Bay Area Family Law Blog

Aug
23
2012

Moving Children Out of State After Divorce

Picture this: your divorce is final and you’re trying to put your life back together. Your job is stable, but you’ve been looking for a better job for months. Then it happens. You find the job of your dreams! Only catch: it’s in Virgina. To take it you’d have to move clear across the country and uproot the kids – you can’t exactly leave them behind. And if that’s not bad enough, there’s another large (but more familiar) obstacle in your way: your ex. He never seemed to care about the kids before the divorce, but somehow he got joint custody, and now he won’t consent to your moving the kids out of state. (Exes are the gifts that keep on giving, aren’t they?)

Let’s look at things from the other perspective. Say the kids are happy living primarily with mom, and dad is very involved in the kids’ lives. He’s personally coaching little Jessica in tennis and she’s ranked nationally in the under 5 category. Mom doesn’t waste a single day post-divorce – she immediately finds a great new boyfriend online. He’s rich! He’s handsome! He’s 6’4”! And he just invited mom and the kids to come live with him on his sprawling 124-acre ranch… In Calgary. Wonderful.

In both of these scenarios, the parties will likely wind up in court on what we cleverly refer to as a “move away case.” This is not going to be an easy case from either party’s perspective. California courts are loath to separate children from their parents, but they do sometimes allow it. So even if one parent has primary custody, the court will want to hear very good reasons before allowing that parent to move the children out of state.

The court’s determination in these cases boils down to an evaluation of the children’s best interests. There are a lot of factors that go into determining best interests, but the courts are generally of the opinion that maintaining frequent and continuous contact with both parents is one of the most important. That makes it very difficult for one parent to move the children out of state after divorce if the other parent objects. That said, it does happen, and the most common scenario for getting approval for a move-away is one in which the non-custodial parent is disengaged or doesn’t spend any meaningful time with the children. If the non-custodial parent is a big part of the children’s lives, the battle is going to be a lot longer and a lot tougher.

Courts look at almost every factor in making their decision about moving children out of state after divorce. Here are some examples of facts that are in favor of a move-away:

● Older children;

● Non-custodial spouse has a very limited timeshare, is disengaged, violent, or is a substance abuser;

● Proposed new home has better schools, a lower crime rate, a better support system (including extended family), or similar features that are good for the kids;

● Better employment opportunities for the custodial parent in the proposed new home;

● Children do not have special attachments to their current home (e.g. medical needs that can only be treated effectively there, special hobbies that are only available there, etc.)

Virtually every factor affecting the kids is relevant to the Courts. If you’re seeking a move-away, your strategy is to highlight how beneficial the new location will be for the kids in all areas of their lives. It is also critical show the many ways you will keep the connection between the non-custodial parent and the children strong. Committing to facilitating calls or Skype video chats, helping the kids spend vacations and other special occasions with the non-custodial parent (including chipping in for airfare), and other strategies for keeping the bond strong, all help tip the scales in favor of approving the move-away.

If you’re contesting a move-away, your approach is to focus on how well adjusted the kids are to their current environment, and how disruptive a move would be. You want to establish that your relationship with the kids is strong and consistent, and that their new home simply wouldn’t be able to approximate the benefits of staying near you.

If you thought a move was a great way to wipe the slate clean and ignore your ex, we’re sorry to inform you that the courts don’t get behind that agenda. Move-aways only work if you continue to play nice.

These cases follow a fairly common, but a very complex procedural process. If you’re dealing with moving the children out of state after divorce, you’ll want to hire a family attorney experienced with move-away cases. Our office handle’s move-away cases very frequently, and we’re happy to explain the process to you. Feel free to give us a call if you have any questions.

Categories: Custody, Divorce

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