The "Move-Away" Case

Parents who share custody of their children face a difficult dilemma when one parent wants to relocate or move away to a relatively distant location thereby effecting a Move-Away Case. Recent California cases indicate that in custody situations, if one parent is functionally the primary parent and the children have been living primarily with that parent, that parent is likely to be permitted by the courts to move away and take the children along, even if he or she agreed earlier not to move away or relocate.

California Family Code section 7501 provides, "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."

Although this statute appears to be straightforward, the interpretation of it has not been. The right of a custodial parent to move away with a minor child when doing so would adversely affect the noncustodial parent's visitation has been the subject of many diverse and contradictory appellate decisions over the last decade. Many courts approved restrictions on the parent's right to move away or relocate with the child and imposed burdens such as proving that move away was "necessary" or "expedient, essential or imperative." Some devised compound tests for move away cases to guide the trial courts in making the determination. Others, on the other hand, simply held that the custodial parent was presumptively entitled to move away.

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For more information, contact the Family Law Offices of Renee M. Marcelle at (415) 456-4444, or online at http://www.familylawmarin.com/--