CHILD CUSTODY - What constitutes a "Move Away"?
Some litigants, and judges, have a hard time with determining whether a move constitutes a "move away" in a family law proceeding. We have found that often judges are reluctant to deem a relocation as what it often is, a "move away." This often has a very serious, and negative, impact on the non-moving party.
Relocation out of state is not necessary for a relocation to be considered a move away. In re Marriage of Burgess, (1996) 13 Cal. 4th 25, 28. The court in Burgess held that a mother's move from Tehachapi, CA to Lancaster, CA, approximately forty miles away, constituted a move away, requiring court determination that such a move would not "prejudice the rights or welfare of the children." Id.
Although the best interest standard applies to move-away requests dealing at the temporary stage, said standard must be applied in the right manner. The "best interests of the children" analysis requires the court to consider the request for a move-away in a calm, dispassionate manner and ONLY after the parties have had an opportunity to be meaningfully heard. In re Marriage of Seagondollar, (2006) 139 Cal. App. 4th 1116, 1119-20.
A meaningful hearing is a critical requirement of California law before any judicial determination regarding a move-away request for parents who share joint legal and physical custody following a final judicial custody order. Id.
A party cannot move-away with children and ask questions later i.e. grant me orders to establish permanency. Parties must adhere to case law and statutory authority on this issue, namely, Cal. Code Civ. Pro. § 917.7. Any move-away order, even if denominated as "temporary" or "without prejudice," is subject to the§ 917.7 30-day automatic stay.
Andrew V. v. Super. Ct. (2015) 234 Cal. 4th 103, 109 (rejecting Mother's contention that§ 917.7 applies only to "appealable judgments and orders" and not to "interlocutory" orders made without prejudice)]. In Andrew V, the Comi of Appeal held that the 30-day stay in section 917.7 applies to all move away orders, including temporary orders. The court noted "children live in the present tense, and 'temporary' relocations may have a severe and pernicious impact on their well-being and sense of security." 234 Cal.App.4th at 109.
The procedural safeguards regarding a move-away are meant to protect the relationship between parents and children, and the enormous effect that a move-away has on custody and visitation. Consider the following fact pattern: pending a Request for Order hearing, one parent relocates with the minor children from Lancaster, CA to Seal Beach, CA. Both cities are located in Los Angeles County, notwithstanding this fact, however, they are almost 100 miles apart.
There is nothing in the holdings of Andrew V. or Seagondollar that limits the public policy principles and statutory rules solely to situations involving "post-judgment out-of-state" move away requests. The law is clear under the standards articulated within those two cases that the public policy of the state does not allow for temporary move-away orders as this drives an instability in the relationship between the parents and the children and cause serious, potentially unnecessary disruptions in the children's lives, while the move-away motion is still pending and a final custody order has yet to be determined. See In re Marriage of Seagondollar, (2006) 139 Cal. App. 4th 1116; See Andrew V. v. Super. Ct. (2015) 234 Cal. 4th 103.
Our advice, if you are facing an potential "move away" immediately consult with a Certified Family Law Specialist. Time is not on your side!
Patrick Baghdaserians, CFLS
Family Law Attorney and Expert Located in Pasadena, CA