WHAT ARE THE PENALTIES FOR MOVING CHILDREN OUT OF THE COUNTY OF RESIDENCE WHILE THE DIVORCE CASE IS STILL PROCEEDING?

California has many family laws in place to ensure the safety and well-being of the children, as well as rules regarding the establishment of child custody and visitation schedules to maintain an ongoing relationship with both parents after the divorce. Every parent who lives separately from the children’s other parent and is co-parenting needs to work through these numerous and complex legal issues or face possible penalties, such as fines or jail time. Perhaps the most difficult issue of all is when one of the parents wants to relocate to a different California county or to a different state, or even to a different country. Depending on how far parents are into the divorce process and how much custody they have, the move-away may be easier or harder to accomplish:

Distance and Custody

1) If the moving parent has not yet filed for divorce and there is no child custody agreement in place, they usually are free to relocate with the children, unless the other parent objects. In that case, the objecting parent has to seek a court order to prevent the children from moving.

2) If the other parent files for divorce first, this can make it extremely difficult for the parent who wants to move with the children to relocate before a final child custody agreement is in place. That is because it is against the law to take the children out of state while the divorce is pending. The moving parent risks being held in contempt of court, which can result in fines, jail time, or both.

3) If the parent was never married to the children’s other parent, or if the parents are already legally divorced, one parent may be allowed to move the children out of the county or out of state if they have been assigned “sole” physical custody. It is important to read the final custody agreement and find any clause related to move-aways. If the custody arrangement calls for “shared” physical custody (even if the moving parent has the children with them the majority of the time), it will usually include a clause stating that the moving parent must seek the other parent’s permission to leave with the children. If permission is obtained, a new custody agreement and visitation schedule is filed with the court.

4) If the moving parent has to seek permission from the other parent to move with the children and that parent objects to the move, then the moving parent needs to petition the court to seek permission to leave despite the other parent’s objections before they can take the children with them. Changing the children’s residence to another state without the other parent’s permission or the court’s approval is considered a violation of the custody order, and this can be seen as parental kidnapping, which is considered a serious crime. If the moving parent has to request permission from the court to move the children, they will have to convince the court that it is in the best interest of the children to move with them instead of staying where they are and go live with the other parent. Moving for better work opportunities, better schools, a better neighborhood, or because their new spouse has to relocate for work are all good reasons for a move away. It is very important to show the court how the moving parent will maintain the children’s relationship with the other parent by using regular phone calls, video calls, emails, and vacation visits. The court will also consider the current share of the time each parent is allocated and how each parent is exercising their time with the children. The higher percentage of time the moving parent has with the children, the easier it will be to get approval from the court. If the current allotment of time is 50/50 and the moving parent cannot preserve this arrangement after the move, the judge may object to the move.

Complexity of California Laws

California family laws regarding move-aways are very complex and can change over time as new case rulings take place. It is important to remember that the court will never prevent a parent from moving to another county, state or country. That parent is free to go and the court cannot restrict his/her moves. However, the residence of the children has to be agreed upon and the children are often not free to move with either parent without the other parent’s or the court’s permission. Because move-away cases are so complex and can cause a lot of stress for parents and children, it is highly recommended for parents to seek resolution out of court to save a lot of time, money and emotional pain. After all, most families would prefer to make this type of decision on their own, rather than rely on a stranger to decide their family’s fate for them. An experienced family law mediator will be able to guide families through this move-away process and reach an amicable agreement that will take all members of the family into account.

About A Fair Way Mediation

A Fair Way Mediation Center offers a relaxed, compassionate atmosphere in an informal setting that encourages a calm and objective approach. This is a safe space that avoids the stress and embarrassment that courtroom procedures can inject into any divorce or separation. All couples are welcome, including traditional or same sex families.

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