Move-Away Cases

Move-Away Cases

A recent California appellate decision may change the way trial courts decide custody “move- away” cases. Move-away cases occur when a parent wishes to relocate with a minor child to a distant location and requests the court’s permission to allow the move. Move-away cases represent a dramatic and sometimes permanent change in the relationship between parents and children and a careful and thoughtful decision should be reached before a move-away is permitted.

Unfortunately, as many parents have experienced first-hand, courts do not always adhere to procedural rules and often make “temporary” orders permitting a move-away that become permanent orders. Once “temporary” orders are issued and parents move-away with the minor child, it is quite a challenge for the parent left behind to convince a court that the minor child should be returned back to their previous residence. By the time the moving parent has relocated with the child, the new residence becomes the status quo and the stability and continuity of the minor child’s life is frequently considered to be at the new location.

A recent case prevents the Court from making “temporary” orders that allow the “move-away” before a full hearing can be held. In Andrew V. v. Superior Court, the Court issued a “temporary” order that allowed mother to move-away with minor child while a full hearing was pending. Mother and father shared joint legal and joint physical custody of minor child. Father quickly petitioned the court for a 30 day automatic stay under California Code of Civil Procedure § 917.7. Mother argued that since this was a “temporary” order the 30 day automatic stay did not apply. The Court agreed and allowed the minor child to move.

The appellate court decided several important matters. First, the Court stated that a full hearing must be held before any move-away order could be made. The Court held that the best interests of minor children require that both parents be allowed to completely present their evidence and claims before the Court makes an order allowing minor children to move-away.

Second, the court ruled that California Code of Civil Procedure § 917.7 applies irrespective of whether the order is “temporary” or “permanent.” The appellate court found nothing in the statute that provides an exemption simply because an order is “temporary.” The Court stated that even “temporary” orders have serious consequences and this is especially true in move-away cases. In Andrew V., the minor children were ordered to return to California until a full hearing could resolve the matter.

The Andrew V. case will hopefully resolve confusion about California Code of Civil Procedure § 917.7 as the appellate court clarified that this statute applies to both “temporary” and “permanent” custody orders. This statute will be particularly useful for parents that seek a full and fair hearing on move-away cases. California Code of Civil Procedure § 917.7 provides for a 30 day stay of the Court’s order to allow a parent to appeal the Court’s decision.