It is an all too common dilemma of what to do when one parent wants to move away from the area they lived in. When couples with children separate, one of the parents may want to move beyond commuting distance of the other. Over the past 20 years, this area of family law has changed dramatically.

Two major cases led us to the point where we now find ourselves. The first, IRMO Burgess was decided in 1996. The California Supreme Court concluded in an initial judicial custody determination based on the "best interest" of minor children, a parent seeking to relocate does not bear the burden of establishing that the move is necessary as a condition of custody. Similarly, after a judicial custody order is in place, a custodial parent seeking to relocate bears no burden of establishing that it is necessary to do so. Instead, he or she has the 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. Essentially, the non-moving parent was required to show that the move was not in good faith, the effect of the move would be so detrimental as to mandate a change of custody, or that the custody arrangement was essentially joint physical custody.

Eight years later the landscape shifted again under IRMO LaMusga. The burden of proof changed. The full opinion is complex and made dramatic changes, but in most respects, the best interests of the children remain paramount.

Move away cases are very complex, and Moschetti Family Law is an experienced San Francisco based family law firm in these types of matters. Please feel free to contact us at (415) 399-0970 or online for more information.

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The Move-Away Dilemma

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