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The California statute governing this issue is Family Code Section 7501. Section 7501 states:
(a) A parent entitled to the custody of a child has a rightto change the residence of the child, subject to the power of thecourt to restrain a removal that would prejudice the rights orwelfare of the child.(b) It is the intent of the Legislature to affirm the decision inIn re Marriage of Burgess (1996) 13 Cal.4th 25, and to declare thatruling to be the public policy and law of this state.
As to the Burgess case, it contains the same language that was codified in 7501, that being that the custodial parent has the right to move so long as the move does not "prejudice the rights or welfare of the child."
So the question here is whether her move will effect the welfare of the child and the contact with you. I would suggest that this is a close call. If the move were just a bit shorter, perhaps only 30 miles or so, it would seem highly probable that the move would be permitted. Conversely, if the move were a bit longer, perhaps 2 hours away, it would seem highly probable that the move would not be permitted. With the distance at issue here, it would be all but impossible to state with any certainty whether the move would be permitted.
If the two of you cannot reach an agreement as to the move, it will ultimately be at the court's discretion. In that event, she would want to demonstrate that the move would be good for the child and that it would not interfere with the relationship between the child and the other parent. Conversely, you would want to demonstrate that the move provides no benefit for the child and that it would be detrimental to your relationship with the child.
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I"For Joseph".....I understand what you stated in the above answer. However, I don't see how this would be possible if the custody is joint physical and legal 50/50. If the mother knows that I have her throughout half the school week and commute her to school on my mornings. How would she be able to move without any prior notification over an hour a away? What would be my course of actions to take regarding this? Do I file with the courts immediately?
The difficulty lies in the fact that the California statute does not provide any specific guidelines. For instance, some states have statutes indicating that the parent can move up to 50 miles without obtaining the consent of the other parent or an order from the judge. California, however, provides no such guidance. The net result is that parents are placed in a situation such as yourself, that being having no real guidance from the law.
I understand your point completely, that being that her proposed move will, in fact, effect you and your relationship with your daughter. Unfortunately, as I detailed above, the law simply does not provide a definite answer.
As to the involvement of the court, the mother may file with the court to seek permission to move. Alternatively, if she simply intends to move without your consent or a court order, the recourse would be for you to file to prevent the move.
If we decide to settle things with out the court and we reach a mutual understanding, will a mutual agreement via emails hold up in court if she were to try and change the order late? Or try and say that I was in violation of original order. Again; if we had email communications from her stating what the new arrangement was..... would that hold up in court? If that makes any sense to you, sorry
I would never suggest relying on emails when going to court. Emails can be modified or changed, people can denying having authored the email and, most importantly, an email is not a substitute for a court order.
If the agreement is for nothing to change, then there is probably no need to do anything. Conversely, if the agreement is for a move or change in any way, then it would be wise to draft a stipulated modification to your judgment. You would each sign off on the modification and then forward it to the judge to have him sign off on it as well. You would then have a court order that would be binding upon you both and would absolutely "hold up in court".
Considering the gravity of the issues, you might consider retaining a family law attorney to handle it for you. The attorney could draft the paperwork, facilitate the signatures, forward it to the judge and otherwise ensure the accuracy and validity of the order.
Forgive me for not understanding this.....I had a balance of $45 and checked box for unlimited questions. My balance is now zero after accepting your anwser once. Now if I click accept anwser it's asking for more money, that wasn't what I understood as the way this would work....????
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