How post-pandemic relocation complicates custody orders

The unprecedented challenges of the last few years - pandemic lockdown, skyrocketing housing costs, steep inflation on food and necessities, and painful prices at the gas pump for commuters - have caused many individuals and families to seek alternative living and working arrangements.

Big, expensive coastal cities like Los Angeles and the Bay Area, in particular, have seen a notable exodus, especially among families with young children. Many people report finding a new measure of contentment, work-life balance, and a more manageable cost of living in a fresh locale.

But this trend creates unique hurdles for divorced families who must abide by custody orders yet may face financial pressures to move away - to change jobs or work remotely and give up an expensive home in favor of a more affordable place to live.

In California, the laws governing move-away cases are complicated and have been evolving over the past couple of decades. Financial circumstances are one of many issues that a judge will evaluate in a move-away case.

Suppose you encounter a client that wants to know how their custody agreement impacts their ability to relocate for financial or other reasons. In that case, it's essential to advise them that custody orders are binding and only a judge can make changes.

The court must protect the best interests of the child above all. In most cases, the court-ordered custody and visitation agreement will only be modified when necessary due to a substantial change in circumstances.

As an individual, a parent has the Constitutional right to move. The law determines whether the child should relocate and how a move should impact custody and visitation orders.

Under California Family Code Section 7501, the parent with primary physical custody has a presumptive right to move - but this right is not absolute. They can relocate with the child, providing they have the other parent's consent or a court order. To prevent the move, an objecting non-custodial parent would have to demonstrate to the judge that the change would be detrimental to the child; this can be challenging to prove.

The situation is different when there is some form of joint physical custody, considered by California courts to be in the child's best interests in most cases and is generally defined as providing "frequent and continuing contact" with both parents. Neither parent has a presumptive right to move if both parents share "significant periods" of time and caregiving responsibility (typically, when the non-custodial parent has at least 30%). In this case, the burden of proof shifts - the parent who wishes to relocate would typically have to persuade the judge that the move is in the child's best interests and will not frustrate the other parent's relationship with the child.

A distance of 20, 200, or 2000 miles can all impact the parties' ability to meet the terms of the custody agreement and maintain consistent, meaningful parent-child contact. Therefore, move-away cases are highly complex and challenging, each unique, and resolution can take a long time.

A landmark 2004 case, Marriage of LaMusga, set a key precedent regarding what factors a judge must consider when deciding whether to grant or deny a move-away request. These include:

• Reason for the move - Does the move benefit the child? Better job/ lower cost of living so the parent can spend more time parenting, stronger schools, etc.? Conversely, if there is evidence that relocation is intended to disrupt the child's relationship with the other parent, the court is unlikely to look favorably on the move.

Child's age - The upheaval may adversely affect younger children.

Current custody arrangement - Legal and in actual practice.

Distance of the move - How much will it disrupt custody arrangement, schedule, contact, and routine?

Parents' relationship with each other, history of cooperation and communication - co-parents who have demonstrated an ability to work together may be viewed as more likely to maintain consistent contact even across a distance.

Child's relationship to each parent - is the child closer to or more reliant on one parent?

Child's wishes - children 14+ have the right to testify if they wish to, and younger children if the judge deems it appropriate.

Child's ties to the community - school, church, activities, extended family, routine.

Child's health and education - are there exceptional circumstances that make it essential for a child to stay in place?

Any parental history of domestic violence, drug/alcohol abuse, etc.

STEPS TO TAKE IF YOUR CLIENT IS CONSIDERING A RELOCATION:

Suggest they begin an open discussion with the other parent by explaining their reasoning and inviting thoughts on the matter.

Communicate in writing and keep detailed records of all exchanges.

Before going to court, engage in mediation. Avoiding court can save clients time and money.

If the ex-spouses can cooperate to agree on relocation and custody/ visitation changes, you can enter a stipulation, which, if approved, will be signed by the judge and become the new court order.

If they cannot agree, you must file a motion with the court and appear at a hearing.

Strategize. Make sure you understand relevant custody laws. Review the factors the judge must consider, prepare to address each of them, and identify your strongest arguments.

A special note for unmarried or separated parents: if no order is in place, both parents have equal custodial rights. Though technically nothing prevents one parent from relocating with the child, it is illegal to conceal the child from the other parent or prevent contact. Therefore, securing a court order and putting a visitation schedule in place before moving any distance with your child is advisable.