If a parent has sole custody of the children, can they move away with the kids without the other parent’s permission?

You ask a question that is really hitting the bull’s eye of what has been one of the most hotly contested areas of family law over maybe the last two decades of my practice, and that’s the concept of moving children away from an existing geographic area where likely both parents are located.

There has been a lot of evolving law in both California and Nevada on this point. I think where we stand now is essentially as follows, if one parent has primary physical custody, again remember we’re talking about a residential schedule, that if that parent has primary physical custody, they will have the presumptive right to relocate the residence of the children. The parent who objects to that would have the opportunity to come into court and seek to at least temporarily delay that relocation until a more thorough and permanent decision can be made about that.

Now understand the courts, the family courts, are never concerned about the rights of parents to move. Parents will have a constitutional right to move wherever they want, the court is focusing on the relocation of minor children. It’s true to say that most times the custodial parent, while free to move on his or her own part, will not move without the children, that distinction is important.

The courts in both states will typically look at the best interest of the children in terms of what the relocation will offer them, what the new residence will mean to them, and balance that against what it will mean to be at distance, and likely have less contact with the remaining parent. If somebody has joint physical custody status then they would have to go to the court and get permission, or the permission of the other parent of course makes court involvement unnecessary, but they would have to get permission from the court to move. So, the distinction between sole physical custody and joint physical custody is very important when you’re talking about a move away case.

Leslie Shaw practices family law in both California and Nevada, and has been involved in close to 1,000 family law matters largely involving litigation throughout his 40 year career. He is also a Certified Family Law Attorney, a status granted by the California Board of Legal Specialization.