Can a Non-Custodial Father or mother Get Custody and Transfer Out of State?

blog home Custody of children Can a visiting parent ask to move the child to another state?

Posted by Thomas Huguenor on Jun 24, 2021 in Child custody

A divorced parent can find it difficult to maintain a visiting schedule while balancing the demands of work, health, and relationships. Visiting parents often struggle hard to maintain relationships with their children and demonstrate their commitment to the court-ordered visit schedule.

However, if you come across a new job opportunity or situation that may require you to move out of a state, you can face many hurdles with your visiting arrangement. While a San Diego family court can potentially allow you to move out of a state and retain your visitation rights – which can include an adjusted schedule or online visit – you should also consider filing for custody.

Who can a parent move a child out of the state?

As a visiting non-custodial parent, your right to leave the state is restricted compared to that of the custodial parent. When one parent has sole custody of a child, they have the right to move out of the state without judicial approval. However, the parent who has no custody can file an application to the court to block the move if they can prove that the move has negative effects on the child. If you can show that moving could harm your relationship with your child, or that the child has access to an important support system (family, friends, school, medical or psychiatric care, etc.) the child will remain in the state.

In turn, if you want to move out of the state with your child, you must first establish custody. Even if you share joint custody, a judge may consider allowing you to move out of a state and maintain a custody plan if you can demonstrate that it is doable and will not adversely affect your child’s development. If you are only visiting, the court will only allow you to leave the 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 need to get custody.

Establishing custody as a non-custodial parent

If you want to change your visiting arrangements to have sole or joint custody of your child, it is up to you to prove in court why it would be beneficial for your child.

First of all, you need to consider why you were only allowed visitors in the first place. Perhaps you did not know about the child’s birth and did not have visitors until your child was older, or the court denied you custody because of a drug problem or mental illness. In both situations, you need to show that you have overcome these issues and established an ongoing and meaningful relationship with your child.

It will take some effort to show a court that you have enough custody responsibility and that it benefits your child. You should keep a record of your visiting schedule, reports from social services or court officials, psychiatric reports, and other documents that show that you are committed to a healthy relationship with your child. With solid evidence and the help of a knowledgeable attorney, you may be granted joint custody with the other parent, potentially giving you partial physical and / or legal custody.

Emergency Scenarios In Which You Can Get Custody

In more serious cases, the family court can give you emergency care if it believes that the parent with custody is a danger to your child. Custody is usually granted to a visiting parent if the parent with custody:

  • Has evidence of abuse
  • Has substance abuse or mental health problems that are threatening your child’s wellbeing
  • Has committed a crime
  • Violation of court-ordered visits
  • Left the child
  • Dedicated parental alienation

Emergency care may be temporary until the court has completed an investigation and assessed the actions of the custodial parent. After that, it can give you sole custody of your child.

Petition for an exit order

Only after you have established custody can you and your child move out of the state. Judges can allow parents to have joint interstate custody where the child moves between houses in different states, but they want to be sure that this does not affect the child’s development. Intergovernmental custody agreements can provide alternating physical custody between the school year and vacation.

When applying for custody, you should disclose to the court your plans to move out of the state. Hiding this fact can be detrimental to your petition down the line, especially if the other parent chooses to contest the evacuation order for misleading the court. The best thing to do is to come to an agreement with the other parent of your child. If you and the other parent agree to move out of the state while maintaining a custody plan, the court may allow you to maintain custody and move out of the state. However, in conflicted custody cases, you can expect an uphill battle and should entrust your case to an experienced lawyer.

Finally, if you have sole custody, the court will be more likely to allow you to move out of the state even if the other parent is visiting. As mentioned earlier, if the other parent has abused or domestic violence perpetrated against you, the parent without custody has the right to contest these orders, but the court can still issue an evacuation order.

Establish custody and move out of the state

Throughout your case, you should work with an experienced family law firm in San Diego who is familiar with relocation assignments and interstate custody. Huguenor Mattis, APC, has represented committed parents in complex custody matters since 1975 in order to achieve the best possible results for our clients. Thomas M. Huguenor has been a specialist lawyer for family law since 1981. For assistance with establishing custody and obtaining a relocation order from a San Diego family court, contact Huguenor Mattis, APC, at (858) 458-9500 today for a free consultation.

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