After a divorce or custody case is over, parents are obviously still bound together as they share a child or children. Despite this bond, it is common for one parent to want to relocate after the divorce or custody suit has ended. The parent may need to relocate out of San Diego County for a job, for financial reasons, or maybe the parent wants to return to live in an area where he or she has closer support from family and friends. No matter the reason, if the relocation will affect the way the custody order functions, it will be necessary to change the order. Most custody orders made in San Diego include language that says neither parent may move the child out of San Diego County without forty-five days written notice to the other parent, written permission by the other parent, or by an order of the court granting the move.
If you need to move, but the other parent does not give permission, you must file a motion to ask for the court’s approval. It is important to remember that the court will not be deciding whether the parent may relocate: the court will decide if the child will be relocating. The parents will be required to attend mediation, but if they are unable to reach an agreement, either party has the right to go to trial.
The first inquiry is whether the parent seeking to relocate with the child out of San Diego County shares joint physical custody or has sole custody. If the parents have joint custody, the parties may start on fairly equal footing. The court needs to decide whether the relocation and attendant change in the custody and visitation situation is a substantial change in circumstances, and in the child's best interest.
If the parent seeking to relocate has sole physical custody, then it is a very different case. The parent seeking to have the child remain must first prove that the relocation would be detrimental to the child as there will be a presumption that the sole custodial parent is acting in the best interests of the child. The non-custodial parent can overcome this presumption by providing evidence such as the strength of the bond between parent and child, and how the relocation would harm the child by virtue of weakening the bond, sibling bonds, and other connections to San Diego. If the non-custodial parent can prove the detriment, the court will then decide when is in the child's best interest.
When deciding whether a parent may relocate with a child, the court examines a variety of factors. These factors including:
- the importance that the child maintain a stable environment;
- the distance of the proposed relocation;
- the age of the child;
- the relationship the child has with each parent;
- the relationship the child has with any siblings and if those siblings will be split;
- the desire of the child, if the child is old enough to express such a desire; and
- the relationship the parents have with each other, and the likelihood of the relocating parent to help facilitate contact and visitation
The court will also examine the reason for the move. It is important that the relocating parent is doing so for a legitimate reason. Evidence that the relocating parent is doing so for the reason of purposely disrupting the relationship between the other parent and the child will be taken very seriously by the court, and could factor heavily into the court's ultimate decision.
If you are facing a relocation, call us today. We can help you understand the law in California concerning relocation and better understand the potential outcomes in your case. Call us today at 619-800-0384 for a consultation.