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Move Aways

A family law move-away case typically refers to a legal dispute between parents or guardians when one party wishes to relocate with a child to a different geographical location, usually outside the current jurisdiction or a significant distance away. These cases can be complex and emotionally challenging, as they often involve custody and visitation rights. Here's an overview of how a family law move-away case might unfold:

  1. Request for Relocation: The parent or guardian seeking to move away must first make a formal request to the court, notifying the other parent of their intention to relocate with the child. This request typically includes details about the proposed move, such as the reason for relocation, new location, and proposed visitation schedule.
  2. Objection and Response: The non-relocating parent has the opportunity to object to the proposed move. They may file a response with the court, expressing their concerns and reasons why they believe the move is not in the child's best interests. This can initiate a legal process where both parties present their arguments.
  3. Best Interests Evaluation: In a move-away case, the court's primary consideration is the best interests of the child. The court will assess various factors such as the child's relationship with each parent, the impact of the move on the child's emotional and educational well-being, the reasons for the move, and the proposed visitation or custody arrangements.
  4. Mediation or Settlement Discussions: Before going to trial, the court will require the parties to attend mediation or engage in settlement discussions. The aim is to encourage the parents to reach an agreement regarding the relocation and new visitation schedule, without the need for a court decision.
  5. Court Hearing or Trial: If the parents are unable to reach an agreement, the court will schedule a hearing or trial to resolve the dispute. Each parent can present their arguments, evidence, and testimony to support their position. The court will then make a decision based on the best interests of the child.
  6. Court Order: Following the hearing or trial, the court will issue a court order that outlines the decision regarding the relocation request. The order may include specific details about visitation, custody, or any other relevant provisions to ensure the child's well-being and maintain the parent-child relationship.

It's important to note that family law move-away cases can vary depending on the jurisdiction and specific circumstances involved. The legal process and requirements may differ, and it's always advisable to consult with an attorney who specializes in family law to understand the laws and procedures applicable in your jurisdiction.

Can I move without giving notice to the other parent?

In California, if one parent has legal custody of a child and there are no court orders or agreements in place regarding the child's residence or custody, they generally have the right to move with the child without providing notice to the other parent. This is because, in the absence of any court orders or agreements, both parents have equal rights to the child, and one parent does not require the permission of the other to make decisions regarding the child's residence.

However, if there is a court order or agreement in place regarding custody and visitation, the relocating parent must typically follow the terms outlined in that order or agreement. If the order or agreement specifies that notice must be given to the other parent before a move, the relocating parent is required to provide that notice within a certain timeframe.

It's important to note that if a parent moves a child without providing required notice or in violation of a court order, the other parent can seek legal remedies by filing a motion with the court. The court can then enforce the existing order or modify it based on the circumstances.

What constitutes a move away?

Any move that would require the child to change schools or school districts, or create a material barrier to visitation (such as a long commute) for the other parent is generally the type of move that constitutes a move-away.  However, if there are already orders in place regarding the relocation of a child, the existing orders must be followed in terms of notice, and procedure.

What are the LaMusga factors and why are they important?

"In re Marriage of LaMusga" (pronounced La Moo Shay) refers to a significant family law case in the state of California. In the case of In re Marriage of LaMusga, the court established a framework of factors to be considered in relocation cases. These factors are commonly referred to as the "LaMusga factors." They provide guidance to courts when making decisions about whether a custodial parent can move away with a child. The factors include:

  1. The child's interest in stability and continuity in the custodial arrangement.
  2. The distance of the proposed move.
  3. The child's age and the child's needs for stability and continuity.
  4. The child's relationship with both parents and the impact of the move on that relationship.
  5. The relationship between the parents, including the level of conflict and the willingness to cooperate.
  6. The wishes of the child, if they are old enough and mature enough to express a reasonable preference.

These factors help the court assess the potential impact of the proposed relocation on the child's well-being, relationships, and overall best interests. The court considers each factor and weighs them to make a determination.

Besides the LaMusga Factors, what other factors does a court consider in permitting a child to relocate?

Reason for the Relocation: Courts typically evaluate the reasons behind the proposed move. They may assess whether the relocating parent has a legitimate motive, such as a new job opportunity, educational advancement, or a desire to be closer to family support. The court may scrutinize the relocation's purpose and assess if it is being done in good faith or as a means to disrupt the other parent's relationship with the child.

  1. Impact on Child's Well-being: The court may examine the potential impact of the relocation on the child's well-being, including their emotional, educational, and social stability. They consider factors such as the quality of schools in the new location, access to healthcare, community support, and the child's established ties and relationships in the current community.
  2. Parent-Child Relationship: The court considers the nature and quality of the child's relationship with both parents. They assess the involvement and level of attachment to each parent, the frequency and quality of visitation or parenting time, and the ability of the non-relocating parent to maintain a meaningful relationship with the child if the move were to occur.
  3. Co-Parenting Arrangements: Courts may evaluate the ability of the parents to communicate, cooperate, and effectively co-parent following the proposed relocation. A Court will absolutely consider the willingness of the relocating parent to facilitate continued contact and visitation between the child and the non-relocating parent, including potential visitation schedules, travel arrangements, and communication methods.

I have sole legal and physical custody of my children.  Does that mean I can move them?

A parent entitled to the custody of a child has a 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.  What this means is that if you have sole legal and physical custody of the children, you have the presumptive right to move the children, subject to the other parent's right to file a motion asking the court stop you from moving them.  The other parent has the burden to file a motion asking the move to be stopped and the other parent also has the burden to show that the move would be detrimental to the children.

It's important to note that the specific factors considered can vary significantly between jurisdictions and may be influenced by case law and individual judge's discretion. If you are involved in a relocation case or seeking legal advice, it is advisable to consult with a family law attorney, such as Shawn with Murphy Family Law, who specializes in your jurisdiction for specific guidance and information on relevant factors considered in your area.

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