Relocation Cases Part 2:
Relocation cases are some of the most heavily contested and complicated child custody disputes that come into our California family law firm. In this blog series, I’m going to break down the most common client questions and how they line up with what the court needs to consider in a relocation case.
Having determined that you have a contested relocation case (see Part 1), the next question I often hear is:
“Why can’t I just move? My ex hardly has any parenting time as it is.”
The answer to this question is complicated because there is a legal argument to be made for the presumptive right to move away. But, there is also the reality that a court will rarely grant a parent that presumptive right to move away without a thorough hearing.
Family Code §7501 allows the parent with “primary physical custody,” the right to relocate with the child with agreement or court order. The term “primary physical custody,” is key though. Typically this term is used to reference the parent who has a significant amount of custodial time. But the term is not clearly defined, which leaves it open for argument. With case law granting significant discretion to the court in relocation cases, even a parent with significant parenting time will likely be forced to have a full court hearing to determine if the relocation should take place.
Even if a Mother has custody all but alternate weekends, the court can still consider this to be a shared parenting arrangement such that Father would have a full right to contest any proposed relocation by Mother. If the court did determine that Mother had “primary physical custody,” the court has still been granted significant discretion to set a contested hearing on whether or not the proposed move would cause harm to the children by itself.
This is why, even in cases with a very uneven parenting plan, a proposed relocation is not a guarantee for the primary custodial parent. It is important to be prepared for all of the considerations the court weighs in relocation cases and not simply rely on having more parenting time as a basis for relocation to be granted.
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