There are many cases where after a divorce, one of the spouses wants to move away with the children. It may be the case where they moved to the area to get married, and now that the marriage is over, they want to move back home. It could also be the case where the person wants to start a new life in a new town.
When children are involved in a divorce, the laws regarding moving with the children out-of-state are complex. In a state such as California, even a move within the state can be a move of several hundred miles away.
If the court grants sole physical custody to one of the parents, then moving with the children is usually not an issue, unless the other parent can prove that the move will be harmful to the children in some way.
If the court grants joint physical custody, then moving may become an issue. If one of the parents wants to move with the children, they must demonstrate to the courts that the move is in the best interest of the children.
If you are planning or even considering a move out-of-state or out of the region after your divorce, then you need to discuss this possibility with us before the development of a parenting plan. The Parenting plan will take in to account the desire of one of the spouses to move out of the area. However, so is the actual parenting schedule. When the court is reviewing the request to allow the move, they take the parenting schedule into account. The decision will include any additional time a parent has with the children through an informal agreement regardless of what the parenting schedule says.
If the move is allowed, that does not mean that the other parent does not get the necessary parenting time. The move and new location are now taken into account when it comes to the joint-custodial parent or even the non-custodial parent. The court will ensure that the parent will get their share of quality parenting time.
To provide continuity between states, all 50 states and the District of Columbia have adopted the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA). This law sets the standards for when a court may make a custody decision regarding a child currently living in another state as well as when the court is obligated to accept the judgment of another state regarding a child presently living in California.
These guidelines come down to these four criteria:
The state is the child’s “home” state. “Home State” means the child has lived in the state for the last six months, or was living in the state but is not there because a parent took the child or kept him or her out of the state.
The child has significant connections with people in the state, such as teachers, doctors, and grandparents. There is proof that the child’s care, protection, training, and personal relationships are based there.
The child is in the state, and either has been abandoned or is in danger of being abused or neglected if sent back to the other state.
No other state can meet one of the three tests listed above, or a state can achieve at least 1 of the criteria but has declined to make a custody decision.
The UCCJEA also specifies that only one state may decide custody. The UCCJEA avoids a situation where a parent attempts to get the case heard in another jurisdiction if they do not receive the ruling they wanted in the original jurisdiction. Another state cannot modify the initial custody order.
If you are in the process of a divorce and you think you may want to move out of state after the divorce, you need to speak with an attorney that is well versed in the laws regarding custody and “Move away” situations.
Tracy Duell-Cazes is certified by the State Bar of California Board of Legal Specialization as a specialist in all areas of Family Law. With this certification, and over 30 years of experience you know you are receiving the highest quality advice and representation. Call the Law Offices of Tracy Duell-Cazes, known as TDC Family Law for your consultation.
1530 The Alameda, Suite 108
San Jose, CA 95126
TDC Family Law serves the entire state of California for Contempt of Court and Private Settlement Judge & Mediation
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