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In a move away case, is it the custodial parent's legal burden to prove to the court that the move is necessary for the children or is it the non-custodial parent's legal burden to prove that the move is harmful for the children's best interest?

Which would weigh more than the other in getting the children to move away with the custodial parent?

From everything i have seen and my own personal experience it is up to the custodial parent to prove that the move is in the best interest.

But, alot depends on the situation....If the CP has already moved, and the NCP was aware of the move and did not go to court to block the move, it would be the burden of the NCP to prove that the children need to be moved back home.

If the CP has intentions to move and the NCP goes to court to prevent the moveaway--the CP would be obliged to prove why it is in their best interest.

Timing, timing, timing....what is your situation

I am the CP and primary caretaker for my children for the last several years of their lives and I am seeking permission to take my children. We already have an exisiting custody order but due to the exparte hearing, the judge asked for mediation. The mediator made a very unprofessional and biased report so out of that, there is a temporary order for the children to be with the father and I am seeking permission to take my children. The NCP has child support arrears and has no verifiable income, claiming that he is self employed.

Whoa....there's got to be much more to the story.

Yes but due to the anonymous nature of this forum, I can not disclose much. I did not understand that child support had nothing to do with custody. Isn't it breaking the law if you don't pay child support? How can authorities give children to a person who can barely provide the most basic fundamental things for his children?

You cannot deny visitation based on unpaid child support, nor can you stop paying child support if you aren't receiving visitation.

They are two seperate issues.

We can't tell you why the court would give your children to your ex without any information.

In that case, I know what went wrong. Is there any chance to overturn this "temporary" order? I have a settlement conference and trial coming up. I wonder if there is still a chance to regain my custodial parenting and maintain primary provider.

What I find most appalling is that the court is all about the "best interest of the children" but my teenage daughter's statement to be with me was ignored. Wouldn't that mean my daughter's right to her best interest is violated? If he can't provide for them, how would this be in the "best interest of the children"? All of this is ignored. It's very frustrating!

California family code 3042(a)If a child is of sufficient age and capacity to reason so as to form an intelligent preference as to custody, the court shall consider and give due weight to the wishes of the child in making an order granting or modifying custody.

and

California Family Code Section 3011 states,

3011.In making a determination of the best interest of the child in a proceeding described in Section 3021, the court shall, among any other factors it finds relevant, consider all of the following:

(a) The health, safety, and welfare of the child.

I never argued with you about WHY your ex had your children. I said that you can't expect the readers on this site to answer confidently why they think a judge ordered them to his custody, without having any information.

Apparently the judge felt the heath, welfare and safety of your children wasn't an issue at your ex's home. And for whatever reason they took them from your custody, maybe that was more of an issue. (Whether it be based on mediators incorrect reccomendation as you stated)

As far as your daughter deciding she wanted to live with you, it says right there in the code you quoted, the court shall give due weight to the wishes of the child. A child doesn't always know what's in their best interest, so just because your daughter said she wanted to live with you, isn't reason for the court to place her in your home.

Whether or not you want to devulge the info to the rest of the board, there was a reason, in the courts eyes for removing your children from your home. Courts don't usually do this unless there is a significant change in circumstances. Unless we know the ins and outs of the case, we can't give you an idea of why the judge might have done this.

All I was saying is that custody and child support are two separate issues. One cannot deny visitation due to lack of support. I didn't say that the judge made a good decision putting your children with your ex even if he "can't provide" for them. I answered why you can't deny visitation on unpaid child support.

Law is not always logic. One would think not paying child support is breaking the law so why would the court give custody to someone who has no money to raise their children. Unbeknownst to me, I made the mistake of mixing the two: support and custody together. Who would've known unless being at the mercy of the court? So now I know. I thought if he had no means to raise them, why would the court give the children to him? So it was an honest mistake in the game of "law". I felt that he should not get visitation unless he pays up the arrears while I move away with the children.

The mediation report is a whole other story. Talk about character assassination! LOL...She burned me to death in her report. Censored me, omit my defenses, totally biased! And so during the hearing, out of frustration, the judge hands over my kids to him for a temporary order and if I'm not happy, go to trial.