Free Initial Consultation

Talk to a Family Law Attorney in Fallbrook, CA, Today .

Exceptional Results

Our attorney and staff place an emphasis on providing legal services that deliver exceptional results to each and every client we represent

Our Expertise

Our firm is committed to providing you with the expertise necessary to meet all of your needs. We pride ourselves on offering professional attention to every case, no matter how big or small.

A self motivated, high energy, solutions oriented individual with a solid record of success in all stages of case proceedings.

Call Today for free consultation: (760) 364-0420



CRIMINAL DEFENSE

CALL TODAY FOR FREE CONSULTATION: (760) 364-0420

FAMILY LAW

CALL TODAY FOR FREE CONSULTATION: (760) 364-0420

restraining orders

CALL TODAY FOR FREE CONSULTATION: (760) 364-0420

CONTACT US

CALL TODAY FOR FREE CONSULTATION: (760) 364-0420


Family Law

Moving out of State with Children
Part I


As a single, custodial parent, living in California can be expensive. Sometimes, the prospect of a new job or a new marriage presents an opportunity for the parent to improve their standard of living. Sometimes these arrangements involve moving out of the state. New beginnings are often a great thing for both the parent and child, and often the non-custodial parent is either already living out of the state or does not object. But what happens when the non-custodial parent opposes the move due to the changes it will have on their visitation schedule?


This three part article discusses the procedural and legal considerations involved in obtaining the court’s permission to move out of the state, over the objection of the other parent. It does not address every conceivable situation that could arise, only the general rules. Specifically, we focus primarily on situations of sole physical custody (joint physical custody has somewhat different rules, partially explained here). This article also does not discuss the initial custody determination except in passing. Neither does it address the differences between physical and legal custody. It rather assumes that there has already been a final custody order in the state of California, and that the parent with primary or sole physical custody is now seeking to move without disturbing that order.


Part 1 of this article addresses the initial question of the best interests of the child, which is the main substantive issue at all phases of a child custody dispute. Part 2 discusses the parent’s right to move under the case law. Part 3 discusses the mechanics of the Uniform Child Custody Jurisdiction and Enforcement Act, so the reader understands the procedures involved with ensuring that their move goes smoothly and in an orderly fashion.

Best Interests of the Child


First, keep in mind that as with all custody and visitation arrangements, the court’s primary concern will be the best interests of the child. This is the first thing a judge will consider in entering a temporary custody order during divorce proceedings or petitions for custody. It will also be the focal point of a judge’s final custody and visitation order, as well as any subsequent petitions for modification or petitions to move. See Montenegro v. Diaz, 26 Cal.4th 249 (2001). Under Family Code §3011, the child’s best interests are determined by considering the following factors:


(a) Health, safety, and welfare of the child,
(b) Any history of abuse by one parent,
(c) The nature and amount of contact with both parents, and
(d) Use of controlled substances or alcohol abuse by either parent.


Notably, the code specifies that the court shall consider the above factors “among any other factors it finds relevant.” That is, these factors are mandatory considerations, but the court is permitted to consider other factors. And in fact, there are other relevant factors that apply to specific cases. Many other states have far more expansive lists of factors to consider. For example, Illinois (where the author is also licensed to practice law) lists the following as factors:


• The wishes of each parent,
• The wishes of the child (accounting for age and maturity),
• The amount of time each parent spent performing caretaking functions in the previous 2 years,
• Any prior agreement or course of conduct between the parents relating to caretaking functions,
• The child’s relationship with his or her parents, siblings, and any other person who may significantly affect their interests,
• The child’s adjustment to his or her home, school, and community,
• The mental and physical health of all individuals involved,
• The child’s needs,
• The distance between the parents’ residences, cost and difficulty of transportation, the parents’ and the child’s schedules, and the ability of the parents to cooperate in the arrangement,
• Whether a restriction on parenting time is appropriate,
• Any physical violence or threat thereof,
• The willingness and ability of each parent to place the needs of the child ahead of his or her own needs,
• Abuse against the child or other household member,
• Whether one parent is a convicted sex offender, and the nature of the offense,
• The terms of a parent’s military family-care plan,
• Any other factor that the court expressly finds relevant.
(750 ILCS 5/602.7(b)(1)-(b)(17), paraphrased and shortened).


So, in California, a court may consider more than the 4 statutorily required factors in determining the best interests of the child for purposes of the initial custody determination. The court may consider additional factors in determining whether to grant the custodial parent’s petition to transfer venue. This will usually involve factors relating to the child’s relationship with the non-custodial parent and other family members affected by the move.


In a “move-away” situation, the non-custodial parent may oppose the move, but to be successful, they must prove that the move would be detrimental to the best interests of the child. This includes any evidence about how the parent’s relationship with the child would be harmed, how instability or discontinuity may affect the child, or how distance from other family members may affect the child. Each case is different, and the “best interests of the child” analysis can emphasize a variety of different factors depending on what issues are relevant in a specific case. So nothing prohibits a California court from considering these additional factors.


Also, keep in mind that if you seek to have your order enforced or modified in another state after your move, the law of that state, including additional factors in the best interests of the child analysis, will apply.


If the non-custodial parent proves that the move will be detrimental to the child, the court will not outright forbid the move. However, the court may order a change in custody as a condition of the move. When this happens, it may effectively stop the move, because the parent may decide moving is not worth losing primary custody. However, the custodial parent is free to choose to move anyway, forfeiting primary custody. For reasons set forth in later installments, the custodial parent will rarely have to make this choice.


Conclusion


Child custody issues can sometimes be complicated. These issues become more complicated when the parent with primary custody seeks to move out of the state. You should not attempt to leave the state before you have a final order of custody. And even after this, it is unwise to attempt to do so without the advice of counsel, as there are a number of complicated issues you will need to consider first.


If you have primary physical custody of your children and you want to leave the state of California, contact the Law Office of Justin Nelson today.



Moving out of State with Children
Part II: The Right to Move

As a single, custodial parent, living in California can be expensive. Sometimes, the prospect of a new job or a new marriage presents an opportunity for the parent to improve their standard of living. Sometimes these arrangements involve moving out of the state. New beginnings are often a great thing for both the parent and child, and often the non-custodial parent is either already living out of the state or does not object. But what happens when the non-custodial parent opposes the move due to the changes it will have on their visitation schedule?

This three part article discusses the procedural and legal considerations involved in obtaining the court’s permission to move out of the state, over the objection of the other parent. It does not address every conceivable situation that could arise, only the general rules. Specifically, we focus primarily on situations of sole physical custody (joint physical custody has somewhat different rules, partially explained here). This article also does not discuss the initial custody determination except in passing. Neither does it address the differences between physical and legal custody. It rather assumes that there has already been a final custody order in the state of California, and that the parent with primary or sole physical custody is now seeking to move without disturbing that order.

Part 1 of this article addresses the initial question of the best interests of the child, which is the main substantive issue at all phases of a child custody dispute. Part 2 discusses the parent’s right to move under the case law. Part 3 discusses the mechanics of the Uniform Child Custody Jurisdiction and Enforcement Act, so the reader understands the procedures involved with ensuring that their move goes smoothly and in an orderly fashion.

The Presumptive Right to Move

There are a number of valid reasons why a single, custodial parent would seek to move to another state. Sometimes, a new job or a new marriage proposal will be the reason for a move. Other times, as is often the case in military divorces, the custodial parent will want to return to their original home state in order to be closer to family and start over. These are all legitimate, good faith, reasons to move. The only illegitimate basis for moving children away from the noncustodial parent is when the move would be detrimental to the child, or if the move is undertaken for the purpose of thwarting the noncustodial parent’s relationship with the child.

Until the mid 1990s, California courts used to require the parent seeking to relocate with the children demonstrate that the move was out of necessity, and placed on them the burden of proving this necessity. That changed in 1996, when the California Supreme Court decided In re Marriage of Burgess, 13 Cal.4th 25 (1996). That case held that a custodial parent had a “presumptive right to move.” The California legislature ultimately codified this holding:


Family Code § 7501
(a) A parent entitled to the custody of a child has a 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.
(b) It is the intent of the Legislature to affirm the decision in In re Marriage of Burgess (1996) 13 Cal.4th 25, and to declare that ruling to be the public policy and law of this state.

Under these legal principles, so long as the proposed move is not done as a pretext to thwart the noncustodial parent’s relationship with the child, and does not harm the child’s interest, the move will be approved. The non-custodial parent may still object to the move, but they have the burden of proving that the purpose of the move is to interfere with their relationship with the child, or that it otherwise harms the child (See In re Marriage of LaMusga, 32 Cal.4th 1072 (2004)). As long as the custodial parent has a good faith reason for the move, such as a new marriage, a new job, educational opportunities, or family support, the move will be approved.

This does not mean that there will be no changes. Remember that custody, visitation, and support orders are never truly permanent. There is always the possibility of a modification when there are changed circumstances, and a move out of the state constitutes a significant change in circumstances, regardless of the reason. In many cases, visitation schedules will have to be modified to reflect the move, often including longer but less frequent stays with the non-custodial parent, and sharing of transportation costs. Also, as financial circumstances change as a result of the move, child support may be subject to modification as well. The situation of a new marriage also presents significant changes of circumstances both as it pertains to custody and as to support. If the new spouse does not have a good relationship with the child, if the new spouse’s children do not have a good relationship with the child, or if the new spouse is abusive, these are significant changes in circumstance that could result in a change of primary physical custody.

Conclusion

Child custody issues can sometimes be complicated. These issues become more complicated when the parent with primary custody seeks to move out of the state. You should not attempt to leave the state before you have a final order of custody. And even after this, it is unwise to attempt to do so without the advice of counsel, as there are a number of complicated issues you will need to consider first.

If you have primary physical custody of your children and you want to leave the state of California, contact the Law Office of Justin Nelson today.



Moving out of State with Children
Part III: The UCCJEA

As a single, custodial parent, living in California can be expensive. Sometimes, the prospect of a new job or a new marriage presents an opportunity for the parent to improve their standard of living. Sometimes these arrangements involve moving out of the state. New beginnings are often a great thing for both the parent and child, and often the non-custodial parent is either already living out of the state or does not object. But what happens when the non-custodial parent opposes the move due to the changes it will have on their visitation schedule?

This three part article discusses the procedural and legal considerations involved in obtaining the court’s permission to move out of the state, over the objection of the other parent. It does not address every conceivable situation that could arise, only the general rules. Specifically, we focus primarily on situations of sole physical custody (joint physical custody has somewhat different rules, partially explained here). This article also does not discuss the initial custody determination except in passing. Neither does it address the differences between physical and legal custody. It rather assumes that there has already been a final custody order in the state of California, and that the parent with primary or sole physical custody is now seeking to move without disturbing that order.

Part 1 of this article addresses the initial question of the best interests of the child, which is the main substantive issue at all phases of a child custody dispute. Part 2 discusses the parent’s right to move under the case law. Part 3 discusses the mechanics of the Uniform Child Custody Jurisdiction and Enforcement Act, so the reader understands the procedures involved with ensuring that their move goes smoothly and in an orderly fashion.

The Uniform Child Custody Jurisdiction and Enforcement Act

All but one of the 50 states (the exception being Massachussetts) have enacted the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA). The Act was first promulgated by a group of legal scholars known as the Uniform Law Commissioners, dedicated to writing proposed laws for all states to enact. The UCCJEA is one of the most successful products of this organization in terms of being widely adopted, and a parent dealing with interstate child custody issues should be grateful for this, because it provides a uniform system across state lines by which courts may determine original jurisdiction, exercise emergency jurisdiction to modify or enforce an out of state custody decree, grant changes of venue, and grant the custodial parent leave to move out of the state. So with the exception of Massachussetts, every state follows the same rules when it comes to making these determinations. So on the same set of facts, the outcome should be the same from state to state.

In California, the UCCJEA is found in Family Code §§3400-3465.

The UCCJEA sets up procedures for transfer of venue, enforcement of an out of state order, and modification of custody and visitation in the child’s new home state, if needed. The following non-exhaustive summary seeks to explain the way the UCCJEA works in laymens terms, without getting bogged down in the minutae that may be relevant in a given case. This information does not constitute legal advice.

We begin with the original custody order. As set forth in part 1 of this article, the original custody order should be entered on the basis of the “best interests of the child.” As set forth in part 2, this original order is transferrable to and enforceable in another state because of the parent’s fundamental right to move, so long as they are not moving for a bad faith reason. This installment discusses the proper way to transfer your original order of custody to another state without running into problems of complicated, multi-state litigation.

The best way to go about having your custody order enforced in the state to which your are moving is to petition the court in your current home state to transfer venue prior to moving. The UCCJEA provides a procedure for this. This does give the other parent the right to object, but so long as you have a good reason to move and aren’t deliberately trying to make visitation more difficult, the court should allow the move and transfer venue for future proceedings. Once this petition is granted, the court from the sending state will certify the order to the court of the receiving state, to be entered there. This effectively vests jurisdiction in the receiving state for all future modification and enforcement proceedings. This will save you the potential trouble of having to return to California later to litigate the move after the fact.

However, if you are in a rush to move for some reason (for instance, if an out of state job offer has a hard acceptance deadline), it is possible to enforce your California custody order after the fact in your new home state. The UCCJEA provides for a change in jurisdiction when the child’s state of residence has changed, and establishes procedures for the two state’s courts to communicate with each other. There are pitfalls to trying to handle this after the fact, however:

1.If the other parent did not consent to the move to begin with, they may attempt to file an objection to the move in California before you are able to have the case transferred to your new home state. This would mean you would have to litigate the issue in California. While this may be done by teleconference, you are still in a difficult position with the court because you have to explain why you left the state without first seeking a venue transfer.
2.If you do obtain a transfer after the fact, any modification proceedings may possibly be subject to the new forum state’s laws rather than California law. You may be unwittingly walking into a situation in which different presumptions apply. For instance, you may be going to a state that disfavors sole legal custody, and your modification may involve certain concessions on your part.

Conclusion

For the above reasons, it is always a much better idea to go through the procedures provided in the UCCJEA before moving. This will ensure that your move goes as smoothly as possible and you avoid unnecessary legal hassles after the fact. Keep in mind though, that these issues can sometimes be very complicated (sometimes more complicated that it appears even from this explanation). It is always best to contact an attorney who will help you with the legal side of things while you focus on the practical aspects of preparing for your move.

If you have primary physical custody of your children and you want to leave the state of California, contact the Law Office of Justin Nelson today.



“Palimony” and the Law

This post discusses the concept commonly known as “palimony.” Although palimony is not an actual legal term, it is a popular stand-in term for the idea that the parties to a non-marital, cohabiting relationship may have contractual rights upon dissolution of the relationship, including an interest in property obtained during the relationship. This article instead uses the correct legal term for these kinds of lawsuits: “Marvin claims” (named after Marvin v. Marvin, a 1976 case that first recognized the cause of action in California). This article discusses what a Marvin claim is and is not, the legal issues involved, and what facts are important in assessing the strength and weakness of a case.

Prior to 1976, these sorts of claims were viewed with suspicion because it was believed that the courts should be encouraging marriage, and that providing a remedy for non-married couples failed to advance this policy. Courts and policy makers feared that recognizing property claims in such cases would be akin to either enforcing prostitution contracts or a return to the days of “heart balm statutes,” which gave a jilted fiancé a right to sue for breach of promise to marry. However, the Marvin court observed that by that time cohabitation without marriage had been increasingly popular for the past 15 years, with or without a romantic relationship. Today, the phenomenon is even more widespread, and the economic interrelationships have become increasingly complex.

What a Marvin Claim Is Not:

Perhaps it is most useful to clear up common misconceptions by explaining what Marvin claims are not. A Marvin claim is a cause of action totally distinct from anything in the California Family Code. It is therefore not any of the following:

1. Common law marriage,
2. Division of marital property (community property),
3. Alimony, spousal, or child support.

California, like most states, does not recognize common law marriage. Granting property rights to one member of a cohabitant relationship upon dissolution is NOT the same as recognizing the existence of a common law marriage.

Nor is a Marvin claim the same thing as division of marital assets. In California, marital assets are divided equally among the two spouses. This model of property division is called “community property,” which is distinct from the more common “equitable distribution” model prevailing in a majority of the states.

Nor are Marvin cases the same thing as alimony or child support. First, child support is often available to the custodial parent whether a marriage existed or not, unlike alimony. Second, alimony is not available even in all marriages. Lastly, Marvin claims are different from alimony in that they result in a single award based on equitable interest in property acquired during the relationship, not a recurring payment.

What a Marvin Claim Is:

But if a Marvin claim is none of these things, what is it? Marvin claims are causes of action based on contract theory. These causes of action allege express or implied contracts between cohabitants, wherein both parties acquire interests in the property acquired during the relationship.

Therefore, Marvin claims are based on principles of contract, property, and equity. This includes concepts such as detrimental reliance (when one person foregoes certain opportunities at the inducement of another with a reasonable expectation of a benefit), and the always intriguing question of how to put a dollar value on the household services or other non-financial contributions of a partner.

What makes a Marvin claim different from what its early opponents feared it would be is that courts will refuse to enforce any contract explicitly based on “meretricious sexual services.” That is, a Marvin claim is not a collection on a prostitution debt. Marvin claims specifically require a showing that one party either provided economic value without direct compensation, or that they gave up economic opportunities in order to be a homemaker, or both. The focus is on the economic realities of the household, not on the relationship.

Issues:

Some of the key issues in evaluating the strength of a Marvin claim are:

1. The existence of an agreement, express or implied,
2. Whether one party gave up significant income opportunities to provide household services,
3. Whether one party provided significant economic benefits to the other party, and
4. The length of the relationship.

If an aggrieved party can prove that they gave up significant income opportunities over a long period of time to cohabit with another person, and that in doing so they provided economic benefits to the other person, a court will find that they have an equitable interest in property acquired during the relationship. Depending on the type of property, the extent of the interest, and the feasibility of dividing that property, the court may either order certain property sold and the proceeds divided. This is most likely to be the case when real estate is involved. If the majority of the property acquired during the relationship is personal property, on the other hand (such as cars, furniture, jewelry, electronics, and appliances), the court may instead order it to be divided equitably, rather than ordering a sale and division of proceeds.

Call Today!

If you are at the end of a cohabiting relationship, you don’t have to lose everything you worked for in that time just because you weren’t married. Don’t let guilt or stigma prevent you from asserting your legal rights! Call the Law Office of Justin Nelson today for a free case evaluation. We will examine the facts of your case and advise you as to whether you have grounds for a Marvin claim.

Feel Free To Contact Us