California Child Custody Laws
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How the Move Away Game is Played!
© Robert Kroll,  February 12, 2004

Can I Stop A Child's Parent from Moving?

Can I Move Away Without Going to Court?

When the dust settles after a dissolution of a marriage, or the relationship breakup of two unmarried parents, one parent usually has “primary physical custody” or “physical custody” while the other parent has “joint legal custody.” Those terms have little practical meaning or importance in the real world of parenting until the parent with custody makes the tormenting decision to move some distance away from the non-custodial parent. Under California child custody law, and in particular, a 1996 California Supreme Court custody decision, the terms “primary physical custody” take on monumental importance to the families involved in relocating, for example, to another state or country .

Take the case of Alice, a teacher, and Ralph, a carpenter, and their eight-year-old daughter Jennifer, who live in Oakland, California. Jennifer lives with Alice and visits her dad every other weekend, every Wednesday evening, three weeks during the summer, and on most holidays. A year after the divorce was final, Alice decided that she’d rather live in Miami, FL near her sister and parents. Ralph hears of the plans and is distraught. He will not be able to visit Jennifer on the current schedule if she’s 3000 miles away in Florida. He urges Alice to reconsider, but she’s adamant about moving. He decides he must try to stop the move by going to court and asking the judge to block the move. What would the family court do?

Marriage of Burgess: a tough hurdle for the Non-Custodial Parent

Unfortunately for Ralph, he hasn’t a prayer. Under the landmark Supreme Court decision in Marriage of Paul and Wendy Burgess, the high court placed the legal burden on the non-custodial parent to prove the move would be detrimental to the child. The moving parent only needs to state a good reason for the move: such as to improve her financial situation, to take a better job, or to return to school, or family. Wouldn’t the great distance involved be enough to prove that the move would be harmful to Jennifer? The answer is: "probably not". Children move across country daily without suffering lasting harm or “detriment” in the legal sense. Alice’s decision to move to be closer to her family, and their support, is likely to be considered a reasonable basis for the move.

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The Arguments Against a Move:

What could Ralph argue to successfully block the move? He would have to show: 1) that Jennifer would suffer severe emotional harm either from leaving her present home or being so far from her dad; or 2) that Jennifer would be placed in a situation fraught with the potential for physical or emotional harm; or 3) that Jennifer would be taken from a great school and placed in an extremely poor one, affecting her future educational prospects; or 4) that Alice’s decision to move was really a pretext to take Jennifer from her dad and make it practically impossible for them to have any meaningful relationship. There are other arguments Ralph could make. But these cover the areas that the courts normally consider in move away cases.

Sometimes, the courts, or the families, decide to have a psychological evaluation of the effect of the move on the child or children. These evaluations involve psychological testing, interviewing of the parents and the child, observations of the parents, and of the parents with the child. Typically they take a couple of months to complete and cost about $4000 or $5000, plus attorney’s fees to set them up and to advocate for or against the recommendations that result from the evaluation process. But, they are not required in the move away situation. A judge can, and often does, make a decision based upon testimony of the parties. There was no evaluation in the Burgess case, where the mother moved 40 miles from Tehachapi to Lancaster, California.

    Emotional Harm?

Ralph could attempt to prove that Jennifer was so involved with him that she would suffer severe anxiety, depression, sleep disorders, eating disorders, or some such psychological maladies. To prove that, a psychologist would be required. Jennifer most certainly would NOT be allowed or expected to testify about her wishes or fears relating to the move. She would be viewed as too young to be brought into the middle of this contest of parental wills. And a psychologist employed solely by Ralph could be viewed with suspicion by the court, if not downright contempt. Psychologists are not known for being great predictors of future mental illness or emotional harm. Their testimony in this area is generally deemed to be too speculative to be trustworthy.

Physical Harm?

Ralph could attempt to prove that Jennifer would be moving into a dangerous neighborhood of degenerates, criminals, delinquents, or molesters. Of course, he would have to investigate the neighborhood in question and testify from his or his investigator's personal observations. Written materials about the neighborhood would not likely be specific enough, and are considered improper “hearsay” in any court of law. Alice would be expected to contradict the testimony with evidence that the observations are in error, exaggerated, or just "dead wrong". She could also testify that she would adequately shield her daughter from any apparent danger to her. This approach would be an uphill row for Ralph.

Educational Harm:

If Ralph knew which school Jennifer would be attending in Miami, FL, he could investigate it and testify as to what he had learned about it. For example, if Jennifer was a budding and dedicated violinist and the school had no orchestra, or if the school ranked low in statewide or national standardized testing, Ralph would have the beginnings of an argument against the move. Of course, he would have to show that Jennifer is presently in a much better educational program in Oakland public schools. That, too, would be difficult.

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Alienate Daughter from her Father

Ralph could argue that Alice’s true motive for the move was to place an insurmountable obstacle in the path of his  contacts with Jennifer. He could attempt to show that Alice was already interfering in his visits with their daughter or threatening to do so. Maybe he could present correspondence between himself and Alice in which she says she wanted to remove Ralph from Jennifer’s life. Perhaps there are neutral witnesses to such a plot on Alice’s part. “Neutral” in this situation would usually mean people who are friends or relations to the parties. A teacher, a pastor, a counselor, or a neighbor might fit the bill. However, such people rarely if ever have been witness to the kind of activity that Ralph would need to show a judge to convince her that Alice was mean-spirited, jealous, conniving, vindictive, or selfish in her quest to move away. The burden is on Ralph, not on Alice. She does not have to prove the purity of her motives. He has to prove their impure nature. A difficult, but not impossible task.

Putting the Case Together

Because the burden is on Ralph, the probability is he would not win. His probability of success, of course, goes to nearly 100% if he can build a good case based on 1) clear evidence; 2) informed and well prepared eye witnesses; 3) credible expert witnesses; 4) credible physical evidence such as audio tape, photographs, videotapes, reports, correspondence, emails, letters or notes, etc. These things are rarely found in move away cases. Putting together an effective case is extremely difficult, time-consuming, emotionally and financially draining.

The Final Result:

The likely outcome of such a court battle over whether a custodial parent should move away would, in the end, depend on the particular predilections, prejudices, views, and disposition of the judge in the case. There are judges would generally oppose move aways because they believe that distance alone is injurious to the child’s development and sense of worth. And there are judges who have a strong appreciation for the notion that people sometimes need to leave an area and move elsewhere and should not be barred from doing so by the judicial system. There is a constitutional right to travel within the United States. That is weighed against the rights of parents and children to a stable, happy upbringing. It is easy for some judges to weigh these competing values and the evidence presented and reach a judgment. Most judges seem to find these move away cases extremely difficult to decide.