ursuant to the California Family Code, the parent with physical custody of a minor child has the presumptive right to change the child’s residence. That is to say, the parent with physical custody can move away with the child and the courts will not interfere with that decision unless the move is detrimental to the child. However, this does not give a parent with sole legal and physical custody of a child an absolute right to change the child’s residence.
In an initial child custody determination, the trial court uses a best interest of the child analysis and must look to all the circumstances bearing on the child’s best interest. When the move-away contest comes after a permanent child custody order is in place, the court will apply the changed circumstances rule, meaning the noncustodial parent has the substantial burden of demonstrating a material change of circumstances of a kind that renders it essential or expedient for the welfare of the child that custody be modified. Once the noncustodial parent shows detriment to the child from the proposed relocation, the court must consider all of the relevant factors in deciding whether a change in custody would be in the child’s best interests. Among the factors for the court to consider are: the child’s interest in stability and continuity in the custodial arrangement, the distance of the move, the child’s age, the child’s relationship with both parents, the relationship between the parents, the children’s wishes if they are mature enough to make that inquiry appropriate, the reasons for the proposed move, and the extent to which the parents currently are sharing custody.
If you or someone you know is facing a similar situation or simply have questions about child custody and visitaton or any other family law issue, such as child support, our team of San Jose Family Law Attorneys are here to answer your questions and assist you through the process. We represent clients from Santa Clara County, Alameda County, Monterey County, San Mateo County, and surrounding areas. Contact our office today to schedule your free consultation to speak with one of our attorneys.