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Posted on May 22, 2016 in Child Custody

When the parent in a San Diego child custody case with the most child sharing time moves across the country, extra efforts must be made for the child or the children to keep frequent and continuing contact with the parent and other family members who remain behind.

A move-away by the custodial parent[1] diminishes the percentage[2] of calendar time spent by the child with the parent who remains behind.  This has the double whammy or triple whammy of causing an increase in the child support payment when the parent left behind has been ordered to pay support.  A second unfortunate effect of the move-away is the negative hit to the amount of time that the child is able to spend with the parent left behind.  The frequency of those periods of access to the child diminishes and the stability of the parent/child relationship is jeopardized.  The third negativSan Diego child custodye impact of a move-away is the cost of transportation.  When the parent moves two thousand or three thousand miles from the west coast to the mid west or from the west coast to the east coast, round trip tickets to fly frequently cost hundreds of dollars for each visit.  If the children are grade school age or younger, the parents may reasonably resist allowing them to fly alone and thus, the cost of a round trip ticket is doubled or tripled for the escort.  Even when the move is regional and a two hundred mile to four hundred mile distance with a lack of airport access may make driving more practical, the cost of gasoline and the use of an automobile are significant deterrents to visitation.

THE GUIDELINE

In 1992 the infamous Guideline of the California Family Code became effective.  It mandated adherence by the courts.[3]  In the early years following the implementation of the Guideline, the courts tended to follow the mathematical formula almost with a lockstep procedure.  As a point though, relief for transportation costs may be found in California Family Code §4057(b)(5), which says,

“Application of the formula would be unjust or inappropriate due to special circumstances in the particular case.  These special circumstances include, but are not limited to the following:”

The special circumstances listed do not include sharing the costs of transportation in a move-away case, but appellate courts have recognized that code section as providing just this kind of relief.

In the appellate case of Wilson v. Shea (2001) 87 Cal.App.4th 887 the trial court was found to have discretion to reduce Guideline support to allow the creation of a travel fund to be managed by the paying parent.  To do this, the trial court had to compute the regular Guideline amount first, take evidence of the cost of the transportation, and then note the special circumstance.

In Wilson the court found that given the importance of contact to the child with the parent left behind, and the practical necessity of a travel fund when a case presents the special circumstance of out-of-state visitation, the promotion of frequent and continuing contact with both parents after the parents have separated is certainly a factor that may mean the rote application of the Guideline formula is unjust or inappropriate in some cases.

This has nothing to do with another sort of case where the parent moving away has some kind of malicious intention to disrupt the relationship of the child with the parent left behind.

This is not to say that one hundred percent of the travel cost should be paid from the child support that would otherwise be ordered.  It simply gives guidance to parents in an unfortunate move-away situation that they should try to be creative and reasonable and flexible with each other while using the child support as a resource to help cover the costs of transportation.  In a case with a shorter distance, it could mean that each parent would travel halfway to hand off the child to the other parent.

When faced with a move-away decision, both parents would be encouraged to use reasonableness and to look at the unfortunate situation from the eyes of the child who will certainly want to maintain the stability of the relationship that the child has enjoyed with the parent left behind and with the other members of the family left behind.

Attorney Scott Family Law, CFLS, has been litigating San Diego child custody cases that include move-away requests since 1981. Mr. Scott is a Certified Family Law Specialist with more than 35 years of experience. Please contact the Law Office of Scott Family Law at 858-974-4900 to set up a consultation appointment with Mr. Scott.

[1] California Family Code §7501

[2] California Family Code §4055

[3] California Family Code §4052