How Do California Courts Evaluate Requests to Move Out of the Area?

How Do California Courts Evaluate Requests to Move Out of the Area?Divorced parents often worry about whether they are allowed to move out of the area if they have custody of their children. Fortunately, the California Legislature has a consistent focus on the “best interests of the child,” which permeates all aspects of family law in our state.

Section 7501
of the California Family Code very clearly states that a custodial parent “has the right to change the residence of the child.” The only counterbalance to this, by law, is that a court may “restrain a removal that would prejudice the rights or welfare of the child.”

The right of the custodial parent was not always this clear. In 1996, the California Supreme Court considered whether a custodial parent had to prove that her relocation was “necessary” in order to move away from the area.

In that case, Burgess v. Burgess, the parents agreed at a mediation that the mother would have sole physical custody of the child and that they would share joint legal custody, both on a temporary basis. Their agreement specifically provided for visitation if the mother left the county.

At a hearing several months later, the mother revealed that she was planning to move to a city 40 miles away as the result of a job transfer. Later that year, the court entered an order approving the mother’s move and granting the father enhanced visitation rights.

The first appellate court reversed this order, finding that the mother had failed to show that her move was necessary, instead only showing that it was more convenient for her to move out of the area.

The mother appealed to the California Supreme Court, which ruled in her favor. The state’s high court found that the custodial parent, the mother, was not legally required to prove that her move was necessary. Rather, under the applicable law, Section 7501, she had a presumptive right to move her children. No showing had been made that the move was not in the best interests of the children. Rather, the move would benefit the time she was able to spend with them as their primary caretaker, and their father would still be able to visit with them regularly.

After the Burgess case, the California Legislature specifically added to the law on residence changes that its intention was to declare the ruling in Burgess “to be the public policy and law of this state.”

The attorneys at The Law Offices of Judy L. Burger have extensive experience in family law, including requests of the custodial parent to move out of the area. Make the call today to learn how our attorneys can help you protect the best interests of your child: (415) 298-8314.