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Custodial Parent's Right To Move Away With Children Is Given A Significant Boost

By Donald P. Schweitzer

Republish: EasyPublish™ Published: 12Mar2012 Word count: 1201 Viewed: 29 time(s) Get Free Content For Your Site

In California, the pendulum continues to swing with respect to our "move-away" law. Based on three recent published opinions from San Diego County, the custodial parent's presumptive right to move has been significantly strengthened. In order to understand how California move-away law has been changed by these decisions, it is first necessary to understand the two California Supreme Court decisions that set the ground rules for trial courts dealing with this issue.

During the mid'1990s the California Supreme Court published a decision entitled In Re Marriage of Burgess, which held that a custodial parent has the presumptive right to move away with the parties' children, so long as the move is not motivated by vindictive purposes, and that there is a rational basis for the move. The Supreme Court specifically held that the trial court is not allowed to second guess the custodial parent's reasoning for the move. Thus, even if the trial court believes that the custodial parent's reasoning is a little off and that he or she has the same or better opportunities in California, it cannot deny the move.

Approximately seven years later, the California Supreme Court published a second "move away" decision entitled In Re Marriage of La Musga, which purported to clarify the prior decision. In La Musga, the California Supreme Court held that if a non'custodial parent makes a prima facia showing that the move away would be detrimental to the children and to the relationship between the left-behind parent and the children, the trial court must decide the issue after a full evidentiary hearing, and that the court must decide if the move is in the best interest of the children. The California Supreme Court also stated that the trial court must take into consideration several common-sense factors such as the distance of the move, whether or not the custodial parent would share custody, whether or not the relationship between the children and the left-behind parent would be damaged by the move, etc.

In my practice as a family law attorney, I have seen the pendulum swing in both directions on this issue. After the Burgess decision, the trial courts were pretty much rubber stamping requests for move away and it seemed like any opposition to the move was futile. After the La Musga case was published, however, trial courts and mental health professionals became very vocal in their opposition to move aways and it became significantly harder for a custodial parent to move away with children if the other parent objected.

Now, in the wake of the three published cases out of San Diego, I believe that parents wishing to move away with children will have a much better chance of doing so. Since all three decisions essentially ruled the same way, I will only review one of the cases for the purposes of this article, In Re Matter of Mark T. v. Jaime Z.

In Mark T. v. Jaime Z., the father filed to establish paternity in 2007. On November 10, 2008 the Trial Court made orders for the father to have overnight visitation. The mother was obviously given primary custody of the child. The mother then filed an Order to Show Cause requesting the court's permission to move to the State of Minnesota with the minor child. The mother's reasons for the move, as stated in her declaration, were that she had support from family members in Minnesota, she had no job in San Diego, and that she was forced to borrow money. She also stated that she believed she would have better job opportunities in Minnesota.

In February, 2009, the mother and father entered into a Stipulation and Order that they would participate in a child custody evaluation. Subsequent to their agreement, a child custody evaluator interviewed the parents and eventually made recommendations. However, while the custody evaluation was underway, the parties entered into a second Stipulation and Order that acknowledged the mother was the primary custodial parent.

In June 2009, the child custody evaluator released her report. The child custody evaluator stated that the mother's need for her family support in Minnesota was no substitution for the child's need to be with the father. The Trial Court followed the recommendations of the evaluator and precluded the mother from moving to Minnesota because the Trial Court believed that the move would have a detrimental effect on the child.

The mother appealed the decision. The Court of Appeal reversed and remanded the case back to the Trial Court with specific findings that:

1. When faced with a move-away request, the Trial Court must decide custody based on the assumption that the move will take place and determine what custody arrangement is in the child's best interest if the move occurs;

2. The Trial Court applied the incorrect legal standard in ruling on the mother's move-away request because it based its order on an assumption that the mother would not move if the Trial Court denied the request;

3. The Trial Court's order was impermissibly coercive;

4. The child custody evaluator's report failed to address what the proper parenting plan would be if the mother moved to Minnesota and the Trial Court erred by adopting the child custody evaluator's recommendations;

5. The father's attorney should not have been allowed to question the mother regarding whether or not she would move without the children; and

6. Improper motive for move is only one factor for the Trial Court to consider and it is not an automatic ground for a custody change.

Consequently, the Court of Appeal held that the Trial Court abused its discretion by failing to apply the proper legal standard for making the move-away orders.

The lessons that we learn from the three cases from San Diego are very important. First, we now know that trial courts may not coerce parents into remaining behind by giving them a choice of either staying and having primary custody of the kids or moving away without the children. Second, we also learn that it is not permissible for a child custody evaluator or an opposing counsel to ask a custodial parent if he or she will in fact move if the children were ordered to remain with the other parent.

Practically speaking, now a trial court has the tough decision of deciding where the children should live, assuming that the custodial parent has already moved. In Mark T. v. Jaime Z., the Trial Court should have decided whether the children were better off with the mother in Minnesota or with the father in San Diego. Obviously, if the parties have already stipulated that the children are better off with the mother on a primary basis, it will be difficult to assume that they would be better with father in the case of a move away. I believe that these decisions will cause more people to litigate over who should have primary custody because if the primary custodian decides he or she wants to move, it will be pretty difficult to object in most cases.

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