Timothy Patrick Peabody Child Custody Law Blog on Lawyers.com

OBTAINING MOVE AWAY ORDERS IN ORANGE COUNTY DIVORCE CASES

One of the most complicated matters relating to Orange County divorce and custody cases is the proposition that one parent may move away from Orange County in order to pursue a lifestyle or employment change.

Obviously, this type of move away requires the children from being displaced from the other parent-typically, the non-custodial parent.   With this type of separation in mind, the court is required to make some lengthy and well informed decisions with respect to the best interests of the children involved in the post-divorce or post-separation setting.

Typically, the court will require that the parties agree to retain an expert witness to investigate the circumstances surrounding the move as well as the effect upon the children.  These experts are typically designated pursuant to California Evidence Code Section 730. Reports generated by these expert witnesses and their subsequent testimony are frequently relied upon by family law judges who seek the opinions of third parties prior to making any assessments of the benefit/detriment the proposed move would have on the children. 

Some of the factors the court will consider in determining whether to modify custody include:

• The age of the child
• The child's relationship with both parents
• The parents' relationship with each other
• Detrimental effect the move will have on the children
• The purpose of the move
• The current child visitation orders in place

Move-away laws in California are constantly changing with greater input from counselors and psychotherapists and other forensic experts hired for purposes of the 730 Custody Evaluations referenced above.

• In In Re Marriage of Burgess, the California Supreme Court declared that custodial parents seeking to relocate with their children do not have the burden of proving that the move was "necessary." Following the 1996 decision, the California legislature made the Burgess opinion the law by codifying it in Family Code §7501. This change in the law ushered in a period in California of very few limits on the ability of custodial parents to move with their children.
• In the 2004 decision in In Re Marriage of LaMusaga, the California Supreme Court imposed a limit on the ability of custodial parents to move with their children. In the LaMusaga opinion, the court stated that non-custodial parents could seek a change in custody when the custodial parent decided to relocate with the child if they could show the move was a detriment to the child.

For further discussion regarding this complicated area of the law, contact

Timothy P. Peabody at the Peabody Law Firm, 949 200 4610

also, www.thepeabodylawfirm.com