April 6, 2020

This is a photo of a distraught woman looking out the window.

Potential family law clients in California will invariably recite during the initial consultation that they were told by a friend, neighbor, estate planning attorney…etc. that they cannot move out of the family home before or during their divorce or paternity case. The reasons given are a range of their ownership interest in the house will be forfeited (not true, not California law), they will be viewed as abandoning their house and face legal consequences (not true, not California Law), they will be viewed as abandoning their family and lose parenting time if child custody is an issue (not true, not California Law).The truth is, you can and probably should leave the family home in most situations. For purposes of this post, I focus solely on the impact of moving out of the family home if child custody is an issue in your divorce or paternity case.

California Family Code section 3046 states as follows:

(a) If a party is absent or relocates from the family residence, the court shall not consider the absence or relocation as a factor in determining custody or visitation in either of the following circumstances:

(1) The absence or relocation is of short duration and the court finds that, during the period of absence or relocation, the party has demonstrated an interest in maintaining custody or visitation, the party maintains, or makes reasonable efforts to maintain, regular contact with the child, and the party’s behavior demonstrates no intent to abandon the child.

(2) The party is absent or relocates because of an act or acts of actual or threatened domestic or family violence by the other party.

(b) The court may consider attempts by one party to interfere with the other party’s regular contact with the child in determining if the party has satisfied the requirements of subdivision (a).

(c)This section does not apply to either of the following:

(1)A party against whom a protective or restraining order has been issued excluding the party from the dwelling of the other party or the child, or otherwise enjoining the party from assault or harassment against the other party or the child, including, but not limited to, orders issued under Part 4 (commencing with Section 6300) of Division 10, orders preventing civil harassment or workplace violence issued pursuant to Section 527.6 or 527.8 of the Code of Civil Procedure, and criminal protective orders issued pursuant to Section 136.2 of the Penal Code.

(2) A party who abandons a child as provided in Section 7822.

(emphasis added)

3046(a)(1) points out that the absence or relocation from the family residence is of short duration. It would be a good idea to have a Request for Orders for Child Custody and Visitation filed and pending with a Court date at or near the time you move out. Further, you need to maintain contact with your child(ren);to this effect,I wouldconsider keepinga separate calendar to show this contactand make entries on the calendarat or near the time the contact occurs. Continue doing everything for your child that you did beforemoving outsuch as attending events, school meetings, medical appointments and the like to demonstrate yourinterest in your child(ren).

If there is domestic violence in your case,you need to work closely with your attorney to accomplish contact with your children to ensure that both you and your children are safe.

If once you move out, the other partyinterferes with your contact with your childrenin any way, you need to make certain you are keeping accurate, admissible records of the other parties’behavior.Again, the calendar is great for this and so arerecords such astext messages from the other party and e-mails.But,these communicationsmustbe carefully crafted and handled. It is easy for one party to cut off contact with the children once the other party moves out. It is not uncommon for thesituationtoquickly spiralinto the “out” party issuing threats to the “in” party overbeing cut off from the children; the situation then may result in restraining orders being issued against the “out” party depending on the severity of the threat. What needs to be embraced in these situations is patience.

Some people need to move out of the family residence to give themselves a break, mental peace, calm, and some distance from the other party. I think what I have demonstrated in this blog is that there is nothing wrong with this decision as long as accurate records arekept,and communications are handled with cool heads and patience.As these matters are delicate and very fact-specific,I would caution anyone contemplating a move out to first meet with an experienced family law attorney before making this move.Because of COVID,family law attorneys, including myself, are conducting client meetings via Zoom and the like to remain available to help clients. So, keep this in mind if you are in such a situation and need advice; plenty of experienced professionals are available to help you.

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