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Out of County? Out of Country? How the LaMusga Factors Can Affect Your Move

Posted by Ahluwalia Law Professional Corporation | Dec 20, 2017 | 0 Comments

In California family law, a ‘move-away' case occurs when one divorced or separated parent wants to move to another geographic location with their children, leaving the other parent behind. Because the children are likely to lose regular contact with one of their parents, these situations are definitely one of the most difficult custody situations to decide.

If the court permits the move, the non-custodial parent will find their visitation schedule interrupted, causing them to miss out on many important events in the children's lives. On the other hand, if the move-away request is denied and the custodial parent simply must leave for work or another urgent reason, the children are separated from their primary caregiver.

Needless to say, California family courts carefully weigh all factors before making a decision. The Marriage of LaMusga (2004) established guidelines for judges to follow in California move-away petitions.

The LaMusga Case

Susan LaMusga, who had primary physical custody of her two children, wanted to relocate with them with Ohio. A custody evaluation established that the move would have a negative effect on the children's relationship with their father, Gary, who shared joint legal custody with his former spouse, as Mrs. LaMusga did not encourage them to have a continued relationship with him. The trial court therefore concluded that if she chose to move, Gary LaMusga would be awarded primary physical custody.

The California Court of Appeal reversed the trial court's decision, stating that the lower court did not consider the mother's presumptive right as custodial parent to move the children or the need they had for stability and continuity in the current custody arrangement. It also found that undue emphasis had been placed on what the move would do to their relationship with their father.

When the Supreme Court weighed in, it rejected the Court of Appeal's position that too much emphasis was placed on the potentially detrimental effect on the father-child relationship, and added that a trial court had the discretion to order a change in custody as long as such a change was in the best interests of the child.

The LaMusga Factors

The LaMusga case laid out all the factors that required careful consideration before a move-away request was granted or denied.

  • The child's need for stability and continuity. Studies have confirmed that children do better when they have a routine they can rely on, whether it is staying in the same city or living with the same parent.
  • The relocation distance. If the children move hundreds and even thousands of miles away, it will be more difficult for them to remain in contact with the noncustodial parent.
  • The child's age. Younger children may find a long-distance move more upsetting, while older children may be more adaptable.
  • The child's relationship with both parents. Is the child emotionally closer to one parent than the other, making a separation detrimental?
  • The parents' relationship with each other. If they are willing and able to communicate, the relocating parent will be more likely to encourage and support the child's long-distance relationship with the other parent.
  • The parents' willingness to put the child's needs first. When a parent can put the child's needs ahead of their own, their suitability to be primary caregiver is enhanced.
  • The child's wishes. This factor takes into account the child's ability to maturely express what living arrangement they prefer. California law actually requires that children 14 and older must be allowed to testify in relevant court proceedings, unless it would clearly be harmful to the child to do so.
  • Reason for the proposed relocation. Is the custodial parent seeking to move for an urgent reason (e.g. job transfer) or are they trying to undermine their ex's relationship with the child?
  • The extent to which custody is being shared. Unless circumstances advise otherwise, courts are reluctant to separate a child from the parent they spend the most time with.

Other factors taken into account include the child's ties to the community (e.g. friends, activities, nearby relatives) and whether the child has special health and education needs that are best served in the current or proposed location.

If you are seeking a move-away order or wanting to prevent one from separating you and your children, please contact Ahluwalia Law P.C. today at (408) 416-3149. We understand how important it is to preserve the parent-child bond, and will advise you on the most effective strategies for presenting your case.

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