Child Custody Move-Aways

Custody Move Away: different burdens of proof based upon custody arrangement

In California move-away child custody cases, the burden of proof—meaning who has to prove what—depends on the type of custody arrangement in place at the time of the proposed move. Here’s how it works:

If the Moving Parent Has Sole Physical Custody:

Under California Family Code § 7501, a parent with sole physical custody generally has a presumptive right to relocate with the child. In this scenario:

• The non-moving parent bears the burden to show that the proposed move would be detrimental to the child’s welfare.
• The moving parent does not need to prove that the move is in the child’s best interest unless the non-moving parent first makes a prima facie case that the move is harmful.

This was clarified in the landmark case In re Marriage of Burgess (1996) 13 Cal.4th 25, which established that courts should not automatically reevaluate custody just because one parent wants to move.

If the Parents Share Joint Physical Custody:

When parents share joint physical custody, the court does not presume that either parent has the right to move the child. In this case:

• The parent proposing the move has the burden to show that the relocation is in the child’s best interest.
• The court will conduct a de novo “best interests” analysis, essentially treating it like a new custody determination.

This principle was reinforced in In re Marriage of LaMusga (2004) 32 Cal.4th 1072, where the California Supreme Court held that even in sole custody situations, courts must still consider a wide range of factors when the move may affect the child’s relationship with the other parent.

Key “Best Interest” Factors the Court Considers:

• The child’s health, safety, and welfare
• The child’s relationship with both parents
• The reasons for the proposed move
• The distance of the move and its impact on visitation
• The age and needs of the child
• The ability of each parent to support the child’s relationship with the other parent
• The child’s preference (if of sufficient age and maturity)

Summary:

If you’re facing a move-away case, it’s critical to present a well-documented case showing how the proposed relocation will serve your child’s emotional, educational, and developmental needs—and why it’s consistent with maintaining strong relationships with both parents when possible