I recently consulted with a father who told me his first priority was to have a substantial time share with his young daughter, who was living with her mother in the family residence. The father had already moved out of the family residence several weeks earlier in order to reduce conflict between himself and the child’s mother. There was no violence between the parents and no justification for any emergency orders. Therefore, until the father can get a hearing on a Request for Order, which may take as much as three months, what are the father’s rights?

The simple answer is that neither party has superior custodial rights(Family Code Section 3010(a)). Moreover, except in cases involving an immediate harm to the child (Family Code Section 3064), courts are not willing to enter custody orders without a noticed hearing and usually a session with a mediator (Family Code Section 3064). In many cases, the party remaining in the home is not willing to allow the party attempting to move out to take the child. It is for this reason that attorneys advise many clients not to move from the family residence until such time as a custody order has been obtained. The obvious strategy is to deny the other party the ability to assert that a “status quo” arrangement has been established because of the physical separation of the parents.

Family Code Section 3046 attempts to avoid the result of favoring the remaining parent if the absence or relocation is of short duration as well as during that time the relocated parent makes reasonable efforts to maintain contact with the child. Unfortunately, without a court order for custody or visitation, parents will find law enforcement of little assistance if a custody dispute develops. If law enforcement is called on in such a dispute, it will be up to the officer to make a determination based on the conduct of the parties, which is extremely difficult. In most cases, the officer will advise the parties to go to court to resolve their dispute.

In conclusion, before relocating without a custody order, a parent needs to carefully consider the effect of relocation on maintaining frequent and continuing contact with the child. It is sometimes better to remain in the residence until custody and visitation orders can be made by the court. However, for one of several reasons, it may not be a good idea to remain in the residence. When that occurs, a parent who leaves the residence should make every effort to maintain reasonable contact with the child. Where the remaining parent frustrates this effort, the relocating parent can sometimes persuade the court to issue an emergency order, or in the alternative, to accelerate the hearing date and expedite mediation. At least this effort, while expensive, does establish the relocating parent’s desire to remain active in the child’s life. Since there is no “one size fits all” answer to this situation, a parent who is planning to relocate without a custody order should discuss his or her decision with an experienced family law attorney before taking action.

I should add that all of the above is going to turn out differently if there has been domestic violence. If a parent leaves because of domestic violence by the other parent, then a presumption arises because the perpetrator of violence should not have custody or visitation (Family Code Section 3044) and an emergency order can be obtained. Although not part of this blog, there is a separate set of rules for parents who are absent due to military duty which interferes with custody or visitation (Family Code Section 3047).

If you want to hear more about the latest information on custody and the family residence, please contact our office to schedule a consultation. The Law Office of Bawden and Kochis also handles family law issues regarding adoption, annulment, mediation, domestic violence, child custody, child and spousal support as well as pre-marital and post-marital agreements. Telephone (909)792-0222, or email us at [email protected]

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