Child custody can be a difficult situation when one parent moves away from the other parent.

First, there are two types of child custody under California’s Family Code. “Legal custody” refers to the right and responsibility to make decisions relating to health, education, and welfare of the child. “Physical custody” refers to with which parent the child resides with and be under the supervision of, subject to visitation orders and rights of the other parent. For each type of custody, parents can either share or retain sole custody over the minor(s). When parents equally share custody of minor(s), it is commonly referred to as joint custody. When one parent can retain the greater control of the custody, it is commonly called sole custody.

For a court make a custody determination, a court must consider the parenting plan that is in the best interest of the child. Under Family Code section 3011, a judge must consider all the circumstances bearing on the best interest of the minor child, including (1) the health, safety, and welfare of the child, (2) any history of abuse by one parent against the child or against the other parent, and (3) the nature and amount of contact with parents.

A parent who has sole physical custody and shares joint legal custody, as in the case of In re the Marriage of Burgess, may move minor children away from the other parent when it is in the best interest of the children. The custodial parent does not need to prove to the court that the relocation was “reasonably necessary.”

Family Code section 7501 says that a parent having custody is entitled to change residence unless the move is detrimental to the child. Because of the ordinary needs for both parents after a divorce to secure or retain employment, pursue educated or career opportunities, or reside in the same location as a new spouse or other family or friends, it is unrealistic to assume that divorced parents will permanently remain in the same location after dissolution or to exert pressure on them to do so.

However such an arrangement must be in line with Family Code section 3020, which favors frequent and continuing contact by the parents of the children after a divorce and also liberal visitation with the noncustodial parent if the custodial parent relocates.

In the case of In re the Marriage of Burgess, a mother was allowed to move her children 40 miles away from their father for several reasons. She was the primary caretaker of the children and had sole physical custody under a mediated temporary agreement. Also, she did not hide her intent to move and from the very beginning of the proceedings had expressed her intent to move to relocate for employment-related reasons. She had no intention of interfering with the father’s contact with the children. Additionally, the move would benefit the children because they would have access to private schools and extracurricular activities that they did not have before. The father was would also be able to visit the children regularly and often in this new situation. The court concluded that the move would not be detrimental to the children and would actually be to their benefit in this situation.

Child custody cases are very delicate matters. It’s important to hire a family law attorney who can understand your situation and provide you with the right advice and direction in order to accomplish the goals you seek on your case. The Law Offices of Michael S. Carrillo can provide you with just the proper direction on your case and he will seek all avenues in order to do that. Give us a call for a free consultation at (626) 799-9375.