Legal Question in Family Law in California

Re: have joint custody, remarrying and eventually move out of state

You do not say who has physical custody. This is important in terms of what will happen in a court battle. An issue you should work on is how would the move be in the best interests of the children. Are the schools there better? Will you be able to afford a better place to live? etc.

Adam N. Gurley, Esq.

415.334.8439

Re: have joint custody, remarrying and eventually move out of state

You've already gotten some great responses from the other attorneys. Let me put my two cents into the ring as well.

Beyond the legal concerns, you've got to consider your children's best interests. I'm speaking to you as a parent, rather than a divorce litigant. Would your children be better off? Would they see their father often enough for him to continue to be a big part of their lives? How would they be able to adjust to a new school and community? It may make sense to consult with a child psychologist or their school counselor before making a final decision. That person can also tell you how to make the transition easier for them, if you decide to go.

If the move is traumatic, if it triggers a custody battle, and/or if the kids can't adjust, they may end up holding that against you when they're older. They may resent being taken far from their father. Obviously, I don't know what will happen, but there's much more to consider than the legal implications of your decision.

Often, mediation is a good choice in situations such as yours. When people hear that the other parent wants to move far away with the children, they get scared, and react by starting legal proceedings in order to keep the children where they are. Mediation can alleviate some of that fear. It's possible your ex wouldn't have as many issues with the move if he had some input into when he saw the children, and the arrangements for them in VA. Or, if you're convinced he's a good dad, maybe you could work out an arrangement where the kids go to school here and then spend a lot of time with you in VA.

I'm sure as soon as you saw my suggestion that the children might continue to live here, you bristled. Think about how that feels to you--and then think about how that same sentence will probably feel to their dad. Now you understand where he's coming from.....nobody wants their kids to move away.

Any chance of talking the fiancee into moving here?

Either way, the decisions are tough. Good luck!

Diana Mercer

Re: have joint custody, remarrying and eventually move out of state

Your chances are very good. You should look at your judgment and see if there is a no move away order. In any case you should retain an attorney for this one!!

Re: have joint custody, remarrying and eventually move out of state

I don't know that I would be quite as enthusiastic as the previous atty response.

You did not indicate how much time the children are with the father.

Under Burgess, the "custodial" parent has the right to relocate with the children and that cannot be interfered with by the court, except upon a showing that it is against the best interests of the child. Biallis holds that the non-custodial parent is not entitled to a de novo review of custody.

The problem is in defining "custodial parent". If the time share is something like 60/40, or even 65/35, some trial courts have found that there is no one custodial parent and ordered de novo review.

Another factor would be the ages of the children and their own desires, if old enough. You children are on the cusp of being "old enough".

Lastly, you did not mention the gender of the children. In adolesence, generally, boys want to be with dad and girls with mom. That could be a factor.