Saturday, October 13, 2007

Custody In California And Move Away Cases

California Family Law Code has a joint custody law that encourages judges to award joint legal custody to parents. Legal custody means that both parents have a right to make decisions concerning their children, such as education, medical treatment religious training and their overall welfare. Traditionally, research studying the effects of joint legal custody supported the contention that when both parents play a significant role in making these joint decisions, children do better. Many times communication between the parents for the benefit of the children improves as well.

The judge also has the power to award physical custody to one or both parents. Physical custody determines where the child primarily lives. Depending on the child’s age and overall circumstances, it is most common for the children to spend most of their time with one parent. The parent who does not have primary physical custody is usually granted secondary physical custody or visitation rights. The main theory behind this parenting arrangement is also based on family systems research spanning the last 25 years.

The premise behind this co-parenting arrangement rests on research establishing that kids do better in custody arrangements where they have a primary place to live and go to school. Keep in mind that any reasonable plan that the parents develop between themselves will be supported by the court. For example, if the parents both live in the same school district and their residences are a short distance from one another, a time share roughly equal might be achieved.

It is most common and traditional timeshare for a non custodial parent would be to have specified periods of time consisting of alternating weekends, one-half of the children's school vacations and holidays. In some cases, the parents agree to reasonable secondary physical custody or visitation rights, which mean that the parents collaborate on the times when the non-custodial parent will have the children. This less structured more open ended arrangement works well when the parents have a minimal amount of difficulty working with one another.

One parenting order that should be avoided is a visitation arrangement that says something to the effect that the parent with the lesser time share should just have “reasonable visitation” without any specific timetable or dates. If the parents have conflicts with one another, this kind of order could lead to a denial of visitation and might not be enforceable by the parent asking for visitation.

If you are fearful that the other parent may take a step in the future to move out of the area, you can request from the judge and in some cases, a judge will issue orders preventing either parent from changing the residence of the children from a specified geographical area. This kind of case is typically referred to as a “move away” case

Locally, it is not uncommon for a judge to restrain the parents from changing the residence of the children from what are referred to as "the ten Bay Area (northern California) counties." Such orders are common where both parents have a considerable amount of parenting time with the children and removing them from the metropolitan area would be disruptive to the children’s family, school and peer connections.

Because our local traffic and commute patterns have become so complex in the last 10-15 years, we are seeing more cases in court where the move may be denied even though the miles covered in the custody time share travel seems minimal. Each case must be looked at with its own unique set of circumstances when examining the possibility of a move to another area.

Over the last ten years, courts in California have been dealing with the right of a custodial parent to move with the children to another metropolitan area or out of state. The California State Supreme Court recently decided a case that seems to have settled this controversy. Under the new rule, the primary custodial parent generally has the right to decide where the children are to live, as long as he/she is not moving simply to deny the other parent access to the children.

The Law Offices of Arlene D. Kock A Professional Law Corporation has its principal office in San Ramon California. Ms. Kock’s practice for the last 29 years covers all aspects of family law.

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