Few things in a divorce can stir more intense emotions than contested child custody issues. In California, the court want both parents actively involved in their children’s lives after divorce and will make every attempt to approve a parenting plan that facilitates that.
However, there are times when co-parenting can become complicated, such as when one parent wants move away with the kids, creating a custody and visitation hardship on the other parent.
Resolving move-away issues can get heated and messy, so it’s critical to know your rights and what to expect from the courts if you’re facing this kind of situation.
I sat down with Certified Family Law Specialist Travis Krepelka to discuss how move away process, costs, and more.
Let’s jump in.
What is a move away case?
Krepelka: People file their case in in whatever county they’ve been in for three months and as long as they’ve been in California for six months. The county where they file their case, is county that has initial jurisdiction over their minor children. With move-aways, we’re talking about custody and visitation issues, and we’re talking about minor children of the parties.
For example, if you’re in Santa Clara County, Santa Clara County has jurisdiction over your kids. But California, as a state, has exclusive jurisdiction over the kids.
I don’t want to get too far afield on jurisdiction but staying within the state is easier than moving out of the state, jurisdictionally. And I’m talking about where a case is located, not about where a child lives.
So, with a divorce, somebody’s got to move. They’ve been living in one house, and maybe they’re both going to move…they’re going to sell it and move somewhere.
As it frequently happens, maybe one of the spouses doesn’t have any family locally, no support network, and they want to move with their kids back home, which may be in some other state. Any time you are proposing to move a child’s residence somewhere further from the other parent than they can easily maintain a working schedule, as well as a regular, frequent, and continuing time share arrangement, it is probably going to be deemed a move-away.
Probably going to be deemed a move-away? It sounds like there’s some discretion that’s involved.
Quite a bit actually. I’ve been increasingly frustrated with what some of our judges and the child custody evaluators who look at these issues are determining is a move-away case, but it is what it is.
Let’s assume that the parents both have substantial time with their child. Perhaps, even if it’s not equal, it’s something between 70/30 and equal. If it’s in that range, then I think a court is probably going to call for a move-away analysis. That’s if the move is going to put anybody in a position where they can’t easily and routinely take the kids to school or pick the kids up from school.
I would argue that even within Santa Clara County, moving a child from Palo Alto to Gilroy is a move-away. I have had judges make the determination that moving from Cupertino over Highway 17 to Santa Cruz is a move-away.
Because it removes the ability to be involved daily in that child’s life. It removes the ability to take them to school, pick them up from school, and it kind of automatically relegates one parent to weekends.
I started with the jurisdiction over the children because that’s very important, because one of the fundamental rights under the U.S. Constitution that we all have as adult citizens of the United States is the freedom to move throughout the 50 states without restriction, and no court or government is allowed to restrict us.
So, the court cannot tell me that I can’t move. But what the court can do is tell me whether or not my kids can move.
At that point if the court says the kids can’t move, then you as a parent have a choice of do I want to move anyway?
That’s exactly right.
And if they move forward with that, how does custody look? I know that’s an easy question with a complicated answer.
It is a long answer, yes.
Would the custody arrangement potentially remain in place, or would that be scrapped, and now you’re starting over?
If we’re having move-away litigation, by definition the move, if it occurs, is going to scrap our arrangement and make us start over.
Let’s say parents have 50/50 time worked out. They go a week on, a week off and they each live within three miles of each other, and that’s been the situation. Now one of them wants to move and that move is going to become an hour commute between residences. It’s within the Bay Area but it’s going to be an hour between the parties’ houses and maybe a little bit more depending on traffic patterns.
If they make that move, custody has to change. If the judge grants that move and says the kids can move with that parent to that new location, then the parent left behind is going to end up with a reduced timeshare, because you just can’t drive a kid an hour and 15 minutes one way to school every morning.
Or the judge may say, “Sir or ma’am, you’re free to make that move an hour away if you want to, but I’m going to say the kids will live primarily with the other side because I think that’s more stable for the kids, so they can keep going to the same school.” That’s going to reduce the time of the parent who moves, and they’re going to end up facing that reduction.
What is the difference between legal custody and physical custody?
Legal custody is decision-making custody, decisions about the children’s health, education and welfare. Physical custody is how does the child divide their time.
How far can you move without the other parent’s permission if you have joint custody in California?
There is no law that puts miles or a travel time on that. That’s where you get into the kind of disputes I’m talking about.
In well-crafted custody orders or certainly ones that I prepare, but even coming out of mediation, like in Family Court Services, if the people are reminded by their good counsel to think about this issue, you will create the loss of your case by saying within your own custody order that there’s a 60-day notification requirement of any proposed move of more than 10 miles, or whatever you might want to choose.
One way I like to do it is for any proposed move that would change the children’s school district.
How does the move-away process work? What experts are involved and what factors does the court take into consideration?
Once it’s been determined that you have a move-away issue and that both sides are committed to going forward on it, the courts will invariably order a move-away evaluation. You’ll be sent out to the same group of professionals, the PhDs and the marriage and family therapists who do general custody evaluations for assessing what is in these children’s best interests in terms of time sharing arrangements between their parents, those are the same group of people who are also going to do move-away evaluations.
They will look closely at the length of the move, in terms of time, in terms of distance, the age of the children, the stability of the children, meaning how long have they been in their current arrangement? Have they been in the same school their whole lives, or did they just move into one area for six months and now they’re going to move again, that can cut differently depending on what those facts are.
Also, they’ll look at how does the move affect the overall stability for the kids? Which parent is willing to share? That’s a big component that comes up in the case law.
Courts will consider, “If I grant this request to this moving parent, and of necessity the other parent’s time is going to reduce, do I, the court, really believe that the moving parent who’s going to gain an increase in time, is that person going to fully support the relationship, and really work hard to make sure the kids don’t lose something in the relationship because they’ve lost time?”
Those are just a handful of the factors that are considered by someone doing a move-away evaluation who will then produce a written report of findings and recommendations as to this move and its effect on the children and their bests interests.
Sometimes we also layer in a school comparison expert into that analysis. I’ve found some value there. You can have people whose job it is to write reports comparing one specific school versus another, and all of the in’s and out’s of one might be better.
Generally, I want to do that as quickly as possible so I can supply the move-away evaluator with that analysis, assuming it benefits the parent I represent. But in any event, you finally get recommendations from the move-away evaluator. If a parent doesn’t like the recommendations, then that parent has the right to a trial.
Is the move-away evaluator just one neutral person, or are you hiring individual experts?
One neutral person.
How to Win a Move Away Case in California
What are your top tips to win a move away case? What are the things that they should be doing to prepare to help bolster their case?
That’s a great question, because it’s really hard to win a move-away case. I’ve been losing move-aways and everybody’s been losing move-aways for years now. It is hard to get one granted these days, in my experience, and from reading case law.
I would say that what you’re going to want to do is make the judge’s job as easy as possible, and the evaluators job as easy as possible by anticipating and having a plan and a solution that looks good and is reasonable for all of the problems that are going to arise.
Let’s start with where you’re going to live. Don’t just say you’re moving to a city. Show pictures of the apartment complex with the swimming pool and the nice park that you’re planning to live in, or something like it.
Share the exact rental amount and how that’s $1200 dollars a month cheaper than here, and that’s going to benefit the kids because you’re going to have more money available for them.
Lay out the school. Bring in a school comparison expert to show why the new school they’d be going to would be better. Point out that while they will have to make new friends, their cousin who they see twice a year does go to that same school. Everything that you can like this… anticipate, anticipate, anticipate.
Share that it’s super important to me, if I’m the moving parent, that my ex not suffer in this relationship, so I want to make sure that the kids have time with that person. Even if it’s kind of lost during the week,
For example, I’m going to set up Skype calls for them with the parent every night, and I’m going to commit to doing those at 7 pm and I’m going to give up both the February and the April break from school.
I’m going to not ask for those. I’m going to give those to the other parent who is otherwise losing time. I’m going to offer a three-week vacation in the summer to that parent, with me only having one week, to try to keep that relationship alive.
Demonstrate that you’ve thought these things through, and that you’re committed to this actually being better for your children as opposed to just better for you.
Let’s circle back on the jurisdiction issue that you raised earlier. Let’s say you have parties that get divorced in one county and it remains fairly amicable, but both of them move to another county, at that point who has jurisdiction for a move-away case?
Does the county where the original divorce itself took place and the custody arrangement was originally cemented have jurisdiction, or is it the new county that they live in? How does that differ if it’s one parent that’s in a new county versus both of them in a new county?
It’s the original county that has jurisdiction unless and until the venue has been changed by court order. In short, a request to change venue means you get a new case number, because every county has a different system for assigning case numbers, so a change in venue is a change from one county to another within California, where now your case proceeds in that county.
Those are relatively easy to get if people want to bother. Let’s say the parent with primary custody has moved to a new county and they want to take the time to file a motion to change venue, it will probably be granted. In my experience, it will go through if they’ve been there for any reasonable length of time and they’ve bought a house or whatever, and it’s clear that they’re not bouncing around.
It doesn’t come up as often as you’d think for a few reasons. A lot of the moves county to county that happen are people often staying within a couple hours’ driving distance. So whether it’s San Mateo, Santa Clara, Marin, San Joaquin, Contra Costa, Alameda, it’s just as easy to just stick with your existing lawyer that you’ve had and just go back to court even though you’ve got to drive two and a half hours to come to court one time.
People tend to just leave the case where it originally was, and part of that’s because to change venue, you have to file a motion and motions cost money, and they might be opposed and you’ve got to go argue about it.
The other thing is that even though it’s frequently granted, I have never seen the clerks of the respective counties accomplish the bureaucracy and paperwork of transferring the case in less than nine months. And I have had that several times.
So you get the order from Santa Clara County granting your change of venue to Yolo County, and now you have nine months minimum where you have no court available to you. That’s because if you try to go forward in Santa Clara and that comes up, they’ll say, “No, that’s in the process of being moved. We don’t have that. That’s off in the truck being moved.”
And then you go to the other county and they’ll say, “Well, no we’ve never heard of you. We don’t have your case yet.” So, it is a bureaucratic mess.