Unwed Mother Wants to Move to Be with Family, Father is Against Her Leaving the State

My question involves a child custody case from the State of: California

Couple was never married. They aren't together. He started dating someone right after the child was born. No custody agreement in place. Mother stayed instead of moving back east so the father could have a relationship with his child. The father has made the situation with the mother worse who is already dealing with postpartum depression. She wants to move back east so she can have solid emotional support. He doesn't want her to leave with the child. He threatens to file for full custody and take the child away if she moves. What are her rights?

Has parentage, custody or support been established by the court?

Mom can petition for custody and ask the court to also authorize her to move. Dad can also petition for custody, in which case they will either settle their dispute or have it resolved by the court.

If there are no current court orders in place establishing the fathers parental rights, and the parents were never married, then mom has a legal right to relocate her child to Timbuktu or BFE if she wishes.

CA is one of few states with statutes that afford the custodial parent a presumptive right to relocate their child, and places the legal burden of proving otherwise on the non-custodial parent.

That said, it would be advisable for mom to speak with a couple of family law attorneys in her area to discuss the specifics of her situation and her legal rights before taking any action.

Especially given the cost and burden of litigating a custody case after you move across the country, and the possibility that the court will order the child returned pending the resolution of some or all of the custody proceedings.

Definitely talk to more than one attorney. While some may advise opening a case in CA for custody, others may advise just packing and leaving without further ado. While both may be legally correct, which answer is best depends on the particulars of each case.

If unmarried mom had a legal right to relocate without permission and has already left the state PRIOR to dad filing an initial suit for custody in CA, it is highly unlikely the court will order the child returned pending the resolution of the case. Not unless the court is also willing to hand the child over to dad pending resolution of the case. Even less so since CA has statutes that clearly give the custodial parent a presumptive right to relocate, and mom has a family support group in her new location that she would not have back in CA.

If dad does file for custody in CA after mom leaves, CA will have jurisdiction over the child, and CA will eventually determine where the child may reside. IF dad is eventually able to rebut the statutory presumptions that the custodial parent should be allowed to relocate, the court should then order the child returned.

If dad drags his feet or lacks the financial means to file suit for his custodial rights in CA before mom and child become residents of the new state, the new state will acquire jurisdiction over the child.