Move-Away: Custodial Parent Has A Presumptive Right To Change Residence Of Children

When one parent wishes to move so far away from the other that normal visitation cannot take place, the automatic question becomes: “Can they do that?!” Unfortunately for the non-custodial parent and fortunately for the custodial parent, the answer is “yes” most of the time. A case called Marriage of Burgess made the ability to move the children out of their former area of residence much easier for the custodial parent. Family Code Section 7501 states that the custodial parent holds a presumptive right to change the residence of the children as long as it would not prejudice the rights or welfare of the children. Interestingly, the Burgess court held that the parent seeking the move away does not need to prove the move is necessary or meet any other burden to move away but only that it falls within the parameter of Family Code Section 7501.

In Burgess, both parties lived in Tehachapi. Wife petitioned the court to move the children to Lancaster, which was 40 miles away. Wife had sole physical custody of the children and Husband had liberal visitation. Wife testified that the move would give her a better position at work and would give children a better opportunity for education and medical care. Husband testified that he would not be able to maintain his visitation schedule.

The court held that permitting the children to move to Lancaster was in the children’s best interest and that the parent seeking to relocate the children bears no burden of establishing the move is necessary. The Burgess court event went on to say, “we discern no statutory basis, however, for imposing a specific additional burden of persuasion on either parent to justify a choice of residence as a condition of custody.”