out-of-state Archives - Judy Burger Law

Child custody is complicated. Between physical custody, legal custody, joint custody, sole custody – it’s easy to get confused. However, doing what’s best for the children should be at the forefront of every discussion about child custody. It’s typically best for children to live near both parents, whenever practical, to maintain and foster their relationships. But what happens when it becomes necessary to relocate? Many parents struggle to decide where their children will live and whether the other parent can move the children out of state.

Before the Parenting Plan … and After

Address relocation issues in your parenting plan, if possible. Disagreements about where the children can live may be worked out with a mediator. As always, if parents are unable to agree, the court will decide where the children will live and with whom.

After a parenting plan is put in place, however, things may change. One parent may want to move children to another city or even out of state. Sometimes it is necessary to put the issue before a judge.

Courts try to make all decisions keeping the best interests of the children in mind, and relocation issues are no different. The judge may consider some of the following issues when deciding whether children can be moved out of state:

Will the move alter visitation?
Will the move hurt the relationship between the child and the parent who is not moving?
What type of custody arrangements are already in place?

The parenting plan can be changed by agreement or by court order. The form of custody granted to the parent seeking to move may influence a judge’s decisions about relocation.

The Type of Custody May Matter

Child custody generally falls into these categories:

Joint legal custody,
Sole legal custody,
Joint physical custody, and
Sole legal custody.

A parent with sole physical custody may move the children unless the other parent proves that the move will harm the children in some way. For example, Hannah wants to move her children from California to Connecticut to be closer to her family. Jonah, the children’s father, has a very close relationship with his children, and he filed a motion to stop the move. Because of that relationship and the children’s ties to the community, the judge ruled in Jonah’s favor. Hannah was free to move out of state but was not allowed to take the children.

When the parents have joint physical custody, the parent seeking to relocate must prove that the move is beneficial to the children. Let’s say Hannah and Jonah have joint legal custody. Hannah wants to move, but Jonah objects. The burden is on Hannah to prove that the move is good for the kids.

It’s Complicated. We Can Help.

Moving children out of state can be difficult. You need an advocate to help you understand your options.

Judy Burger is a California Certified Family Law Specialist, and founder of the Law Offices of Judy L. Burger. Please call our offices at 415-293-8314 to set up an appointment with one of our attorneys. We assist clients along the Northern to Central California Coast.

What Happens to Real Property Owned Outside the State in a California Divorce?

Have you ever wondered whether California judges have the right to make rulings that relate to out-of-state property? In divorces and legal separations, one of the most important aspects of the case is the division of the couple’s property. Often, in addition to owning property in the state of California, one or both of the partners own real property—generally known as land—out-of-state.

California family law judges do not have jurisdiction over real property that is located outside the state. Therefore, they cannot make orders that directly affect the property itself. However, they do have jurisdiction over the parties to the proceeding and can therefore require the parties to take certain actions or risk being held in contempt of court.

Under California law, property acquired by either party during the marriage is generally considered to be community property. You may read more about the nature of community and separate property here. Community property is subject to equitable distribution in a divorce or legal separation proceeding.

Out-of-state real property is known as quasi-community property if it is acquired in one of two ways:

By a spouse “while domiciled elsewhere which would have been community property if the spouse . . . had been domiciled” in California at the time; or
By a spouse “in exchange for” such property.

Quasi-community property is treated as community property for the purpose of equitable distribution.

If an asset is deemed to be quasi-community property, California law provides that a judge must first try to award the property to one spouse and offset its value by awarding property of equal value to the other spouse. If this cannot be done, the judge may decide to take one of the following two routes:

“Require the parties to execute conveyances . . . as are necessary”; or
Award the party who is not obtaining an interest in the property “the money value of the interest in the property” she would have received.

The value of out-of-state real property can be a significant issue in a California divorce or dissolution proceeding. If you are involved in such a proceeding and disputed property rights are involved, you want an attorney with substantial experience in Northern California who will represent you aggressively. Please contact the Law Offices of Judy L. Burger at (415) 259-6636 to learn more.