Child Custody, Visitation and Move-Aways

Child custody and visitation, child and spousal support, and the division of community property are the three areas of family law that require the most legal expertise to resolve. Of these, child custody and visitation is usually the most costly, time consuming and emotionally draining.

When someone threatens to limit your access to your child, tries to sever your relationship with your child, or otherwise acts to interfere with your relationship with your child, your natural response is to fight. How you choose to fight to protect your relationship with your child has a greater influence on the outcome than the threat. Resorting to "self help" rarely works. Seeking out competent legal counsel greatly increases the likelihood of a favorable outcome, including an award of primary custody.

Although it is counter-intuitive, many custody battles would never erupt if both parties knew for certain what their post-separation/post-divorce monthly cash flow was going to be. Custody battles often end as soon as both parties feel financially secure.

"Move-away" motions in particular provoke the "fight" reflex and are very expensive, time consuming and emotionally draining. In the last few years, both the law and psychological theories about how children bond have undergone significant change. Current psychological thinking recognizes that children form many "primary" relationships, not just one or two as previously believed. Children also form strong bonds to "place". Neighborhoods, schools, clubs, teams, friends, and even pets are important to children.

Recently, the law caught up with current psychological views of children who are subject to the "moving" parents desire to relocate. In April 2004, the California Supreme Court, in IRMO LaMusga, S107355, held that the "best interests of the child" standard applied in determining whether to grant the "moving" parent's request to relocate with the minor children.

The IRMO LaMusga case be found in its entirety here.

On the face of it, this decision hardly seems earthshattering, but in practice it changed the entire legal landscape. The net effect of LaMusga is that it is now harder for the parent with primary custody to relocate with the minor children.

In practical terms, LaMusga also means that move-away requests will take more time and expertise to litigate. If you are faced with the prospect of either having to move (e.g., your employer is transferring you to another state) or of having to defend against the other parent's motion seeking a move-away order, legal counsel is strongly advised. This area of law is in flux, and, therefore, these cases require extensive preparation (including psychological evaluations) because they involve life-altering consequences for all concerned.