A move-away case is essentially a proceeding where one party wishes to change the children’s primary residence to a distant location either in or out of their current home state such that the non-moving party’s time with the children will be significantly reduced. What is important here is that the Court does not care where the parents live. The Court’s concern is only where the children live. That is the ultimate question in move-away cases.
These types of cases are gut-wrenching and emotional for children and parents and courts do not deal with them in short shrift. Additionally, once the court orders that a parent can move away with the children, it does not stop there. The Court can and most certainly does impose some strict conditions on the move so as to ensure that the other parent does not get left out. You need to be very careful when you get involved in this type of case.
Whether you are the parent seeking an order to move away with your child or the parent opposing the request, you could increase your chances of winning your move-away case by doing these five steps.
California recognizes that the parent who has more than 50% custodial time has a presumptive right to move with the children. If you have less, meaning exactly 50% or less, then you do not have this presumptive right. If you are looking to move away, then you must have more than 50%. Keep in mind that though this right is presumptive, the other party will have the opportunity to rebut the presumption by demonstrating that the move is not in the children’s best interests.
The court’s primary and ultimate concern is the best interest of the children. They may ask: What does that mean in a move-away context? How old are the children? What ties do they have to the community? Do the children have local extended family that they will no longer see? How will the move affect the children’s relationship with the other parent? How will you ensure that the children continue to maintain frequent and continuous contacts with the other parent if you are moving? How successful were the parents in communication and co-parenting?
A non-moving parent (who has joint legal and joint physical custody) has a right to the following things in a move-away case. These rights include: 1) A meaningful child custody mediation; 2) A child custody evaluation; and 3) A full evidentiary hearing. If you want to move tomorrow, then you will have problems as this process can take several months. You must be prepared for the long haul.
Child Custody evaluations can be expensive. They can run anywhere from $7500.00 to $25,000.00 and up. That expense coupled with attorneys’ fees for a move-away case can mean that you can spend $50,000.00 to $100,000.00. If you want to move away, you better save your money. Conversely, if you find yourself opposing a move-away, you better save your money. If the opposing party earns more than you or has more ability to pay fees than you, then you can always ask the court to order that the other party contribute to your fees and costs. But don’t count on that. Save your own money.
You must hire the right attorney to represent you. Your attorney should preferably be local, appear in that particular courthouse regularly, know the local rules, and have familiarity with the judicial officers. Therefore, if your case is in Ventura County, hire a Ventura County attorney.
All of these things are important, but here is the most important thing. Is your attorney a trial attorney? A contested move away case will result in a trial. Does your attorney litigate trials? I do!
I have litigated hundreds of family law trials in my career. In truth, while most family law attorneys loathe or seek to avoid going to trial, I actually like it. The best attorneys are trial attorneys. Trial attorneys know the Evidence Code and how to get evidence admitted for you and how to keep negative evidence out. They know what questions to ask both favorable and hostile witnesses. A good trial attorney is absolutely vital if you want to win your move-away case.
If you are initiating a move-away case or you find yourself having to defend one, you need a competent and aggressive trial attorney on your side. You also need some peace of mind when it comes to expenses. Since I have been doing these for many years, I know essentially what needs to be done on them. I know what time needs to be spent and how to strategize for maximum success.