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Protecting Fathers’ Rights in Move-Away Petitions

In Alienation of Affection, Best Interest of the Child, Child Custody, Child Support, Childrens Rights, Civil Rights, Department of Social Servies, Divorce, Domestic Relations, Family Court Reform, Family Rights, Non-custodial fathers, parental alienation, Parental Alienation Syndrome, Parental Relocation, parental rights, Parents rights on August 15, 2009 at 3:38 pm

Published: 2009-8-14

Protecting Fathers’ Rights in Move-Away Petitions

State Law Has a History of Unfairly Treating Fathers

California law has long favored awarding primary custody of children to mothers over fathers. This disturbing trend only has served to undervalue the important role fathers play in their children’s lives and reinforce outdated gender stereotypes that mothers are best-suited for raising children.

Until recently, state law also has granted mothers an almost limitless right to relocate with their children. Before a custodial parent can legally move to a new location with their children, they must file a move-away petition with the court. The non-custodial parent also must receive a copy of the petition and will be given a chance to contest the move. If the custodial parent does not file the request and receive permission from the court, the parent can be forced to return to California. The children also may be placed temporarily with the non-custodial parent until the court makes its decision.

California law provides custodial parents the right to move and take the children with them. The court will not prohibit a parent from moving or require the parent to show that the move is necessary. Other states provide greater protection to the rights of non-custodial parents and require parents seeking to relocate to show why the move is necessary and/or in the best interests of the child. California, however, does not require the mother to justify her move.

When a mother moves with her children, the father’s access to the children may be greatly limited, especially if the mother relocates to another state. A father who once had weekly visits may find his time reduced to a couple of weeks each year with his children. The father also may have to incur great expense to spend time with his children, especially if they now live thousands of miles away.

Contesting the Move

Fathers contesting a move-away petition may be granted increased visitation time with their children or the court may even award custody, either temporarily or permanently, to the father if the mother follows through in her decision to move.

Generally, to win a change in custody, the father must be able to prove that the move is a detriment to the child. In the LaMusga case, the California Supreme Court held that the impact of a move on the child’s relationship with the father is a relevant factor in determining whether the move is a detriment to the child and may justify a change in custody.

In an attempt to clarify California law, the court set out eight factors that must be considered prior to modifying a custody order in a move-away case:

  • The child’s interest in continuity and stability in the current custodial arrangement
  • The distance of the move
  • The age of the child
  • The child’s relationship with both parents
  • The relationship between the parents’, including their ability to communicate and cooperate with one another and put the child’s interests before their own
  • The wishes of the child (so long as the child is old enough to communicate them)
  • Reasons for the move
  • The extent to which the parents currently share custody

Fathers who have shared joint custody have a better chance of receiving a change in custody than fathers who rarely see their children. However, even mothers who have sole physical and legal custody of their children do not have an absolute right to move whenever and wherever they want. Even in these cases, the fathers still have a right to contest the move.

Conclusion

The LaMusga case has been heralded as an important victory for father’s rights. While the case does not mean that every father who contests a move-away petition will be able to gain custody of his children, the case does send an important message that the role the father plays in a child’s life is important and cannot be diminished on a whim by the mother.

For more information on contesting a move-away petition, contact an experienced family law attorney today.

Protecting Fathers’ Rights in Move-Away Petitions.

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  1. ” Before a custodial parent can legally move to a new location with their children, they must file a move-away petition with the court. The non-custodial parent also must receive a copy of the petition and will be given a chance to contest the move. If the custodial parent does not file the request and receive permission from the court, the parent can be forced to return to California. The children also may be placed temporarily with the non-custodial parent until the court makes its decision.

    California law provides custodial parents the right to move and take the children with them. The court will not prohibit a parent from moving or require the parent to show that the move is necessary. Other states provide greater protection to the rights of non-custodial parents and require parents seeking to relocate to show why the move is necessary and/or in the best interests of the child. California, however, does not require the mother to justify her move.”

    DO YOU REALIZE THAT YOU HAVE PUBLISHED CONTRADICTORY STATEMENTS???

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