see his daughter for her first birthday, he was not allowed to take his daughter out of the house or even visit with her alone at all. I am wondering if that is even legal or if he can file papers in California or does he have to go to a Washington court?
If they have lived in Washington for more than six months, he will have to file his case in Washington. If it has been less than six months, he can file in California under the law that California is still the child’s home state since she was born here and has not lived in Washington long enough to establish Washington as the new home state for custody purposes.
Hello my x and I have to give a 30 day notice if we decide to move. Well I’m planning on moving would I have to file any paperwork through the court like a modification? I’m currently planning on moving closer to him probably the next city or two over. Please help!
Generally speaking, local moves do not require an order, just notice of where you are moving to the other parent. If you are moving out of area, then you usually need to get either the other parent’s consent or get an order from the Court to allow you to move.
I am in the Army my fiance has 2 great kids and lives in California. We will be getting Married next year. I am stationed out of state. Does the fact I am in the Army have any relavence in regard to her getting a Move Away Order.
A new spouse’s job location can be a major factor that is considered with requesting a move away (and often the reason a move away is being requested). Depending on your fiance’s current custody orders and other factors in the case, the fact you are stationed out of state could be either a positive or a negative to getting a move away order.
If there is no court order and no pending case, can’t mom and child just move to new State and notify Dad after? Child is 1. Mom by far primary custodian and can’t survive without moving in with family.
When you file a divorce or paternity case in California, there are automatic restraining orders that prevent the child from being removed from the state without the other parent’s written permission of a Court order. You state that there are no pending cases or orders in effect, so right now it sounds like nothing prohibits the mom from moving. However, California would remain the child’s home state for six months after a move to another state, so without an agreement from Dad to move, if Dad files a California case within six months of the move, Mom may have to come back to California to litigate the custody issue here. California still has jurisdiction to decide custody until a new home state is established, which requires six months.
Hi. I came across your through google… I’m so glad I did! I’d like to know, if the other parent is okay with my move (I have full custody, he has visitation every other weekend) how can I get that on writing? And do I need to submit that to court to have on file?
There is no required form for the consent in writing, so it can be as simple as a handwritten note signed by Dad. However, to be sure that Dad doesn’t deny giving permission later, you can have the written permission notarized. The most sure way would be to prepare or have an attorney prepare a formal stipulation that both parents sign agreeing to move, and have the filed with the Court.
My boyfriend and I are going to be getting married. He lives in Arizona and my sons father lives in CA. Its about a 7 hour drive but clearly out of state. I have my son 85% of the time. How difficult is it to make this move. Sons father is really stubborn and not reliable no chance he will be willing to let me leave.
Also father hasn’t been able to hold a job for more than 2 years and lives with his parents.
If you are the custodial parent with 85% of the time, there is a presumption in the law that would allow you to make the move with your child. The father would have to show that your request to move is in bad faith or that there is a detriment to the child if the move is allowed. Since it sounds like Dad isn’t very stable, he may have a hard time arguing that custody should be switched to him if you were to move to Arizona. Remember, you have the constitutional right to move where you would like, the question is who would maintain custody of the child if the move happens.
My daughter has lived with me the last six years. Her father moves around a lot, and sees her three or four times a year. Over Christmas break the two of them decided she would go live with him in Kansas- she said she doesn’t want to live with me. Court orders have her residing with me for school purposes with visitation for him when he is in the state. Do I have to do anything if I decide to let her go and live with him to try it out. It is not in her best interests, but she is constantly fighting me on it, insisting she wants to go and try it as she really misses him. I don’t want to change my court order, because I have a strong feeling she will want to come home shortly. Can you help? This is a California order. Thank you.
I always suggest to people to put things in writing. Your agreement to have her go be with her father to try it out doesn’t have to be filed with the Court, but so everyone is on the same page, it is always wise to have a written understanding of the arrangement.
My wife and I live apart because of my job. I live in LA and she is up in Fresno.
My wife and her Ex has a little boy 4 in April.
In my line of work, I can’t get a job in Fresno and I don’t want to stay living apart from my wife and step son anymore.
We are going to sit down with the Ex and his wife in a weeks time, but I already know that he will not let her and child move to LA to be with me.
I not to sure if we would win a court case? But we have been apart now for over 3 years, but that was more to do with my Visa then my Job. But 3 years is a long time. I have been in the US since September 2012, but still living apart because he wouldn’t let her move.
The other problem is that he got married and his wife has 3 kids from her Ex and they just had another one together. So would it look bad for us to take my Step son away from them too?
They did live in LA, but her Ex moved them to Fresno and doing so went to court to move the 3 kids away from there dad.
Anyway, So info on some cases like this or anything you can give me would be great.
Thanks for the questions. Your situation does not sound like an easy one. While I sympathize with your situation of being separated from your spouse, the Court is not going to grant the move-away on the basis that you and your wife have to live apart right now, but rather look at what is best for the child. If your spouse is working in Fresno or has a place to live in Fresno, and there is no financial reason to move to Los Angeles, that would make the request much harder to win in Court. Not that a move-away is impossible, especially without knowing all the facts. Since you mentioned sitting down with the other parent, I would encourage you both to see what sort of compromises you can make to maximize your time with your wife, while minimizing any loss of time between the child and father.
I have a 17 year old and a 12 year old. I am getting married in April 2013 and want to move with my husband, that is in the Army, to Washington State. I know my ex-husband will not agree at all. However my ex is also unemployed and living with his mother. I am willing to pay for all travel expenses within reason for the kids to see him. The community we will be moving to is better then where I live now it also has better schools. The move will also benefit our stressed financial situation. I don’t want to pay for expenses with court and lawyers if It dose not look like we will win the case. My 17 year old wants to move but my 12 year old wants to stay with her dad. Her father cant afford to keep her plus the school district he is in is worse then where I am in now. I am the parent that is stable financially and trustworthy for the kids. Do we have a good chance on getting courts to say yes to the move? I also want to know how long does the process take?
To know how well your case would go in Court would require looking at what current custody orders are in place, and getting more detailed factual information. Without filing a request for move-away or fully retaining an attorney, most family law attorneys will agree to a consultation with you to review your case and give you clear advice, which again I stress on this blog is much better to rely on then what I can offer you in a blog posting. It does sound like you have a solid basis for requesting a move-away. Move away requests in custody cases often arise when there is a remarriage or a change in employment, and are valid reasons for seeking a move-away with the children. You have several points that would favor you in making a move-away request, such as stability of the parents, and the desires of your 17-year old are likely to prevail. Courts are also hesitant to separate siblings, so if the oldest child wants to move, most judges would be hesitant to switch custody of a younger child to the other parent. If you can propose a visitation plan that will minimize the effects of the move on the current visitation plan, that will also make it more likely to have you request granted. Be prepared that dad may get most of the summer and vacation times with the children, depending of course on the current visitation schedule.
As far as how long the process may take, it could be anywhere from a couple months to a year if it is very contested, which may involve going through a lengthy custody evaluation process. A move away request is definitely something you want to allow time for, especially if the other spouse is going to contest the request. You may want to consider mediating the issue with Dad prior to filing a court request, because if you have a strong case a mediator can point that out to Dad, who is more likely to listen to a third party than to what you have to say.
Hi, I’ve been residing in San Diego county, and recently got married and had my second child just 3 months ago. My husband found out in November he got a job offer to work for Bakersfield police department and they are currently paying him to go through the academy training. He got out of the military in December and started the training in January for the PD. My Ex is fighting for primary custody if I move, however, currently I have 66% he has 34%. We share both joint legal & physical custody. But I am and have always been my sons primary parent. Will it be a factor that my husband is going through training instead of actual work? They have hired him contingent upon him passing the academy. We went to mediation already but my Ex is using the fact that he has a house he owns and has family in San Diego and I rent and my family is here in San Diego and am trying to move 4 hours away to Bakersfield where the closest family to us will be an hour in a half. I have court in march and I understand its a huge risk but if I don’t get granted the move with my son I don’t know what I’ll do. How do my chances look on getting granted to move my son? I’ve researched schools, better areas in Bakersfield, I’ve done my research and am as prepared as I can be but not sure of my chances.
The question you ask is something better answered in a consultation with a family law attorney rather than a posting online. Generally speaking, there are so many factors that go into determining whether a move-away is in the best interest of the children. While a parent who has the majority of time with the children and has been the active parent has some presumptions in their favor, it is not automatic that a move is in the best interest of the children. Relevant factors to your scenario may be how long have your sons attended the school they are currently in or if they could still attend the same school if living with their father. The fact your husband is in training is relevant since if he didn’t get the job, the question would be would you move back to San Diego?
Move away cases can be difficult for Judges to decide, since usually there is not a parent at fault in the case, but rather post divorce live changes make a move necessary for one parent. The fact you would still be in state and four hours away may help your case more than if you were moving across country or out of state, but the impact on the children is what is going to be on the Judge’s mind. If you do not have counsel representing you and want some further assurances, I would suggest setting a up a consultation with an attorney to review the court filings and discussing the strengths and weaknesses of your case.
I would like to ask a question. If I do not have a job in another state, Arizona(currently live in California) but am activly seeking employment in AZ, would a judge grant a move away order? Father sees children approx 10 hours per week, has no job and no stable houshold for the children to stay at. I am originally from AZ, have no support in CA except for the father who is not a help or support at this time. Children are 1 & 2.
Remember that a family law Judge in California has wide discretion in determining custody issues, so there is no one factor that is going to automatically grant or deny a move away request. A Judge will usually want to know how you would support yourself or wehre you would live if a move-away is granted, so it is definitely extremely helpful to show you have a job lined up. Otherwise, you may need to show how you will be supported (such as living with family, etc.) will you are looking for a job. It would help to be able to show that your financial situation would be better in Arizona than what it currently is in California.
I left my ex in Aug of last year, and moved from ventura county to riverside county with my mother. I took my child with me but started to notice she didnt want to see or even talk with her dad. So I came back for her to be able to have a father in her life. Now that I am back in Ventura county my ex makes my life a living hell and only looks to harass me and threaten me with stop paying babysitter etc.. He doesn’t want any over nights and only picks her up from the babysitters. I am requesting a visitation schedule and child support, so now that I am req fianancial support he all of the sudden wants to force my daughter (3yrs) to spend nights with him. And when i say force really mean it. She does not go willingly. He has a very aggressive personality and has admitted to having anger issues. I left him due to verbal abuse towards myself. My question is can I request to move away because he will not let me live my personal life, and only stalks my online activity, will not stop texting me even though i have requested he do so?
You can always request a move-away, but you will need to show it is best for the child to move, which is more than just showing that you have problems with the other spouse. In your case, you may want to consult a family attorney regarding not just a move-away but also possibly getting some protective orders in place to restraining some of the problems you are having with your ex-boyfriend.
Hello, My boyfriend’s ex moved away to Hawaii with their twin boys. He did not know of the move, but it was for the better so he did not disagree. He pays child support weekly to her without court order. Nothing has gone through the system. She has now gotten re-married and is pregnant and trying to get state aid and my boyfriend got support papers in the mail to show proof of income etc. She claims it was a mistake and will cancel the rquest for aid on her end so he doesnt get attacked for support by the court. Now he feels it may be more beneficial to go through the court but is afraid he will have to pay more than he. Keep in mind he also pays court ordered support for his other two boys when he was married. (4children total, 2 court ordered support, 2 non court ordered). He is even willing to fight for full costody, but the mother of the twins in Hawaii cannot be in the life of the other family, so she cant be around. Thats why her being in Hawaii is ok, but with ehr new husband she should be able to manage her new pregnancy on her own and him/we not penalized. Any advise?
Usually, when someone is getting government aid, the government has a right to collect on support payments. It sounds like the Hawaii parent may be trying to hide the informal support your boyfriend is paying her, which is illegal. He should contact them and be honest about the support he is sending so it doesn’t get in trouble or end up owing arrears to the state.
Hello, my fiancee has a 10 year old and 66% custody. We are in the Bay Area. Her divorce settlement states that moves outside of the county require agreement by parents or a court order. We are planning on moving just 30 miles away into another county (15 miles beyond the county line), which will make my commute to work manageable (I currently live 50 miles away from fiancee), and I will be the major earner in our new family, if not the sole earner. The area to which we will move has excellent schools and will be a great environment for the child. If the ex objects to the out-of-county move, would such a short distance really be an issue in the courts? Looking at the maps, an “in-county” move of a 30 mile distance from where fiancee and child currently live is also technically possible which seems to make our issue a non-starter. Thanks very much in advance.
The distance is a factor, but the most important question is how will the move affect the minor child, and how will it change the current parenting plan. Would a move disrupt the other parent’s visitation, or make it more difficult, and how established is the minor child in the current community and school system. Those are some of the questions to consider. Ideally the parents should be able to sit down and work out a new agreement since it is not a really far away move, but again it will depend on how the move affects the other parent’s time with the minor child.
I currently have visitation as I live in another state and fatherhas primary physical custody. The child visits with me on breaks from school. I need to file paperwork due to fathermoving state without notification and requesting change of custody due to child’s request. My question is can I file being in another state or do I need to travel back to ca to file.
Thanks for the comment Betty. If your case is located in California, that is where you would need to file the request to modify prior custody orders. The state retains jurisdiction over child custody after Judgment. If neither of you is living in the California, you may be able to file a request to transfer jurisdiction to another state, but that request should be filed in California where your case is currently located.