Court of Appeal Requires Full Adversarial Hearings for Move Away Requests with Children


By Don Schweitzer, Certified Family Law Specialist

When divorced parents share child custody and one of them wishes to move away (out of state or country) with the children, there are specific procedures under California law that protect the left behind parent’s rights before the move-away request can be granted. In one case, a mother requested a move-away with her children because her company offered her a promotion for a position out of state. The father opposed the move away, but during the hearing the custody evaluator was unavailable and the father’s counsel was ill. The court ordered a “temporary” move away, which allowed the mother and the children to relocate. However, the trial court was reversed for rendering a temporary order, pending a full evidentiary hearing.

The Court of Appeal held that a full adversarial hearing must precede, not follow, any out-of-state move-away order, however denominated. Adherence to fundamental procedural safeguards is critical in move-away situations, which are among the most serious decisions a family law court is required to make, and should not be made in haste. The best interests of the children require that the parents' competing claims be heard in a calm, dispassionate manner, with adequate time to marshal and present evidence.

The Court of Appeal also noted that children live in the present tense, and “temporary” relocations may have a severe and pernicious impact on their well-being and sense of security.

This is a very good ruling that favors would be left behind parents as it ensures that a full hearing must be held before a court grants a move away request, even if the move is “temporary.” Although the result may be the same after a full evidentiary hearing, i.e., the move away request may be granted, at least the left behind parent will know his or her objections to the move were heard.