Move Away

Moving Away – The Basics


One of the most contentious issues to arise between parents can be the right of one to move away with the children. Often, parties remain living in the same (or nearby) town as the marital residence. However, at times a custodial party wishes to move a far away, perhaps to another state, whether for a new job or to be closer to family.


Generally, a parent who has a permanent order for sole physical custody (also called primary physical custody) can move away with the children unless the other parent can show that the move would harm the children. An evidentiary hearing is only required if the noncustodial parent can make a prima facie showing of prejudice from the planned move.[i] Absent such a showing, the presumptive right of the custodial parent to move with the children prevails.


Family Code section 3024 discusses the notice required in a move-away situation; it provides:


“In making an order for custody, if the court does not consider it inappropriate, the court may specify that a parent shall notify the other parent if the parent plans to change the residence of the child for more than 30 days, unless there is prior written agreement to the removal. The notice shall be given before the contemplated move, by mail, return receipt requested, postage prepaid, to the last known address of the parent to be notified. A copy of the notice shall also be sent to that parent’s counsel of record. To the extent feasible, the notice shall be provided within a minimum of 45 days before the proposed change of residence so as to allow time for mediation of a new agreement concerning custody. This section does not affect orders made before January 1, 1989.”


Thus, a parent who has sole physical custody is presumed to be able to relocate with the children so long as he or she gives proper legal notice to the other parent.[ii] However, if the court order does not allow a move away absent written agreement or further order, the parent who proposes to move must file a formal request with the court and obtain a move away order. (A noncustodial parent will still have the initial burden to show a detriment to the children if there has been a final child custody adjudication.)


If the parents have joint physical custody of the children and one parent does not want the children to move, the parent who wants to move with the children must show the court that the move is in the best interest of the children.[iii] Although the physical custody label (“joint” or “sole”) in a parenting agreement is important, to the extent there is a dispute, the court will usually look at the actual parenting schedule at the time of the move, rather than rely on the schedule the parents put in their parenting agreement.


In the event a court is evaluating a move-away, the Marriage of LaMusga[iv] lays out the factors to be considered and standard to be applied when a trial court evaluates a custodial parent’s relocation request. The Court discussed in detail case law establishing factors affecting a court’s determination as to whether to modify a custody order to allow a parent to move away with a child, including the reason for the proposed move, the children’s interest in stability and continuity, the distance of the move, the age of the children, the children’s relationship with both parents, the relationship between the parents, the wishes of the children (if mature enough for such an inquiry), and the extent to which the parents currently are sharing custody.


The determination of a move-away case will be highly dependent on the specific facts. Because move away cases have the ability to become particularly emotional, contentious, and complex, it is always best practice to seek advice from counsel as to the circumstances in your particular case.

[i] In re Marriage of Brown & Yana (2006) 37 Cal.4th 947.

[ii] Every other weekend and one night per week does not amount to “joint physical custody” for purposes of move away cases. In re Marriage of Biallas (1998) 65 Cal.App.4th 755 (emphasis added).

[iii] See In re Marriage of Burgess (1996) 13 Cal. 4th 25, fn. 12; see also Montenegro v. Diaz (2001) 27 P. 3d 289 (“Under California’s statutory scheme governing child custody and visitation determinations, the overarching concern is the best interest of the child”).

[iv] (2004) 32 Cal.4th 1072.