Legally Speaking

Military Focused Family Law Facts

By Tana Landau, Esq.

Child Custody and Visitation: What Happens When One Parent Wants to Move Away

Move away requests or a request to relocate with a minor child can present challenges for both families and the Court. Move away requests can be highly contentious and exhaustively litigated. It is often a very emotional and complex issue; particularly when parents have shared custody of a child. The rights of each parent in move-away situations depend on the current custody arrangement. A parent with sole physical custody of a child has the presumptive right to change the child’s residence, subject to the court’s ability to prevent a relocation that would “prejudice the rights or welfare” of the child. The custodial parent does not have to show that the move is “necessary,” assuming the parent is moving in good faith. When making a determination with regards to a move-away order, the court must consider whether the relocation is in the best interest of the child. If the other parent can show that the relocation is detrimental to the child, they may request a change in primary physical custody based upon your request for a move-away.

The Courts will look at a number of factors in determining whether to grant the move away. These are known as the LaMusga Factors. These factors are as follows:

(1) the distance of the move: The Court will consider how far away the parent wants to move with the child as it can impact how frequently the other parent can see the child depending on how far the child or parent has to travel and what those travel costs may be.

(2) age of the child: The court considers the age of the child as younger children have different developmental needs than older children. Older children generally have established bonds that may be able to withstand longer absences.

(3) the children’s interest in stability and continuity in the custodial arrangement: The court will look at the current custodial schedule and how the move will impact that schedule.

(4) the children’s relationship with both parents: The Court will look at how bonded the child is to both parents and whether extended periods of time away from one parent would be detrimental to the child.

(5) the relationship between the parents: This includes but is not limited to their ability to communicate and cooperate effectively and their willingness to put the interests of the children above their individual interests. The focus of this factor is essentially the parents’ ability to co-parent. The Court will look at whether the moving parent is likely to foster a relationship between the child and non-moving parent.

(6) the wishes of the children if they are mature enough for such an inquiry to be appropriate: If a child is at least 14 years of age they can state a custodial preference under the law. If a child is under the age of 14, the Court has discretion to determine if the child is mature enough to inquire as to their preference which is determined on a case-by-case basis taking into consideration both the age of the child and their maturity for their age.

(7) the reasons for the proposed move: The court will look at whether the moving parent has a valid reason to move other than looking to get away from the other parent. This includes but is not limited to whether they have a job offer where they wish to move, family support, if there is a lower cost of living, and educational opportunities.

(8) the extent to which the parents currently are sharing custody: The Court will look at whether the parties share joint custody or whether one parent has primary custody. If the parents are sharing custody where a child is seeing each parent equally during the week, a change to that routine due to a move away may be more detrimental than to a child who is only seeing the other parent on alternate weekends.

These are not the only factors a court will consider. Courts will also consider other factors such as the social impact of the move on the child and impact on the child’s education. Thus, the court will consider the impact of removing the child from his or her established social circles, community, and friendships. The Court will also examine how the move impacts the child’s educational needs. Is the child being removed in the middle of the school year? If the child has special needs, can the child obtain the same educational support if moved? Is the child a junior being moved across the country for his/her senior year? These are all examples of the kinds of issues the Court considers in its analysis of what is in the best interest of the child.

Given move aways are typically an all or nothing issue, it is not uncommon for a move away request to go to trial. Move-away can be difficult to obtain if both parents want to be and have been involved in their child’s life. It’s best to consult a family law attorney if you desire to relocate with your child.

For more information about misconceptions about divorce, check out our website: www.frfamilylaw. com or call (858) 720-8250 and ask to speak with military family law attorney Tana Landau.

This article is intended only for informational purposes and should not be taken as legal advice.