Los Angeles, CA–One of the unfortunate types of letters I often receive this time of year is the move-away letter. That’s when the custodial parent has decided to move the child away from the noncustodial parent–often ending that parent’s meaningful role in their children’s lives. The noncustodial parent writes, seeking a way to keep his or her children from being moved away.
Since parents usually like to move during the summer so they don’t interfere with schooling, the move-away requests are often made and fought out in the late winter and early spring. In many, many cases, noncustodial parents (usually fathers) who were spending 10 or 12 days a month with their children are reduced to short, once a month visits–if they’re lucky.
Move-aways are an issue we’ve devoted a lot of attention to. We worked with the California Alliance for Families and Children in running two successful campaigns to preserve the California Supreme Court’s 2004 LaMusga move-away decision. That decision affirmed that courts have the power to restrain moves which run counter to children’s best interests, and several thousand of you participated in those campaigns. To learn more, see my co-authored column Is a Pool More Important than a Dad? (San Francisco Chronicle, 5/4/04) and click here.
Steven Carlson is the author of How to Win Child Custody, and has devoted a lot of time to the move-away issue. He has an interesting article which recaps the various move-away cases and provides an updated overview of the situation with move-aways.
The “Move-Away” Case
By Steven Carlson
Parents who share custody of their children face a difficult dilemma when one parent wants to relocate or move away to a relatively distant location thereby effecting a Move-Away Case. Recent California cases indicate that in custody situations, if one parent is functionally the primary parent and the children have been living primarily with that parent, that parent is likely to be permitted by the courts to move away and take the children along, even if he or she agreed earlier not to move away or relocate.
California Family Code section 7501 provides, “A parent entitled to the custody of a child has a right to change the residence of the child, subject to the power of the court to restrain a removal that would prejudice the rights or welfare of the child.”
Although this statute appears to be straightforward, the interpretation of it has not been. The right of a custodial parent to move away with a minor child when doing so would adversely affect the noncustodial parent’s visitation has been the subject of many diverse and contradictory appellate decisions over the last decade. Many courts approved restrictions on the parent’s right to move away or relocate with the child and imposed burdens such as proving that move away was “necessary” or “expedient, essential or imperative.” Some devised compound tests for move away cases to guide the trial courts in making the determination. Others, on the other hand, simply held that the custodial parent was presumptively entitled to move away.
When there appears to be a shared custody or joint physical custody arrangement, where the child spends a significant amount of time with each parent, an exception can be raised in a move away case, known as the “footnote 12” exception to Burgess (see Marriage of Burgess). In “footnote 12” of the Burgess decision the court held that where there is a shared custody relationship the court would have to make a new, or “de novo,” determination regarding custody based upon the best interests of the child.
Regarding notice of a relocation or move away case, California Family Code Section 3024 states, “In making an order for custody, if the court does not consider it inappropriate, the court may specify that a parent shall notify the other parent if the parent plans to change the residence of the child for more than 30 days, unless there is prior written agreement to the removal. The notice shall be given before the contemplated move, by mail, return receipt requested, postage prepaid, to the last known address of the parent to be notified. A copy of the notice shall also be sent to that parent’s counsel of record. To the extent feasible, the notice shall be provided within a minimum of 45 days before the proposed change of residence so as to allow time for mediation of a new agreement concerning custody. This section does not affect orders made before January 1, 1989.”
The following chronology of California move-away case summaries are examples of how the California courts have ruled on “move-away” cases in the past and are provided for informational and educational purposes only. The information provided should not be construed or substituted for legal advice on your move away case. Each move away case must be analyzed on a case by case basis on its own set of facts. For legal advice about move-aways or your particular move away case, you would be wise to consult a family law attorney in your jurisdiction who has experience and demonstrated success with representing clients on move away cases.
Chronology of Important “Move-Away” Cases in California
Year Case Findings
1976 Marriage of Ciganovich (1976) 61 Cal.App.3d 289 If the purpose of the move is to frustrate or deny visitation, then the move is not in the child’s best interest.
1979 Marriage of Carney (1979) 24 Cal.3d 725 The court first determines whether there has been a change of circumstances, then whether a change of custody is necessary or desirable for the child’s best interest.
1986 Burchard v. Garay (1986) 42 Cal.3d 531 , 229 Cal.Rptr. 800; 724 P.2d 486 If the custody arrangement is the result of a prior court order, it is presumed the existing order is in the child’s best interest.
1986 Marriage of Rosson (1986) 178 Cal.App.3d 1094 , 224 Cal.Rptr. 250 The right to frequent and continuing contact with a child by the parent is an element in determining custody and visitation consistent with the child’s best interest.
1990 In re Marriage of Fingert (1990) 221 Cal.App.3d 1575, 271 Cal.Rptr. 389 A parent had been ordered to move to another county as a condition of continued custody of a child.
1991 Marriage of Carlson (1991) 229 Cal.App.3d 1330 , 280 Cal.Rptr. 840 The loss of the practical ability to visit with the child is an important and relevant factor in determining whether a move is in the child’s best interest.
1992 Marriage of McGinnis (1992) 7 Cal.App.4th 473, 479 The non-custodial parent’s (NCP’s) ability to exercise visitation is an important, but not the only, factor in determining the child’s best interest.
1993 In re Marriage of Roe (1993) 18 Cal.App.4th 1483 , 23 Cal.Rptr.2d 295 The custodial parent seeking to relocate with a minor child must establish that move is “necessary” and in child’s “best interest”.
1994 Marriage of Battenburg (1994) 28 Cal.App.4th 1338, 1345 Where there is pre-existing and successful shared parenting arrangement, the burden of proof is on the moving party to show that the move is necessary, expedient, and imperative.
1994 In re Marriage of Selzer (1994) (supra) , 29 Cal. App. 4th 637 The Court of Appeal affirmed the trial court’s determination that the custodial parent’s decision to move from Ukiah to Santa Rosa–a one-hour commuting distance– did not require a change in physical custody
1996 Marriage of Burgess (1996) 13 Cal.4th 25, 51 Cal.Rptr.2d 444, 913 P.2d 473 After a joint custody determination based on the child’s best interest, the moving parent need not demonstrate that the move is necessary as a condition of maintaining custody. However, when parents have joint physical custody, the trial court must determine de novo what arrangement for primary custody is in the child’s best interest, qualified as “footnote 12” for a different analysis.
1996 Brody v. Kroll (1996) 45 CA4th 1732, 53 CR2d 280 When courts determined that the unmarried parents were sharing joint physical custody of a young child and mother wanted to move to Connecticut for a job opportunity, District Court of appeal held that the burden of proof fell on the mother to prove the move was in the child’s best interest [first case to apply principles set forth by Burgess].
1996 Cassady v. Signorelli (1996) 49 Cal.App.4th 55, 56 Cal.Rptr.2d 545 A move-away request can be denied if it serves to frustrate the non-custodial parent’s (NCP’s) right to joint custody and visitation. In the instant case, mother told the court that when she got to Florida, she intended to work as a “parapsychologist”. Trial court denied the mother’s request, finding that the mother’s real reason to move was to frustrate the father’s ability to see the child.
1997 In Marriage of Whealon (1997) 53 CA4th 132, 61 CR2d 559 The non-custodial parent (NCP) did not demonstrate a change of circumstance necessary for a change of custody. The amount of time the NCP has with the child has emerged as the pivotal issue in determining who has the legal burden before the court. In the instant case, the father had the child one night a week, alternating weekends and holidays. Court granted mother’s request to move to New York where she had a job waiting for her. The court observed that California Family Code Section 7501, enacted in 1993, provides that, “a parent entitled to the custody of a child has a right to change the residence of the child, subject to the power of the court to restrain a removal that would prejudice the rights or welfare of the child.
1997 Ruisi v. Thieriot (1997) 53 Cal.App.4th 1197, 62 Cal.Rptr.2d 766 The court held that, in light of Burgess, the question for the trial court on remand was not whether the custodial parent would be permitted to move; the question was what custody arrangement should be made thereafter.
1998 In re Marriage of Condon (1998) 62 Cal.App.4th 533, 73 Cal.Rptr.2d 33 When moving to a foreign country, the moving parent must demonstrate that the de facto termination of visitation (caused by the large geographical distance) would be in the child’s best interest. Further, in granting such a move, the court can require the custodial parent to concede to the jurisdiction of California, post a security bond and order forfeiture of support payments in the even of a violation of the custody order.
1998 In re Marriage of Biallas (1998) 65 Cal.App.4th 755, 76 Cal.Rptr.2d 717 It clarified that Burgess applies to stipulated custody arrangements or orders. Also showed that actual timeshare is more important than the existing decree where the two are different.
1998 In re Marriage of Edlund and Hales (1998) 66 Cal.App.4th 1454, 78 Cal.Rptr.2d 671 The court first determines if a move is based on sound reason; then the burden of proof falls on the non-custodial parent (NCP) to demonstrate that the move is not in the child’s best interest.
2001 In re Marriage of Williams (2001) 88 Cal. App.4th 808 (2nd Dist. 2001) In this family law move-away case the mother had been a full-time homemaker of four children until she and her husband decided to separate, when she returned to work. When he moved out of the house a few months later, they shared a nanny and alternated custody on a weekly basis for approximately half a year until the custody order was entered. She was awarded custody of two children, who accompanied her to a new marriage in Utah, and custody of the other two children was awarded to their father. The Court of Appeal set the decision aside and returned for consideration of the children’s best interests; the trial court had not considered what effect divided custody would have on them.
2001 In re Marriage of Bryant (2001) 91 Cal. App. 4th 789 In an initial custody determination, the Superior Court in the County of Santa Barbara, California, awarded joint legal custody with primary physical custody to the mother (respondent) who intended to move with the children to New Mexico and awarded liberal visitation to appellant father. The father appealed. The trial court did not err in failing to evaluate the reasons for the move, and it satisfied the policy under Cal. Fam. Code § 3020 of assuring frequent and continuing contact by awarding liberal visitation. Having found that the mother was not acting in bad faith and that it was in the best interests of the children for custody to be with her, the trial court was bound to rule as it did.
2002 In re Marriage of Lasich (2002) 99 Cal. App. 4th 702 In an international move-away child custody case, the Superior Court of Sacramento County, California, granted respondent mother’s request to move with the parties’ minor children from Sacramento County to Barcelona, Spain. Appellant father sought review of the order. Because the mother was the primary physical custodian, the presumption of Cal. Fam. Code § 7501 applied. Thus, the mother was entitled to change the children’s residence. The father failed to show relocation would result in detriment to the children.
2002 In re Marriage of Richardson (2002) 102 Cal. App. 4th 941 Now, parents who have less than the equal timeshare that will trigger Burgess footnote 12 and a de novo review have another way to gain that review in a move-away case. Of course, gaining a de novo review is not an automatic guarantee of being able to prevent a move. Before this, the soon-to-be-left-behind parent who lacked the requisite timeshare wasn’t able to do much unless he or she could prove that the moving parent had an improper motive or a frivolous purpose for the move. Thanks to Richardson, that parent can seek a full custody evaluation, bring in expert testimony regarding the effect of the move on the child, and present evidence to demonstrate the full nature of his or her relationship with the child. All of that is good news for the non-moving parent. But this case isn’t such good news for the moving parent.
2003 In re Marriage of Campos (2003) 108 Cal. App. 4th 839 Second District holds that trial court erred by limiting focus in move-away case to lack of bad-faith motive and by refusing to hold evidentiary hearing to consider detriment to children. This case makes a very important point regarding move-away cases: Lack of a bad-faith motive doesn’t automatically mean a move is OK, no matter how much it may have seemed like that was the law from reading recent cases.
2003 LaMusga v. LaMusga (2003) (unpublished; review granted August 28, 2002; Pending in California Supreme) In August 2002, the California Supreme Court voted unanimously to revisit the move-away issue by hearing the LaMusga case, in which a Contra Costa County custodial mother sought to move to Arizona with her two young boys and her new husband. The case has not yet been argued, but it will deal with the First District’s reversal of an order that granted primary physical custody to Dad if Mom moved to Ohio, and its remand for the trial court to consider Mom’s presumptive right to move and determine whether a custodial change was essential for the children’s welfare. In the appellate court’s view, the trial court impermissibly focused on the disruption in the father-child relationship from the move, while ignoring the disruption to the mother-child relationship. Dad’s petition for review asked the Supremes to review and clarify their Burgess opinion with an eye toward reemphasizing the welfare of the child as a factor in move-away decisions, contending that this aspect has been forgotten while emphasis has been placed on the bad-faith or good-faith motives for a move. LaMusga v. LaMusga is heavily being watched, as this case has the potential for reshaping how move-away cases will be analyzed.
2004 In re Marriage of LaMusga (2004) (No. S107355; California Supreme Court, April 29, 2004) The likely impact of a proposed move on the noncustodial parent’s relationship with the children is a relevant factor in determining whether the custodial parent’s move would cause detriment to the children, and may be sufficient to justify a change in custody.
2006 In re Marriage of Brown and Yana (2006) (No. S131030; California Supreme Court, February 2, 2006) The California Supreme Court holds that a parent who has sole legal and physical custody does not have the absolute right to move away, but the noncustodial parent is entitled to an evidentiary hearing only after unsuccessful mediation and showing of the move’s detrimental effect on the child. The Supreme Court also emphasized that the trial court has wide discretion to grant or deny a hearing to the noncustodial parent, even in the face of a sole-custody order, similar to a trial courts broad discretion to come up with a custody plan that reflects the overall best interests of the children. In move-away cases, such as this one, the “sole-custody” label can still be a powerful blockade to the noncustodial parent’s efforts to change custody. A noncustodial parent who wishes to modify custody against a sole-custody order must make a showing of specific detriment to the child, as opposed to generalities, making the burden of proof for a noncustodial parent who wants a custody modification against a sole-custody order extremely high. In re Marriage of Brown and Yana (2006), the father, Anthony, failed to present legally sufficient evidence that the move would be detrimental to his son, Cameron. Although Anthony was given every opportunity to provide specific evidence as to why the move would be detrimental to his son, he provided generalities, as opposed to specifics, and the Supremes agreed with the trial court’s denial of an evidentiary hearing and held that the Second District erred by concluding that the lower court should have granted Anthony an evidentiary hearing.
2006 In re Marriage of Seagondollar (2006) (No. G035270; Court of Appeal of the State of California, May 25, 2006) The California Court of Appeals places emphasis on the importance of due process in hearing move away petitions. The court of appeals criticized the trial court’s failure to give the father, Timothy, a meaningful opportunity to be heard on the change in custody and relocation decision stating, “Virtually from start to finish, the trial court handling this matter failed to follow or evenly apply the rules and procedures governing family law matters and, by failing to do so, denied Timothy the opportunity to be meaningfully heard. The rules of procedure for reaching family law decisions–contained in the Family Code, the Code of Civil Procedure, the California Rules of Court, and local court rules–are not mere suggestions. The rules of procedure are commands which ensure fairness by their enforcement.” {Slip Opn. Page 3}