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Child Move Away Appeal


To understand how a San Diego or greater California child move away appeal arises, it is important to understand how the court approaches a move away issue.  California's statutory scheme governing child custody and visitation determinations is set forth in the Family Code.  Under this California scheme, the overarching concern is the best interest of the child. For purposes of an initial custody determination, the court is afforded the widest discretion to choose a parenting plan that is in the best interest of the child.  While the court may consider all relevant factors it is bound to consider the child's health, safety, and welfare, any history of abuse by one parent against any child or the other parent, and the nature and amount of the child's contact with the parents.


Once the trial court has entered a final or permanent custody order reflecting that a particular custodial arrangement is in the best interest of the child, “the paramount need for continuity and stability in custody arrangements—and the harm that may result from disruption of established patterns of care and emotional  bonds with the primary caretaker—weigh heavily in favor of maintaining” that custody arrangement.  The California courts have employed the changed circumstances rule in recognition of that interest.  Under the changed circumstance rule, custody modification is appropriate only if the parent seeking modification demonstrates a significant change of circumstances indicating that a different custody arrangement would be in the child's best interest. 


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Dennis Temko, Esq.

Law Office of Dennis Temko
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A move away request, when there exists a permanent custody order, is similarly governed by the changed circumstances test (a move-away case involving joint physical custody is treated differently.) What is important to keep in mind with a move away request where there has been a permanent order is the custodial parent has a presumptive right to change the child’s residence. The custodial parent’s mere move away request does not justify a change in custody.  The noncustodial parent  may oppose the relocation and seek custody modification based on a showing of (1) a substantial change of circumstances rendering it “essential or expedient for the welfare of the child” to change custody and (2) the custodial parent's proposed relocation will be detrimental to the noncustodial parent's relationship with the child. Once the non-moving party has met his or her changed circumstances burden the court decides what is in the child’s best interest.   


The San Diego or greater California child move away appeal begins when either party is unhappy with the court’s custody award.  More often than not the move away issue is governed by the abuse of discretion test, although that is not always the case.  As a San Diego based appellate attorney I can evaluate your move away appeal to determine whether, as it may be, there was an abuse of discretion.  I represent both appellants and respondents. If you wish to discuss the merits of your appeal or response, please contact me.   

Viewing the presentations, articles, other content, or contacting me/you through my web site does not establish an attorney client relationship. I will not file a notice of appeal nor calculate the time in which a notice of appeal must be filed by until I have received a signed retainer agreement.  Warning, the time from which to file a notice of appeal is statutory. The time in which you have to appeal may pass between when you first contact me and when an attorney client relationship is formed upon when I receive a signed retainer agreement .  Until a retainer agreement is signed and received by me, it is YOUR responsibility to insure your appeal is filed within the statutory period.  The articles on this website are not legal advice and should not be used in lieu of an attorney.  The accuracy of articles and information on this site cannot be relied upon.

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