June 5, 2007 By Wallin & Klarich

In today’s society, it is becoming ever more common that children are raised by parents who live separate and apart. Add to that the drastically rising cost of living in many Southern California areas and you are left with many parents who want to move to another area and take their child or children with them against the will of the other parent. This type of case in Family Law has now come to be known as a “move away” case.

What follows is a brief summary of the state of “move away” law and what we can do to help you if you and your family are in the midst of such a case.

Ordinarily when one parent has sole custody of a child and wants to move, the burden is on the party objecting to the move to show the Court that such a move would be detrimental to the child, a fairly difficult thing to do and given that the party who wants to move in those cases can usually get Court approval.

The situation is very different however when the parties share joint physical custody (who the child primarily lives with) and joint legal custody (who makes the important decisions for the child).

A recent Orange County case [Niko v. Foreman, 144 CA 4th 344 (2006)] has clarified the situation for the moment stating that in the event the parties share joint physical and legal custody the Court must review the situation de novo (meaning from scratch – reviewing all of the prior evidence before the Court and making a new determination). In the Niko case the parties’ shared joint legal and physical custody of their child with a near equal time share and the mother wanted to move to Colorado against father’s wishes. The Court determined that in light of all of the facts before them and using the ‘de novo’ standard of review instead of the usual ‘changed circumstances’ rule (keep your eyes out for an upcoming blog on ‘the changed circumstances rule’!) allowing a move to Colorado and a reduction in visitation for the father was appropriate.

This is a very important decision in that it gives broad power to the Court to change the visitation and custody situation dramatically and as such gives attorneys more to work with in the trial courts.

If you have joint legal and physical custody and want to ‘move away’ it is imperative that you handle the case with great care with so much on the line. The Court will still take into consideration the ‘best interest of the child’, however they now do so from a relatively clean slate.

If you are faced with a “move away” case be aware that these cases can be very difficult to handle regardless of what your situation is. Should you have the need for our help with such a case, contact us immediately so that we can help.

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