International Move Away Child Custody Cases in Orange County, California
International move away cases can be a complex area of family law as it is not a common request and involves a significant analysis into factors that are not considered in a standard domestic move away. The intricacies involved and the additional factors to be considered make it a specialized area of family law that requires in-depth understanding and care. Not many family law attorneys are well-versed in this area of family law, but our divorce and custody family law firm in Irvine has handled these cases. While a standard move away case involves a move within the United States, an international move away is one involving a move from the United States to a completely different country.
“Joint Physical Custody” v. “Sole Physical Custody” Affecting the Analysis of a Move Away Request
The court’s analysis of how to proceed with a move away request depends on the custodial arrangement at the time when the request for a move away is made.
If the parents have joint physical custody, then the court must determine what arrangement for primary custody is in child’s best interest. This is also known as a de novo analysis. Joint physical custody does not require a specific arrangement to be joint custody such as “50/50” or “60/40”. There is no numerical value to determine what constitutes “joint” custody. The court has defined joint physical custody to be a “significant” period of time. The parties’ current custodial orders might explicitly state whether the parties have joint physical custody or not, which can be evidence that there is “joint” custody or not.
If one of the parents has sole physical custody, then he/she has a presumptive right to move and does not need to demonstrate that the move is necessary. Instead, the non-custodial parent must show that the proposed move would cause detriment to the child, requiring the Court to re-evaluate the existing order. This law is set forth in the seminal case of Marriage of LaMusga (2004) 32 C.4th 1072, following the Burgess case and also enacted into law by Family Code 7501.
Domestic Move Away v. International Move Away
A domestic move away is a relocation of the children’s residency to another locale (county or state) within the United States.
The analysis of a “domestic” move away request involves an analysis of the following 9 factors:
- The child(ren)’s interest in stability and continuity in the custodial arrangement
- The courts look to such aspects as who is the primary caregiver; whether there is a relationship between extended family who may be living with one of the parents; who provides the healthy, stable, and loving home; who provides structure, guidance and support to the child(ren); with whom results in better academics and the academic quality of the school to which the child(ren) will be enrolled after the move; and the strength of the child(ren)’s bond with each parent.
- The distance of the move
- The physical distance between the child(ren)’s current home and the proposed move location is significant as the distance impacts the visitation capability of the “visiting” parent.
- The age of the child(ren)
- Age plays a significant factor as the older a child(ren) become, the more assimilated the child(ren) become with United States’ customs and the more stable the child(ren) become in the United States. With this in mind, this factor would weigh against the move the more and more the child grows with age. If the child is of a very young age, the less established the child(ren) have become in their current city/county which leads to this factor weighing more and more in favor of the move.
- The child(ren)’s relationship with both parents
- The courts will look to the strength of the bond and relationship between the child(ren) and both parents.
- The relationship between the parents including, but not limited to, their ability to communicate and cooperate effectively
- As it is always in the child(ren)’s best interests to maintain a relationship with both biological parents, the courts will look to which parent would be the likelier of the two to facilitate communication between the children and the other parent. If a move away were to be granted, communication keeps the relationship strong between the child(ren) and the noncustodial parent during times when the children and the noncustodial parent are separated by a significant distance and are unable to physically visit with each other.
- The willingness to put the child(ren)’s interests above the parent’s interests
- While many parents say that the child(ren)’s best interests are to be with a particular parent, the child(ren)’s best interests may not necessarily be facilitated by doing so. There must be good reasons that justify the move which in fact benefit the child(ren).
- The child(ren)’s wishes if the child(ren) are mature enough for such an inquiry to be appropriate
- The older the child(ren), the likelier that they will be able to express their preference which would be taken into account by the court.
- The reasons for the proposed move
- People move for a multitude of reasons which typically includes better employment opportunity or closer proximity to extended family. However, as stated above, the reasons for the move must at least facilitate an environment that is conducive to the child(ren)’s best interests.
- The extent to which the parents are sharing custody
- In many cases, the parties already have custody orders. The court will look to how the parents are abiding by their current order and what percentages of custody are applicable to either parent.
An international move away is a relocation of the children’s residency to a different country from the United States.
The analysis of such a request is similar to that of a standard domestic move away request but requires an analysis of 3 additional factors to the initial 9 factors per the case Marriage of Condon (1998) 62 Cal.App.4th 533). These 3 additional factors include the following:
- The cultural differences
- Since an international move away means a move to a completely different country, the court will look to whether the move will subject the child(ren) to cultural conditions and practices far different than what they are used to or deprive them of important protection and advantages that would ordinarily available to them in the United States but not available in the other country. Language barriers, extreme cultural practices, loss of rights to the child(ren), and similarity and differences in societal norms may all be considered.
- The distance of the move
- Since the move is international and to a different country, this factor is scrutinized even more as travel expenses, jet lag, time zone differences for communication, obstruction of visitation and contact, and flexibility of employment to facilitate visitation may be taken into consideration.
- The ongoing jurisdictional problem
- When moving internationally, enforcement of a United States court order can be problematic for obvious reasons. The cooperation from the foreign government is necessary to enforce the terms of the judgment. Ensuring that the destination country is a signatory to the Hague Convention is crucial to ensure enforcement of any US court order especially custody orders. Otherwise, there would be no way to ensure the enforcement of any US Court order for a nonsignatory. For enforcement reasons, the court weighs this factor heavily.
What about the expenses for visitation?
In our experience, the issue of visitation expenses is a heated topic for obvious reasons. With greater distance comes significant travel expenses which can include air travel. For international travel, air travel costs are even costlier. While having a mutual agreement between the parties is ideal, this may not always be possible. An in-depth financial analysis is made by the court to determine who has the means to afford such travel arrangements not only for the visiting parent but also for the child(ren) for extended school breaks.
Can the other parent agree to an international move away?
Just as with any other issue in the family court, the parties/parents can always agree to the move through a stipulated judgment. However, the allocation of the responsibility as for visitation expenses needs to be clearly stated within the stipulated judgment in case of enforcement.
What Forms Need to Be Filed with the Courts for an international move away?
To set a hearing for a move-away, the following documents must be filed with the court:
Request for Order forms
- It must be clearly indicated:
- where you are requesting the move-away
- who would be responsible for the children’s transportation costs for visitation
- to what extent would the visiting parent would be responsible for his/her own visitation to effectuate visitation.
- It must be clearly indicated:
- A detailed declaration from the moving party should lay out the reasons for the visitation which should address the factors as described previously. A carefully drafted declaration can go a far way in your request as a weak declaration v. a strong declaration could mean the difference between the court granting your request or a denial. Considering the analytical scrutiny by the court, having an attorney to assist you with this part of the process cannot be overstressed.
- Any exhibits to support a moving party’s move away request could also tip the scales in his/her favor. Information regarding the academics of the new school, relevant extra-curricular availability, flexible holiday schedule of the new school, crime comparisons, and other relevant issues could be presented in the form of evidence to the court.
Do the parties need to attend mediation?
Yes, even if the parties believe that they will not reach an agreement, they are required to attend mediation. If the parties are unable to reach an agreement, then the hearing will proceed as planned. In Orange County Family Court, the mediation session does not result in a “recommendation” being made to the Family Court judge. In other counties within California, the “mediator” also writes a recommendation to the judge. For a complete guide to which counties in California have “recommending” mediators for child custody disputes, click here for our Corona Divorce Lawyer page on this topic.
Are experts necessary for a move away?
While experts are not always necessary, the court could end up ordering a “730” evaluation to determine whether it would be in the child(ren)’s best interests to move. The age(s) of the children and the distance of the move increase the likelihood for a 730 custody evaluation. In international move away cases, this is more likely to be ordered as the distance is more significant than a domestic move away within the United States. These kinds of evaluations can take up to 4 to 6 months, or more.
How long would it take for me to get a decision as to whether I can move with my child(ren) to my country of choice?
Although a multitude of events could occur which could further delay the final adjudication, you should expect a time frame of at least one year.
International move away cases should be carefully planned, whether you are preparing to file such a motion or you received a Request for Order from the other parent requesting a move. Either way, you must contact a qualified international child custody move away lawyer immediately. We have attorneys with successful experience in these types of cases (of course, we cannot guarantee any results for any particular case), so for more information as to how we can help you.