How the Type of Custody Award You Have Affects Your Request to Move Away
This article addresses some of the rules that Judges must apply in deciding move away cases. The rules are different for temporary (non-permanent) awards and final awards. Non- permanent awards can include: temporary (pendente lite) awards made by the judge during the case; a stipulation and order signed by the Court before final judgment; or a situation where custody is determined by court order as a result of a domestic violence case.
Permanent awards are awards intended by the parties to be permanent or those made after trial or that become a part of the judgment of dissolution. With a final custody award, if a parent with sole physical custody seeks to move away with a child, that parent has the presumptive right to do. He or she does not have to prove that such a move is necessary. To prevent relocation, the parent without sole custody has to show that changed circumstances require the court to reevaluate the child’s custody or show that the proposed relocation would be detrimental to the child.
If parents have joint physical custody, custody may be modified “ ‘if it is shown that the best interest of the child requires modification.’ ” Thus, the relocating parent does not have a presumptive right to change the child’s residence and the other parent does not have the burden of showing substantial changed circumstances (i.e., that the move will be detrimental to the child). Thus, the trial court reviews de novo what physical custody arrangement is in the best interest of the child. Stipulated custody awards are not considered permanent unless there is a clear, affirmative indication the parties intended such a result.
If there is no final judicial custody determination, meaning no award, or a temporary/ or non-permanent award is in place, the changed circumstances rule does not apply. Neither parent has to show that the proposed move would be detrimental to the child. Instead, the court must determine “de novo” what physical custody arrangement would be in the child’s best interest despite the current arrangement. All other things being equal, if you are opposing a move away request, a “de novo” determination is the type of determination you want the court to make. And, if you are the parent seeking to relocate, a permanent sole custody award gives you the easiest burden of proof in having your move away request granted.
For more information, please call the Law Offices of Richard A. Marcus: 661-257-8877.
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