What are Move Away Orders – the basics by Paul Staley
What are “move away orders?” “Move away orders” is a request made to the Court by one parent – usually the one with ‘primary physical custody’ – to relocate, with the children, to someplace far enough away that the move is going to make a big difference in the visitation schedule.
Need to move out of town? Outside the county? Across the country? Is your ex proposing to move with the children? Which parent has the most leverage? You may be in for a pretty wild ride through Family Court. The more prepared you are, the less wild that ride will be.
As a general rule, the more “child share” a parent has, the more leverage he / she has in a request to move. Still, the request has to be based on a good reason. Parents typically request a move-away order when they are being relocated for work or for a military duty assignment. There a whole bunch of special rules that kick in for “move-away” cases that don’t apply in other kinds of custody disputes. Sure, the over-arching “best interests of the child” trumps all, but figuring out what that means takes on a lot more complexity that a more mundane custody / visitation dispute.
The standard provision in any permanent custody order originating in San Diego County is that “Neither parent may change the residence of the minor child / children outside the county of San Diego without the written consent of the other parent or further order of the Court.” This provision is supposed to acknowledge that, yes, we’re a mobile society but that if a child is going to experience a radical change due to one parent moving, there ought to be an orderly way to figure what to do. So what do you do? For starters, this is a trip back to Court unless you and the other parent can hammer out an agreement.
There are any number of good reasons the parent needs to move: change of military duty station, job transfer, or relocation of their new spouse. It’s a really big deal because it forces the judge to decide whether to (a) okay the move-away or (b) change custody. It’s all or nothing. Often, the situation is that the child moving away will drastically reduce the child’s contact with the other parent. In fact, if it’s an interstate move, that’s the norm. If a military service member has primary custody, or if the primary custodial parent is married to a military service member, and the service member gets orders for some far-off duty station, for example, then the judge must decide whether the child should go, too, or stay behind with the other parent.[callout font_size=”13px” style=”coolblue”]Paul Staley represented me in a move away order when I was unable to get a job in the San Diego area and my ex-husband refused to let our children move two hours away. At the time, my children and I were incredibly distraught; he spent a great deal of time working on our case, as both an outstanding professional and a compassionate counselor, providing me with the legal means and the fortitude to work through this contentious, emotionally charged situation. As my children and I have been blessed to with the opportunity to settle into our new lives, we will always be grateful to Paul for his hard work, his guidance, and his finesse in working with the legal system. Simply put, he’s brilliant!.[/callout]
A request by one parent to move away with the minor children is the proverbial nuclear explosion in family court proceedings. Forget the arguments about whether Johnny and Jane are going to have one – or two? – mid-week overnight visits with the the noncustodial parent. A move-away brings the level of conflict and complexity to a level not seen in any other kind of family court proceeding, in my decades of experience. A psychologist is much more likely to be involved in a move-away than in other matters. The financial price tag alone can be quite high. But, often parents feel they have no other meaningful choice other than to promote the move (the moving parent) or oppose it (the non-moving parent), at great cost. There have been two watershed cases in the last fifteen years that reached the California Supreme Court on this issue. These are available online these days and are: In Re Marriage of Burgess and In re Marriage of La Musga.
The issues can be extremely complex. The Court is required to consider and make findings about a long list of questions. For starters: the distance of the move? What is current parenting arrangement? The strength of the bond between the children and each parent? Any past history of domestic violence between the parties? How involved is each of the parents in the education of the children? Does the child have significant social ties in her current place of residence that will make a move really disruptive? Which of the parents is more likely to foster a flourishing relationship between the child and the other parent? And…we’re just getting started!
What you can tell from the broad general rule and these more specific items is that a parent shouldn’t bother requesting to move if the reason offered by the moving parent is that the children would be better off without that horrible other parent
Each parent tries to persuade the judge that the facts compel the judge to agree with his / her position. Anyone seriously considering proposing or opposing a move-away motion would do well to get excellent legal advice early. The most tragic cases we have seen are where a parent tries this on their own, winds up with a bad preliminary result and then comes to me for damage control. Don’t let that happen to you. Get ahead of the curve!
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