I Want to Move Back Home ̶ can I Take My Children With Me?

• Citation: Vol. 22 No. 2
• Publication year: 2016
• Author: By Richard Ian Ross, Esq., CFLS

I Want to Move Back Home - Can I Take My Children With Me?

By Richard Ian Ross, Esq., CFLS

Richard Ian Ross, Esq., CFLS, is the Managing Attorney and Certified Family Law Specialist at Richard Ross Associates ("RRA"), a Family Law Professional Corporation in Westlake Village, California. RRA is a five attorney law firm which practices exclusively family law, with a specialization in divorce, parentage, spousal and child support, child custody and visitation, complex property division, restraining orders and modifications to family law judgments. Attorneys at RRA practice primarily in Ventura and Los Angeles counties.

Oftentimes while the parents of minor children are married, or during or after a divorce, or in a parentage matter (unmarried parents), a parent wants to relocate, perhaps back home close to his or her family. With regard to one parent seeking to move the minor children from their home, the term is coined "move-aways," which are always difficult cases.

When one parent is faced with the prospect of his or her children no longer living close by, it generates many emotions, often negative. Emotional-based arguments, such as the parties should alternate custodial time evenly to give the other parent sufficient options to demonstrate their parenting abilities, are not enough to convince the family courts to order their custodial plan.

In the recent court case, Jane J. v. Superior Court (Christopher J.),¹ the court held that the parent seeking to move the children has the burden to address the potential disruptive impact of an out-of-state move-away, including its effect on the children's existing educational, physical, emotional and familial relationships. The court went on to state, "It is not enough to argue that it is time to switch sides to give the other parent the opportunity to take control".² Rather, the court admonished the trial court to consider the factors In re Marriage of LaMusga,³ discussed below, when ordering the move-away.

When a parent seeks permission to move away with the children, the non-custodial parent often fights it by requesting relief from the court to change primary physical custody to the non-moving parent. The California Supreme Court has held that just as a custodial parent does not have to show that a planned move is 'necessary,' neither does the noncustodial parent have to show that a change of custody is 'essential.' In the notable case concerning move-aways, In re Marriage of LaMusga, the mother sought to move the...