Can a Non-Custodial Dad or mum Get Custody and Transfer Out of State?

blog home Child Custody Can a Visitation Parent Ask to Move to Another State With the Child? 

Posted by Thomas Huguenor on June 24, 2021 in Child Custody

Maintaining a visitation schedule while also juggling the demands of work, health, and your relationships can be difficult for a divorced parent. Parents with visitation often have to fight hard to maintain relationships with their children and prove their commitment to the court-ordered visitation plan.

However, when you encounter a new job opportunity or situation where you may need to move out of state, you may face many hurdles with your visitation agreement. While a San Diego family court may allow you to move out of state and keep your rights to visitation – which may include an adjusted schedule or online visitation – you should also consider petitioning for custody.

Who Can a Parent Move a Child Out of State?

As a non-custodial parent with visitation, your right to move out of state is limited compared to that of the custodial parent. When a parent has sole custody of a child, she has the right to move out of state without court approval. However, the non-custodial parent can file a petition to block the move with the court if he can show the move will negatively affect the child. If you can show that the move could damage your relationship with your child or that the child would be losing access to an important support system (family, friends, school, medical or psychiatric care, etc.), then a judge may order that the child remain within the state.

In turn, if you wish to move out of state with your child, then you must first establish custody. Even if you share joint custody, a judge may consider allowing you to move out of state and maintaining a custody plan if you can show it is feasible and will not negatively influence your child’s development. If you only have visitation, then the court will only allow you to travel out of state with the child if you have permission from the custodial parent and for a temporary period, such as a vacation. For a more permanent solution, you will need to be granted custody.

Establishing Custody as a Non-Custodial Parent

If you wish to modify your visitation order to receive sole or joint custody of your child, you must prove in court why it would be beneficial for your child.

First, you must consider why you were only granted visitation in the first place. Maybe you were not aware of the child’s birth and did not receive visitation until your child was older, or the court barred you from having custody due to a substance abuse problem or mental illness. In either situation, you will need to show that you have overcome these issues and have established a continuous and meaningful relationship with your child.

Showing a court that you are responsible enough to have custody and that it will benefit your child will require some effort. You should pull records of your visitation schedule, reports from social services or court officials, psychiatric evaluations, and other documents that can show you are committed to maintaining a healthy relationship with your child. With substantial evidence and the help of a skilled attorney, you may be granted joint custody with the other parent, which may give you partial physical and/or legal custody.

Emergency Scenarios Where You Can Receive Custody

In more serious situations, the family court may grant you emergency custody if it feels that the custodial parent is a danger to your child. Emergency custody is typically granted to a visitation parent when the custodial parent:

  • Has a record of abuse
  • Has substance abuse issues or mental health issues that endanger the well-being of your child
  • Has committed a crime
  • Violated court-ordered visitation
  • Has abandoned the child
  • Committed parental alienation

Emergency custody may be temporary until the court has completed an investigation and evaluated the custodial parent’s actions, after which it may grant you sole custody to take care of your child.

Petition for a Move-Away Order

Only after you have established custody can you petition to move out of state with your child. Judges can allow parents to have joint interstate custody, in which the child moves between two homes in separate states, but they will want to be assured that it will not impact the child’s development. Interstate custody agreements can include alternating physical custody between the school year and vacations.

If you petition to receive custody, you should disclose to the court your plans to move out of state. Hiding this fact can negatively affect your petition down the line, especially if the other parent chooses to fight the move-away order on the grounds that you misled the court. The best scenario is to come to an agreement with your child’s other parent. If you and the other parent agree to you moving out of state while maintaining a custody schedule, the court may allow you to keep custody and move out of state. However, in high-conflict child custody cases, you can expect an uphill battle and should trust your case to an experienced attorney.

Lastly, if you have sole custody, then the court will be more likely to allow you to move out of state, even if the other parent has visitation. As mentioned earlier, non-custodial parents do have the right to fight these orders, but the court may still grant a move-away order if the other parent was abusive or committed domestic violence against you.

Establishing Custody and Moving Out of State

Throughout your entire case, you will want to work with an experienced San Diego family law firm that is familiar with move-away orders and interstate custody. Since 1975, Huguenor Mattis, A.P.C., has provided dedicated representation to parents in complex custody matters, achieving the best possible results for our clients. Thomas M. Huguenor has been a Board-Certified Specialist in Family Law since 1981. If you need assistance establishing custody and receiving a move-away order from a San Diego family court, contact Huguenor Mattis, A.P.C., today at (858) 458-9500 for a free consultation.

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