Often people enter into child custody agreements early in the stage of a child custody conflict. Either through a divorce proceeding or a paternity action. Parties often I have found through the years as a family law practitioner are eager to resolve all custody disputes early and without any real concern to what might happen down the road in their child custody dispute with the other party. This hasty decision making usually hurts the party who is not on the good end of a custody agreement. Thus, it is important early on in the child custody dispute to make sure you look down the road at what could come around the corner by the other party.
First and foremost, don’t agree to any party having sole physical custody of the child or children. You will be doomed later down the road when the party comes back to court or even unilaterally without court intervention seeking a move away order from the Judge. I have had clients on many occasions whereby they agreed to the other party to have sole physical custody and later on they regretted it tremendously. This is not similar to sole legal custody. Legal custody deals with only decision making by the parties and has nothing to do with the custody of the child.
Ultimately a party’s goal should want to get joint physical custody of the child.
The case law in California is very narrowly tailored to permit a move away if the parties had agreed to anything other than sole physical custody to one parent. Family Code section 3020 permits a revisit of the custody order revisiting the balancing test of the best interest’s standard. The primary concern of the Court is the Health Safety and Welfare of the child. And if there is no health safety and welfare issue the Court will look into which parent will facilitate the frequent and continuing contact with the other parent. This is a vital and pivotal determination the Court will look at when deciding the fate of a parent who requests to move away.
Courts can also change custody if one parent during the move away process exhibits the inability to promote continuous and frequent contact with the other parent. Thus I strongly suggest as does the Court that the parents meet outside of Court to outline a custody arrangement that is feasible to both parents and one that permits the other parent to have there fair share of custodial time with the children.
In summation move away cases are unique to family law and often need very good planning by the moving party when going to Court to request a move away. Be open minded and remember to include the other parent in all decisions regarding the custody of the minor child.