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WHAT ARE THE PENALTIES FOR MOVING CHILDREN OUT OF THE COUNTY OF RESIDENCE WHILE THE DIVORCE CASE IS STILL PROCEEDING?

California has established comprehensive family laws to ensure the safety and well-being of children, including strict rules regarding child custody and visitation schedules. These laws aim to maintain a stable relationship with both parents post-divorce. Perhaps the most challenging issue arises when one parent intends to relocate—often referred to as a "move-away"—to a different county, state, or country.

Legal Scenarios for Parental Relocation

Whether a move is permissible depends heavily on your current legal status and the existing custody orders. Here are the four most common scenarios:

1. Before Filing for Divorce

If no divorce has been filed and no formal custody agreement exists, a parent is generally free to relocate with the children. However, if the other parent objects, they must quickly seek a court order to prevent the move and establish the status quo.

2. While Divorce is Pending

Once a divorce is filed, Automatic Temporary Restraining Orders (ATROs) usually go into effect. It is against the law to take children out of state while the divorce is pending without written consent or a court order. Violating this can lead to being held in contempt of court, resulting in fines or jail time.

3. Post-Divorce: Sole vs. Shared Custody

Your rights often hinge on the specific language in your final custody agreement:

Sole Physical Custody: The custodial parent may have a "presumptive right" to change the child's residence, though this is still subject to court review if the move would prejudice the child's rights.
Shared Physical Custody: Most agreements require the moving parent to seek the other's permission. If granted, a new visitation schedule must be filed with the court to account for the distance.

4. When a Parent Objects to the Move

If the non-moving parent objects, the moving parent must petition the court. Moving without permission in this scenario can be classified as parental kidnapping. To win a move-away request, the parent must prove the move is in the "best interest of the child."

Commonly accepted reasons for relocation include:

Significant career advancement or work opportunities.
Proximity to extended family support.
Better educational opportunities for the children.
A new spouse’s mandatory relocation for work.

The Complexity of Move-Away Petitions

It is important to understand that a court will never prevent you from moving; however, they can prevent the children from moving. The court will evaluate the current time-share percentage and how the moving parent plans to maintain the child's relationship with the other parent through video calls, emails, and extended vacation visits.

If your current arrangement is a 50/50 split and the move makes that impossible, obtaining court approval becomes significantly more difficult. Because these cases are so complex, resolving the issue out of court through mediation is highly recommended.

Why Choose Mediation for Relocation?

Relying on a judge to decide your family’s fate can be unpredictable and emotionally draining. An experienced family law mediator helps families navigate the move-away process to reach an amicable agreement that considers the logistics of travel, costs of visitation, and the emotional needs of the children.

About A Fair Way Mediation

A Fair Way Mediation Center offers a relaxed, compassionate atmosphere in an informal setting that encourages a calm and objective approach. This is a safe space that avoids the stress and embarrassment that courtroom procedures can inject into any relocation dispute. All couples are welcome, including traditional or same-sex families.