California law limits the ability of parents to move out of state with a child if they share custody with someone else. Of course, sometimes there are very good reasons for a parent to want to move. For those wondering, “Can I move out of state with my child?” the answer depends on whether a move is in the child’s best interests. In this article, we explore those considerations in detail.

Understanding the factors influencing a decision to permit or deny a parent the right to move out of state with their child often requires both practical experience and extensive legal knowledge. The Stratte Firm regularly works with parents considering a relocation who are looking to understand their options. Contact us to learn more.

Types of Custody

Child custody is divided into legal and physical custody. The type of custody a parent has impacts their right to object to another parent’s planned relocation.

Legal Custody

Under the California Family Code 3003 FAM, legal custody encompasses several rights related to the child’s life, including the right to make decisions about their:

  • Education,
  • Healthcare, and
  • General welfare.

The child’s general welfare may include, among other things, their religious or moral upbringing.

Physical Custody

Physical custody refers to a parent’s right to have the child live with them. A parent with physical custody is a custodial parent, while a parent without it is noncustodial, even if they have legal custody.

Joint vs. Sole Custody

In California, parents with “joint custody” typically share both legal and physical custody, per FAM 3002. As FAM 3080 declares, this is the arrangement for most parents. Parents can, however, share legal but not physical custody. In this scenario, one parent has “sole physical custody.”

Answering, “How far can a parent move with joint custody?” requires knowing whether you have full or joint legal custody. Because a parent with whom a child lives also necessarily has to make decisions about the child’s life, parents virtually never share physical custody without sharing legal custody. So, a parent with sole legal custody generally also has sole physical custody, as defined in FAM 3006 and 3007.

Visitation Rights

A parent without physical or legal custody may still have visitation rights, the right to see the child at specific times or in specific places, FAM 3100. Court orders sometimes limit visitation rights by requiring supervision, particularly if the parent has a history suggesting they may pose a danger to the child.

How Types of Custody Impact Relocation Rights

Parents who share joint (physical and legal) custody generally have equal rights to decide where a child lives, per FAM 7501. As a result, a parent who wants to relocate typically has to either get the other parent’s consent or convince a judge that the move is in the child’s best interests.

A parent with sole physical custody typically has more latitude to decide whether to relocate with a child than one with joint physical custody. Yet, a noncustodial parent with legal custody may have the right to object to the decision and let a court resolve whether moving is best for the child.

A parent with sole custody typically has the exclusive right to decide where the child lives. They may be entitled to move away with their child, and the other parent may not have a say in that decision. Yet, the right to move is not necessarily universal even when one parent has sole custody, particularly if the court order setting child custody specifies otherwise.

Child Custody Orders

Even when parents agree on custody, judges generally have to sign off on the terms of the agreement to ensure they are in the child’s best interests. Only a child custody agreement contained in a court order is legally enforceable.

When the court issues a child custody order, it specifies which type of custody each parent has and details their respective rights and responsibilities. Sometimes, the court also includes a provision specifying each parent’s rights related to deciding where a child lives or, based on FAM 3024, requiring a relocating parent to provide notice to the other parent 45 days before moving. So, determining whether you can move out of state with your child usually begins with consulting your custody order.

The Best Interests of the Child

In any question concerning child custody, courts make decisions based on the best interests of the child. Per FAM 3011, judges consider:

  • The child’s health, safety, and general welfare;
  • Whether a parent seeking custody has ever engaged in abusive behavior;
  • How much contact and what type of contact each parent has had with the child historically; and
  • Whether a parent regularly abuses alcohol or other substances.

These factors influence any change to child custody, including changes that must occur if a parent.

How to Get Permission to Move Out of State with a Child

No one can deny a parent the right to relocate without their child. When the parent wants to bring a child with them, the calculus changes. Getting permission to move out of state with a child varies based on the type of custody each parent has, limitations in the child custody order, and whether the other parent objects to the move. If the non-relocating parent has physical custody or your child custody order limits relocation, you typically need their consent or a court order to make the move.

Consent of the Other Parent

The simplest solution is typically to get the other parent to agree to the move, which may require negotiation. A parent who agrees to a child’s relocation may request, in exchange:

  • More time with the child during school breaks,
  • The right to take the child on vacations for certain periods, or
  • Regular phone calls or video chats with the child.

Having an experienced family lawyer to guide you through these negotiations often proves invaluable. Lawyers can also help resolve relocation matters through mediation, without getting a court involved.

Court Order

If you notify the parent that you intend to move away with the child and they object to the move, they may request that a family court intervene to decide whether to grant permission to move the child.

If the other parent objects, you will need to turn to the court system to resolve the issue. The court will consider how the move will affect the child, weighing their best interests. How the court resolves the question depends on the specific circumstances of each parent and the child.

Determining Child Custody When One Parent Moves Out of State

In the context of deciding child custody when one parent moves out of state, the judge may consider:

  • Why the parent wants to relocate,
  • The effect on the non-relocating parent’s relationship with the child,
  • The child’s ties to their current community,
  • What the child wants,
  • The benefits the move offers to the child,
  • The relationship and degree of cooperation between the parents, and
  • How far the parent wants to move.

Since the standard the judge abides by is the child’s best interests, their rulings depend on the specific facts at play.

Reasons a Judge Will Deny Relocation

Little is guaranteed in the legal world, but some factors simply do not justify a move. Reasons a judge will deny relocation include, for example:

  • The relocating parent wants to move solely to deprive the other parent of access to the child, despite the other parent playing an active role in the child’s life;
  • The relocating parent shows disdain toward maintaining the relationship between the other parent and child without good reason; or
  • The parent wants to move somewhere that is dangerous for a child.

These situations are simply not in the best interests of the child.

Reasons a Judge Might Deny Relocation

Absolutes are rare in the world of child custody. A judge may deny relocation if, for example, the non-relocating parent objects and:

  • The child would lose access to significant benefits, like education or healthcare;
  • The relocating parent does not have a good reason to move, like a job opportunity or a better living situation; or
  • The relocating parent wants to move a significant distance, and the child is too young, or another reason might prevent them from maintaining a relationship with the other parent.

Yet, a parent may still convince the judge to approve the relocation if other factors indicate the move is, on balance, in the child’s best interests.

Reasons a Judge Might Approve Relocation

Alternatively, a judge is more likely to approve a relocation if:

  • You have a plan to ensure the child maintains contact with the other parent;
  • The relocation would enable the child to access significant benefits, like education or healthcare; or
  • The non-relocating parent does not currently have frequent contact with the child.

Again, a parent may convince the judge otherwise if they convince them that other circumstances mean the move truly is not in the child’s best interests.

Moving with Children the Right Way

Ultimately, the answer to, “Can I move out of state with my child?” depends on the facts and circumstances in a given situation. If you are considering relocating, a family lawyer can provide guidance, helping you follow the law and your child custody order, and focus on why the move is in the child’s best interests.

The Stratte Firm has extensive experience with child custody and relocation. Reach out to learn more about how we can help.

Resources:

California Family Code § 3002, link.

California Family Code § 3003, link.

California Family Code § 3006, link.

California Family Code § 3007, link.

California Family Code § 3011, link.

California Family Code § 3024, link..

California Family Code § 3080, link.

California Family Code § 3100, link.

California Family Code § 7501, link.