If you are contemplating divorce and you have minor children with your spouse, your case will be different than a person who does not have children. If you decide to file for divorce, or if your spouse files, you will have a lot to think about in regards to the children.
Who will the children live with most of the time? Who will pay child support? If the children end up living with you, can you move away to another county or state if you so choose?
For the purposes of this post, we are going to address move away situations in California. If divorce is on the horizon and you're already thinking that you might want to move with the children to be closer to your family, or for a new job, or just to be in a new environment, you will want to know how the law deals with move away cases.
Can parents move away with children?
Generally, if a parent has been awarded sole physical custody, also known as "primary physical custody," then he or she can move away with their children if they please, unless the other parent can prove that the move would be harmful to the children.
On the other hand, if the parents have joint physical custody and one of the parents is against the child moving, the parent who wants to move away must show the court that it's in the child's best interests.
What are the current circumstances?
Please note that while your parenting plan may say that you have "sole" or "joint" physical custody of your children, if there is a dispute about a move, the courts are going to take a close look at the actual parenting schedule, rather than what it says in the agreement.
For instance, two parents may have been awarded joint physical custody, but in reality, the children are spending about 25 days a month at their father's house. If the mother was living in San Diego and she was trying to move back home to Dallas, Texas with the children to be closer to her family, the court may not let her since the children have been spending most of the time with their father.
Going Back to Court
Are you hoping to move away with your children to another county or state? Or, is your ex planning such a move and you wish to contest it? In either case, you should speak with an attorney about your rights.
If you are getting a divorce and you're worried that your spouse will try to move away with your children, be sure that your lawyer creates a parenting plan that protects your rights in the event your spouse tries to move with your children.
If you are the one trying to move and you are already divorced, you should not take your children out of the county or state without carefully reviewing your parenting plan first. Usually, the other parent's permission is required before one can travel or move out of state with their children.
If you need legal advice regarding a move away case in San Diego, contact the child custody attorneys at Claery & Green, LLP for a free case evaluation!