Ask Me Help Desk - Needing to leave CA with children

Due to job loss and lack of affordable housing, I need to leave California with my children, aged 3 and 2. Father is under a 5-year DV restraining order. Paternal grandfather may visit, and may include father as supervisee, but no schedule was ordered. I have sole legal and physical custody. What do I need to do in order to relocate to live with a relative who has offered us a home in another state?

Nothing. If you have sole physical and legal custody and there is no court ordered visitation you are free to move.

Looks like there may be some court ordered custody by way of the Grandmother / Dad. It may not be much but she will have to get permission from the courts to move. The facts that are being stated lack of affordable housing isn't exactly true. Yes its expensive there in the big city but the outskirts are still affordable. So just the thinking of running away will make it better doesn't hold true. The OP makes no reference to continuing visitation that is already ongoing. And could change once the Dad proves himself to get past the DV restraining order.

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Originally Posted by califdadof3

Looks like there may be some court ordered custody by way of the Grandmother / Dad.

I must disagree. I think you are reading too much into what she said. First she specified she has SOLE legal AND physical custody. Second she specified "no schedule was ordred". She said the grandfather "may" visit.

The key here really is the first two. With sole legal and physical custoday and the absence of a visitation order there is nothing legal preventing her from moving.

Feel free to move to another state as you have no untoward court orders not to move without prior permission. Check your court papers just to be sure and if you don't see anything regarding moving without permission, then you can do just that - move out of California. The housing there is far from affordable anywhere in the state unless you want to live in a closet that is. If you have a chance to reside elsewhere - then move. You will probably be able to get a better job there as well. Right now the housing situation for affordable housing is non existent in a lot of areas and California is definitely one of them.

The OP needs to come back and answer a few questions, IS there a term in the child custody agreement that you can not move ? If there is, you will need to get the courts permission.

If there is no clause in there you can merely move

I read the following today and thought it was relevant to this question, especially the last sentence, which I have bolded:

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In the recent case of In re Marriage of Brown & Yana, supra, 37 Cal.4th 947, 955Ã¢â‚¬'956, the California Supreme Court explained: "California's statutory scheme governing child custody and visitation determinations is set forth in the Family Code... ." Under this scheme, 'the overarching concern is the best interest of the child.' [Citation.] [Â¶] For purposes of an initial custody determination, section 3040, subdivision (b), affords the trial court and the family '"the widest discretion to choose a parenting plan that is in the best interest of the child."' [Citation.] When the parents are unable to agree on a custody arrangement, the court must determine the best interest of the child by setting the matter for an adversarial hearing and considering all relevant factors, including the child's health, safety, and welfare, any history of abuse by one parent against any child or the other parent, and the nature and amount of the child's contact with the parents. [Citations.] [Â¶] Once the trial court has entered a final or permanent custody order reflecting that a particular custodial arrangement is in the best interest of the child, 'the paramount need for continuity and stability in custody arrangementsand the harm that may result from disruption of established patterns of care and emotional bonds with the primary caretakerweigh heavily in favor of maintaining' that custody arrangement. [Citation.] In recognition of this policy concern, we have articulated a variation on the best interest standard, known as the changed circumstance rule, that the trial court must apply when a parent seeks modification of a final judicial custody determination. [Citation.] Under the changed circumstance rule, custody modification is appropriate only if the parent seeking modification demonstrates 'a significant change of circumstances' indicating that a different custody arrangement would be in the child's best interest. [Citation.] Not only does this serve to protect the weighty interest in stable custody arrangements, but it also fosters judicial economy. [Citation.] [Â¶] The Family Code contemplates that, in making a custody determination, consideration of the best interest of the child may lead the trial court to award custody either to both parents (joint or shared custody) or to only one parent (sole custody)." (Fn. Omitted.) In that case, the Supreme Court held that where sole legal and physical custody of a child has been awarded to one parent after a contested custody dispute, a noncustodial parent opposing the custodial parent's decision to relocate with the child is not entitled to an evidentiary hearing. (Id. At pp.Â 952, 955.)