It happens all the time. One parent gets a job offer in a different part of the state. Or, there is an opportunity to be closer to the extended family. Whatever the reason, many parents find they need to move away from their children’s other parent — and they plan to take the kids with them.
Whether you’re considering a move or your ex might be considering one, it is important to understand how this could affect your child custody and parenting time. The rules are somewhat complex, and you should not get your legal advice from a blog post. Before you move away, or if your ex is moving away, talk to an experienced family law attorney.
Your physical custody order determines the process for moving away
When one parent wants to move, it can materially affect the other parent’s ability to parent the children. Therefore, courts require one parent or the other to introduce evidence to show why they should or should not be allowed to move.
The process depends on what kind of physical custody order is in place. Physical custody refers, more or less, to which parent’s home the children live in.
Sole physical custody, also referred to as “primary physical custody,” is a type of court order in which your children live solely or primarily with you, not the other parent. The other parent may have parenting time with the kids. If this is a permanent order, your children’s other parent can object to your move but will have to show that the move would actually harm the children.
More commonly, the parents share joint physical custody. This is a type of court order where the children spend roughly equal time with each parent. Under this type of order, if one parent opposes the other parent’s move, the parent who wishes to move must show that moving is in the best interest of the children.
Your custody and parenting order will change
If the court decides to allow the move, a new or modified parenting plan is in order. This will generally include a change in when the non-moving parent gets to spend time parenting the children.
For example, you may be accustomed to weekly parenting time, but that may no longer be possible. To make up for that lost time, the non-moving parent may get additional time over summer vacation or during the holiday season.
In addition, you may negotiate — or the court may order — virtual visitation. This is typically a video-conference with the children via FaceTime, Zoom or similar video-conferencing software. And, regular contact via email, phone calls and social media is encouraged.
You can’t get a new custody order from a new state
It is important to keep in mind that your California custody and parenting order is binding. Even if you move to another state, you will not be allowed to re-litigate your basic custody order. There is a law called the Uniform Child-Custody Jurisdiction and Enforcement Act which requires states to respect existing custody and parenting orders from other states.
A major purpose of this law is to prevent parental kidnapping or an attempt by one parent to seek a more advantageous custody order by moving to a new state.
In general, your California custody and parenting order will remain in effect even if you move to a new state. California retains jurisdiction over you and your children until such time as it is more appropriate for another state to take over jurisdiction.
Moving is a reality for many families. However, California courts always base child custody and parenting decisions on the children’s best interest. Whether you believe it is in your children’s best interest to move away or you oppose such a move, an experienced family law attorney can help you make a persuasive case to the court.