Child custody move-away cases are nerve-jangling, even for us child custody lawyers and mediators who deal with them day in and day out.  I have been on a 2-week roll involving several “move-away” cases.  These are cases where a custodial parent has decided to move with the child to another county, or even another state.  Two of these cases involved moves to Midwestern states.  Legally, in move-away cases the law is not concerned with whether it is just or fair to allow mom (in most cases it’s mom) to move; in fact, the reason for your co-parent’s move is almost irrelevant.  As long as there is some rational basis, courts often don’t question the moving parent’s motivation.  The question is usually, in light of the other parent’s decision to move, does it make sense to place the child with the moving parent or the remaining parent?

That’s a tough call.  The moving parent will normally argue that they have been the child’s primary caregiver throughout the child’s life, and that it would injure the child to sever or strain that relationship.

The “remaining parent’s” chief argument normally centers around “frequent and continuing contact” between the remaining parent and the child.  “Frequent and continuing contact” is a buzz phrase, contained in Family Code section 3020, expressing the law’s preference that the custodial parent be that parent more willing to promote frequent and continuing contact with the other parent.

Move-Away cases are among the most complex in family law, and this is by no means an exhaustive treatment of the complex case law and factors that the court considers in move-away cases.  If you are facing this situation, contact me immediately for your free initial consultation so that I can help you apply this complex and confusing law to the specific facts of your case.

That said, the difficulty of the judge’s decision in this situation is like that of Solomon when confronted with the competing claims of 2 months over one baby.  And, the judge can’t simply divide your children in two.

In a nutshell, the judge has to weigh the harm to the child of severely straining the bond between one of the parents and the child.  If the court permits the move-away (by leaving custody with the moving parent), remaining parent must figure out how to commute or otherwise have a long-distance relationship with his son or daughter.  However, if custody is changed to the remaining parent, the harm is that a long-established bond with the custodial parent will be strained.

If it’s the custodial parent that’s moving, move-away cases are hard to defend, but you can increase your chances by taking the following actions before you are ever in court:

  • Don’t focus on the other parent.  Make sure your communication with them is unemotional and limited to “just the facts.”
  • Do not try to control the other parent’s behavior—unless it is a an issue calling for Child Protective Services intervention, let it go.
  • Focus on creating your own parent-child relationship.
  • Avoid any conflict with the other parent.

For my child custody clients, this is what I refer to as “playing the long game.”  You do this when there’s no litigation pending, to improve your position if something arises.  The “long game” is the process of being patient, of letting the other parent be the crazy, high-conflict parent, of focusing your efforts not on achieving fairness, but instead on using the time you have to give your child(ren) a loving parent.

I will go into greater detail on this in future posts.  Until then, love your kids, love your kids and, oh, by the way, love your kids.

Very truly yours,

Thomas D. Ferreira, Esq.

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