Child Move Away Request & Orders

A child relocation request, more commonly known as a child move away order, is a legal term used in family law court to describe a situation where a person who has custodial rights to a minor child seeks legal permission to move the minor child's residence a substantial distance away from another person who also has custodial rights to the same child.

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Note: Usually, but not always, the person with custodial rights to a child in a child move away order is the child’s biological parent. This is true whether or not the child's parents are married, never married, or divorced; however, other persons, such as adoptive stepparents, grandparents, or legal guardians, may have custodial rights to a child.

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Generally, a custodial parent may relocate with his or her child without resorting to a legal battle with the child’s other custodial parent, so long as the child's parents can agree on the child’s relocation. However, when a custodial parent objects to his or her child’s relocation (residential location), that parent may file a request for orders (RFO) to stop the other custodial parent from relocating their child.

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Note: A parent does not usually need to file a child move away request if the move is not substantial in distance and the circumstances will not substantially effect the status quo. What is considered a substantial distance varies depending on the circumstances of the parties. When a parent relocates his or her minor child only a minor distance from the child's other parent the parents can usually modify the child visitation schedule, if any, to adjust for any beneficial or detrimental impact of the move as it relates to child custody and/or child visitation issues.

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RFO Related to Child Move Away

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If custodial parents do not agree on a child’s relocation then the parent who wants to move with his or her child must file a child relocation request with the family law court. In deciding the issue, the court will examine the evidence related to the following factors:

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• The best interest of the child;

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• The status of current child custody orders (temporary or permanent);

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• The status of any child visitation orders (the frequency of parenting time);

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• Any change in circumstance requiring a move (the reason for the custodial parent’s relocation);

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• The de facto status of child custody (if no child custody orders are in place);

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• Any negative impact that would result in a change of child custody or child visitation;

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• The distance of the proposed move;

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• The child’s need for continuity and stability;

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• The child’s extended family relationships;

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• The relationship between the respective custodial parents and their minor child;

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• The parents’ ability to work with each other in exchanging physical custody of the minor child during holidays, vacation time, etc., if the proposed move away is granted;

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• The child’s needs (i.e. health, school, etc.);

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• The cost and availability of child visitation after a proposed move away;

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• The child’s connections to the community (the child’s connection to the proposed new community as weighed against the child’s connections to his or her current community;

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• The wishes of a child of sufficient maturity (usually at least fourteen (14) years of age;

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• The parent's ability to keep frequent contact in light of the proposed move;

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• Whether or the parent has already moved with his or her child and the other parent did not object, or the parent that moved reasonably relied upon the other parent’s statement that he or she would not object to a move away, and more.

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Note: If there a final judgment that indicates one parent has sole legal and sole physical child custody then that parent has the presumptive right to change his or her child’s residence regardless of the relocation distance or the reason for the move. This is especially true if the non-custodial parent has little, or very little, child visitation (parenting time).

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When parents share joint physical custody, a family law judge will consider the best interest of the child while assuming that the parent who requested the child move away order genuinely intends to move with the child. In other words, the court will not engage in a hypothetical relocation argument.

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Also, the family law judge will look to the actual child custody and child visitation arrangement that is currently followed, regardless of any court orders were supposed to be followed (de facto child custody arrangement).  In this sense, child custody is decided de novo (starting from the beginning).

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Caution: If a family law judge determines that a child move away is not in the best interest of the child the judge may change legal and/or child custody orders and/or child visitation orders to maintain the child’s best interest in light of the request to move away with a child. This means that a judge may change legal custody from one parent to the other parent if that change in custody would be in the child's best interest in light of the circumstances surrounding the proposed move away request.

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Note: Payment of child support does not entitle a parent to child custody or child visitation rights. Furthermore, non-payment of child support does not mean that he or she may not object to a proposed move away request. Also, child custody, child visitation, and child support issues may not be predetermined in a prenuptial or post-nuptial agreement. Any attempt to divest the court of its authority to establish or modify child custody and/or child visitation orders is invalid and unenforceable.

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Expert’s Recommendations: In complex child move away cases, the family law judge may enlist the services of an expert, such as a licensed marriage and family therapist (LMFT), a psychologist, a psychiatrist, or any other licensed professional with expertise in the field related to the issue upon which the court seeks the expert's guidance in order to make recommendation(s) that best serve the child. These expert evaluations, if necessary, often refer to the legal code section that provides the authority for such evaluations (i.e. “730 evaluation, 3111 evaluation, etc.).

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Preparing for Child Relocation Requests

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The moving parent should be prepared to answer questions relevant to the relocation request, such as information regarding job security, housing, education, child care, health care, living arrangements, housing availability, community safety, impact on relationships, visitation schedule, etc.

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Note: If a non-moving parent is unable to meet the changed circumstances burden to warrant a change in child custody the judge may still award a change in child visitation to minimize the child's loss of contact with the non-moving parent.

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For example, a parent who does not want his or her child to move away because that parent will not be able to visit with his or her child as frequently, may have his or her concerns relieved by an order from the court for less frequent, but longer visitation periods with his or her child (assuming the court grants the other parent’s request for child move permission). Also, if the non-moving party is financially burdened due to the proposed move away, then judge may order the moving parent to pay the non-moving parent's travel cost for child visitation, so long as this arrangement is in the best interest of the child.

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Note: The judge is not required to modify child visitation in order to satisfy the non-moving parent in a child move away request. However, if modification of child visitation is required to meet the best interest of the child after one parent move the parties’ child, then the court may modify the parenting time between the child parents.

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For example, if mom proposes to move her minor child from California to Florida, and dad objects to mom’s proposed move away, then the court will analyze different factors to determine whether or not the child’s move to Florida is in the child’s best interest. The court will use the factors listed above to make that analysis. If the court grants mom’s move away request, then dad may seek a modification of child visitation to continue frequent and continuing contact with his child (assuming dad had frequent and continuing contact before mom’s move away request). In consideration of dad’s request to modify child visitation, the court may do any of the following: modify child visitation, not modify child visitation, or, order mom to pay for dad’s travel (or child’s travel) to Florida from California, or vice versa.

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Establishing the Right to Object

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If the person objecting to a move away request has not established his or her right to object to that move away request then the court will not hear that person’s objection. This is because a person who has not establish his or her right to object to a proposed move away has no “standing” to object (no right to object). This means, that with some limited exceptions, only a minor’s legal guardian, adopted stepparent, or legal parent (biological or otherwise) may object to a request for orders related to a child move or relocation.

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For example, the court will not entertain an objection to a proposed child move away if that objection is raised by the minor’s half sibling, unless the child's half-sibling has first established custody rights to the child.

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Note: A person who has no legal right to object to a child move away request may nevertheless establish those rights concurrently with his or her object (i.e. request for paternity suit (establish parentage), grandparents’ rights, stepparent adoption, etc.). However, unless the child’s father, grandparent, or stepparent, has already establish de facto parenting status before the move away order is requested, then objection to the move away by that person is not likely to prevent the move away (see de facto parent status above).

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To learn more about child move away orders (relocation orders) and all legal issues related to child move away orders, such as paternity suits, grandparents’ rights, fathers’ rights, child custody, child visitation, divorce, legal separation, juvenile dependency court, domestic violence restraining order as it relates to protecting a child by relocating the child, and more, contact our divorce and child custody attorneys today for a free consultation. Call today!

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909-307-2645

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