How to Divorce in California & Leave the State With Children
By Wayne Thomas
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A divorce represents an opportunity for spouses to move on. Often, this results in relocation to another town or state. However, if the couple has minor children that will be affected by the move, California courts are tasked with balancing the rights of parents to live where they desire against the welfare of the children in making custody determinations.
Upon the filing of divorce paperwork in California, an automatic restraining order comes into effect for parents of minor children. The restraining order applies throughout the duration of the divorce and prohibits either parent from removing a child from the state without permission of the other parent or a court order. If a parent wishes to move, he must provide at least 45 days notice to the other parent. If the other parent objects to the move, the relocating spouse must file a motion with the court and obtain permission from the judge.
Right to Move
Courts in California have tended to favor the rights of parents to move. This preference was recently written into law by passage of SB 156 in 2012. Today, while a parent is required to show that a move would be in the best interests of the child, there is no need to prove that the move is "necessary" to meet the child's needs. Instead, the move can be based on convenience so long as certain factors impacting the child are taken into account. These include the distance of the move, the age of the child and the parent's ability to communicate and cooperate. Frequent and continuing contact with both parents is an important consideration, but may be outweighed by evidence that the move would benefit the health, safety or welfare of the child.
A parent's desire to move may be in conflict with the welfare of the child. In these cases, the decision to relocate before a permanent custody order has been issued could result in sole custody being awarded to the other parent. This applies even in cases where the moving parent has been the primary caretaker leading up to and during the divorce. It is not necessary for the noncustodial parent to prove that the move itself would be detrimental to the child. Instead, the noncustodial parent could prove that he is in a better position to care for the child. This could include evidence that the move is being considered solely to limit the non-moving parents parent-child contact.
If a parent wishes to relocate and a permanent order is presently in place, the custody arrangement will generally not be disturbed. For the noncustodial parent to obtain a modification, he must convince the court that the move represents a change in circumstances that renders the current arrangement detrimental to the child's welfare. Meeting this requirement can be more difficult than providing evidence for an initial custody determination, which takes into account all of the circumstances between the parties and not just the effect of the move. The noncustodial parent must show that changing custody is "essential or expedient" to the welfare of the child. An example might be evidence that the move would hurt the child's current access to quality health care or education.
- Official California Legislative Information: California Family Code Section 233
- American Bar Association: Divorce Litigation: Relocation of the Custodial Parent: A State-By-State Survey, p. 92-93
- In re Marriage of Burgess, 13 Cal.4th 25 (1996)
- Ragghanti v. Reyes: 20 Cal.Rptr.3d 522 (2004)
- Official California Legislative Information: California Family Code Section 7501
Wayne Thomas earned his J.D. from Penn State University and has been practicing law since 2008. He has experience writing about environmental topics, music and health, as well as legal issues. Since 2011, Thomas has also served as a contributing editor for the "Vermont Environmental Monitor."