Relocation of Minor Child – Test for the LaMusga Factors Weighed by California Courts
Imagine this: your family law case is done. You have your child custody and visitation order that you may or may not particularly like; but you can still sigh in relief, because the custody battle is over and you can finally move on from this litigation nightmare.
Just as you start to relax, regroup, and acclimate to your custodial timeshare with your child; a process server shows up at your door and hands you a packet of court documents. You hold up the packet and immediately recognize your family court case number on the front page just before you read words that will thrust you back into the throws of litigation for the next year: Request for Order re Move Away.
La Musga Factors in California Move-Away Disputes
Move-away requests based on the LaMusga factors, or requests to relocate with a minor child, can be highly emotional, contentious, and exhaustively litigated. This is no surprise considering both parents are facing the possibility of a substantially reduced physical presence in their child’s life.
Knowing what LaMusga factors the family court will consider in deciding whether to modify a custody order based on a custodial parent’s proposal to change the residence of the parties’ minor child can help parents to temper their emotions and perhaps even work towards a compromise with their co-parent.
Among the factors that the court ordinarily should consider when deciding whether to modify a custody order in light of the custodial parent’s proposal to change the residence of the child are the following: the children’s interest in stability and continuity in the custodial arrangement; the distance of the move; the age of the children; the children’s relationship with both parents; the relationship between the parents including, but not limited to, their ability to communicate and cooperate effectively and their willingness to put the interests of the children above their individual interests; the wishes of the children if they are mature enough for such an inquiry to be appropriate; the reasons for the proposed move; and the extent to which the parents currently are sharing custody. Marriage of LaMusga (2004) 32 Cal. 4th 1072, 1101
LaMusga Factor Checklist for Parents Seeking to Relocate with Minor Children or Prevent Relocation of Minor Children
The LaMusga Court provided California family judges with a roadmap for deciding whether to modify a custody order in light of a parent’s proposal to change the residence of the child. The following is a checklist of the LaMusga factors family courts will consider:
- The Child’s Interest in Stability and Continuity in the Custodial Arrangement. In other words, the court will look at the current custodial schedule and how much the move would disrupt it.
- A Significant Change in Circumstances. If the non-custodial parent is seeking to prevent the child from relocating with the custodial, relocating parent, there must be a significant change in circumstance such that a custody change would be in the best interest of the child. The change must be so substantial that it overcomes a custodial parent’s presumptive right to relocate pursuant to Marriage of Burgess (1996) 13 Cal. 4th 25, 37-38 and Family Code 7501.
- The Distance of the Move. How far are we talking? What will the travel time be for visitation? Who will pay for travel costs and how much will they be?
- The Age of the Child. Younger children are still forming bonds with their caregivers and have different developmental needs than older children. On the other hand, older children generally have established bonds that may be able to withstand longer absences.
- The Social Impact of the Move on the Child. The court will consider the impact of removing the child from his or her established social circles, community, and friendships.
- The Impact on the Child’s Education. Removing a child from school in the middle of the school year or proposing to move a high school junior across the country may not be best for the child’s education, and the court will consider these kinds of issues in its analysis of the situation.
- The Child’s Relationship with Both Parents. How bonded is the child to each parent? Would extended periods away from one of the parents be detrimental to the child?
- The Relationship Between Parents. This includes their ability to communicate and cooperate effectively, and their willingness to put the interests of the child above their individual interests. The court will look at how likely the moving parent is to be supportive of the relationship between the non-moving parent and the child. Chances are, if parents can’t co-parent from 2 miles apart, 2,000 more miles won’t solve the problem.
- The Wishes of the Child. The court will consider the wishes of the child if he or she is mature enough for such an inquiry to be appropriate.
- The Reason for the Move. Is there a legitimate job offer or is the custodial parent just looking to get away from the non-custodial parent?
- The Extent to Which the Parents are Currently Sharing Custody. Changing a child’s routine from week on/week off to only seeing the non-custodial parent for two weeks over Summer Break is less likely to be in a child’s best interest than going from, for example, alternating weekends to two months during Summer Break, and a couple of weeks over Winter Break).
Family Code 7501- Child Custody Relocation & Move-Away Laws
The rights of each parent in move-away situations depend on the current custody arrangement. A parent cannot simply move a child out of town or out of state without jumping through some legal hoops. If a child custody order is in effect, the moving parent must notify the other parent that they intend to move, and oftentimes, they must often bring a request to modify the child custody and visitation order to court. The non-custodial parent then has a right to contest the request of the custodial parent to move.
A parent with sole physical custody of a child has the presumptive right to change the child’s residence, subject to the court’s ability to prevent a relocation that would “prejudice the rights or welfare” of the child, pursuant to Family Code 7501, which states:
(a) A parent entitled to the custody of a child has a right to change the residence of the child, subject to the power of the court to restrain a removal that would prejudice the rights or welfare of the child.
(b) It is the intent of the Legislature to affirm the decision in In re Marriage of Burgess (1996) 13 Cal.4th 25, and to declare that ruling to be the public policy and law of this state.
Moreover, under California child custody law the custodial parent does not have to show that the move is “necessary,” assuming the parent is moving in good faith. (See Marriage of Burgess (1996) 13 Cal.4th 25).
The non-custodial parent can challenge the relocation by requesting a custody modification based on a showing of changed circumstances and detriment to the child. As discussed in Burgess, the non-custodial parent must show a substantial change in circumstances rendering it “essential or expedient for the welfare of the children” that there be a custody change.
Family courts are given the widest discretion to fashion orders and make determinations under these circumstances because each case is unique and these orders determine where, and with whom, minor children will live based on the La Musga factors. For this reason it is important to find the best custody lawyer for your move-away case.
Move-aways are generally “all or nothing” matters, since there is very little middle ground when one parent proposes to move the child and the other parent is requesting the opposite. For this reason, move-away cases typically proceed to trial and/or a custody evaluation pursuant to Evidence Code section 730. If you are requesting or opposing a move-away, it is important to contact a skilled California custody lawyer, experienced in move-away cases.
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