Things change when parents separate. You may have been offered a promising new job in another city, or your new spouse has a job offer. You have your sights set on the positives of the move – a pay raise, a safer city, great schools, having the children be closer to extended family. For the other parent, transitioning from frequent time with the kids to only major holidays and summers can be a bleak prospect, and you will be met with resistance. I get it. Move aways are never easy and unfortunately, one parent is not going to be unhappy with the outcome.
The Court must take into account several different considerations. The Court will look at the Burgess case for direction. The holding In re Marriage of Burgess (1996) established that the custodial parent requesting the move does not have the burden to prove that the move is necessary. Instead, he or she "has the 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." Burgess expressed a desire to keep stability and continuity for the child while looking at what is in the best interest of the child.
What does this mean? It means that unless it can be shown that the move is detrimental to welfare of the child, the Court will very likely allow the custodial parent to move away with the child. In considering what is in the the best interest of the child, the Court will want to keep stability and continuity in the home. Thus, if the child has been living primarily with one parent, the Court will be reluctant to change custody unless it can be shown that a move will be detrimental to the welfare of the child.
If you are the custodial parent requesting the move away, incorporate the philosophy of Burgess into your own case, and focus on how the move will be in the best interest of your children. List the positives of the moves, and gather the documentation to support your position. Presenting the right information to the Court is key, and after handling numerous move-away cases in my career, I have a few ideas on how to present your case:
Children’s schedule. Come prepared with a proposal for a custody schedule that is in the children’s best interest. Create a schedule of time that the other parent will be able to have the children if you move. Go online and check the children’s school schedule in the new school district and see which school vacations and long weekends can be spent with the other parent. Summer, Winter, Thanksgiving, and Spring Break are all times the children would normally have vacation from school. You can also offer for the other parent to come out and visit the children in their new home a few times a year.
Opportunities for the children. Outline the opportunities that the children will have in the new city. Do they have a world-class gymnastics or swimming program? A junior-scientist afterschool program that your daughter would love? A local theatre program for your son? Do your research on the new area and print out the summary and yearly schedule for these exciting opportunities.
Compare the quality of schools. Will the children have the opportunity to be enrolled in a highly-ranked new school district? There are numerous school ratings sites and reviews available online. Compare their current school and district rankings with the new one. Print out your findings, and be prepared to defend the information you have found.
The most common reasons I have seen requesting a move-away are employment offers in a new city or state, a new marriage, and moving home to be closer to extended family. The high cost of living in California is often cited as a reason – “My money would go further to provide for our children in a lower-cost state.” Often, the circumstances necessitating the move cannot be avoided, and it is no longer a question of, “What if I move?”, but “What will happen when I move?” The Court will not instruct one parent not to move, although they may strongly recommend against it. The Court will consider changing custody of the children to a plan where the parent staying behind will be granted the primary timeshare so that the children are disrupted as little as possible. Keep this possibility in mind when petitioning for the right to a move-away with the children.
If you are a non-custodial parent objecting the move away, you may have an uphill battle. However, all is not lost. You want to show the Court that a move would be detrimental to the welfare of the child. Perhaps the child has a strong family and community connection where he resides. Perhaps the child is in therapy and moving him to a remote location can be detrimental to his emotional well being. You will need to make a list of all the reasons why the move is not in the best interest of your child.
No attorney is able to guarantee the outcome of the case, and no one can predict how the Judge will rule. Preparing your case to present to the Court is your most powerful tool in a proposal for a move-away. Good luck to you and I hope this helps!
Shauna M. Albright,
Founder and Managaing Attorney of the Albright Family Law Group
Big Firm Expertise. Small Firm Attention.
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