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Can you move away and take the kids?

In the not-so-distant past, it was quite common to live out your life in the same community in which you were raised. People married hometown spouses and had large, extended families all rooted in the same small towns and rural locales.

In the later years of the 20th century and now, the above scenario is much more of a rarity. People move regularly — often great distances from their childhood homes — and nobody bats an eye.

Except when the parents are divorced or otherwise apart. Then, as it turns out, there might be a major problem if the parent who is moving away wants to take the kids as well.

The courts, custody and moving with the kids

If you are the parent who will be separated from the children, it's important to understand that you have the right to oppose the children moving, at least in most situations. As with all custodial decisions, the courts are bound to act in the children's best interests.

If you are already an involved parent who participates in the kids' daily lives, that will work in your favor. The court considers how the kids will miss your regular physical presence in their lives — cheering on their teams, checking homework, being a room mom or a field trip dad.

But the court also weighs the other parent's circumstances. Is he or she moving in order to remain gainfully employed? That, too, affects the kids' well-being and comfort.

California — a transient state?

Of course, there are plenty of native Californians here, but California (like Florida) is a state with many non-native residents. This means that the family law courts tend to see a good number of move-away custody cases.

When a child is very young, judges often err on the side of continuity and stability and rule that the kids will stay with the parent who will remain, at least until they get a little older.

California has more permissive move-away laws than many other states. Here, the non-custodial parent bears the burden of proof that moving off will cause harm to the child(ren).

Additional factors in the move

California family law courts also consider the following when rendering their custody decisions in move-away cases:

  • How far away? If you're moving a few hours south to Fresno, the court may consider that doable in terms of shared custody. A longer move to Dallas might not get the nod, as the court could decide the distance would disrupt the parental relationship too much.
  • Is the move in bad faith? While you might never consider doing this, plenty of parents use innocent children as pawns to get back at an ex. Courts look to the past for evidence of "restrictive gatekeeping" patterns wherein the custodial parent disrupts a child's relationship with their other parent.
  • How old are the kids? In addition to some children being perceived as too young to move away, once kids reach a certain age, they may object to leaving, e.g., older kids with strong community roots who are involved with sports or other extracurricular activities. The judge may or may not ask them their preference. At 14, the presumption is that children may testify, however.

As you can tell, there is no one-size-fits-all answer. If you are planning a move, make sure that all your custody ducks are in a line.

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John T. Chamberlin, Attorney at Law
699 Peters Avenue
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Pleasanton, CA 94566

Phone: 925-271-5650
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