Articles & News
A Moving Issue
L.A. Lawyer Magazine
WHEN A CUSTODIAL PARENT SEEKS TO RELOCATE WITH A CHILD, THE BURDEN IS ON THE NONCUSTODIAL PARENT TO SHOW THAT A CHANGE OF CUSTODY ARRANGEMENTS IS WARRANTED
Ira M. Friedman and Abby Friedman are partners in the law firm of Friedman & Friedman in Beverly Hills. The firm's practice focuses on the areas of family law, enforcement of judgments, and general civil litigation.
"The best interests of the child" is the mantra cited and recited by litigants, attorneys, and judges whenever the issue of child custody is discussed.
While the phrase has crossed over from legal discourse into popular culture, it is significant mainly because it is a legal conclusion that requires an analysis of various factors, including the health, safety, and welfare of the child as well as the goal of continuing contact with the child by both parents. Determining the best interests of the child may never be more difficult than when a court must decide whether one parent can move with a child to a location geographically distant from the other parent. These cases are known as "move away" cases.
Move-away cases are not about the right of a custodial parent to move. While the right of an individual to travel and to relocate is not specifically mentioned in the U.S. Constitution, courts have acknowledged the right as constitutionally protected under the Fifth and Fourteenth Amendments.1 At issue is whether a parent may relocate with his or her minor children despite the contrary wishes of the other parent. A parent who requests permission to move away with a minor child must delineate his or her reasons for the move, show that the move is not intended to frustrate the other parent's visitation, and suggest an alternative visitation plan.
In California, the subject of move-aways is not new. However, in recent years, the number of move-away cases has increased, and the legislature's attention has become more focused, because the explosion of new technologies, the rapid expansion of the economy, and the relocation of manufacturing and business centers have led people to change their primary residences more frequently than they did 20 or 30 years ago.
California decisional law regarding move-aways has been evolving at an accelerated pace since 1976, with no sign of slowing down. While some believe that the California Supreme Court's 1996 decision in In re the Marriage of Burgess2-a decision that was eagerly awaited-represents the pinnacle of move-away case law, it really is only the beginning of a new chapter of cases that will guide the courts as they face this intensely personal and difficult issue. The supreme court recognized that bright-line rules in a move-away case are inappropriate: each case must be evaluated and considered on its own unique facts.3
To grasp the nuances of the move-away cases, counsel must first have a clear understanding that physical custody and legal custody are distinct concepts, according to the basic custody definitions codified under California law:
- "Joint legal custody," under Family Code Section 3003, means that both parents share the right and responsibility to make decisions relating to the health, education, and welfare of a child.
- " Sole legal custody," under Family Code Section 3006, means that one parent has the right and responsibility to make decisions relating to the health, education, and welfare of a child.
- " Joint physical custody," under Family Code Section 3004, means that each of the parents has physical custody of the child for significant periods of time, but the time need not be divided equally between the parents. Joint physical custody must be shared by the parents in a way that will ensure a child's frequent and continuing contact with both parents.
- " Sole physical custody," under Family Code Section 3007, means that a child shall reside with, and be under the supervision of, one parent, subject to the power of the court to order visitation.
- " Joint custody," under Family Code Section 3002, combines joint physical custody and joint legal custody.
The court may grant joint legal custody without granting joint physical custody.4When making an order of joint physical custody or joint legal custody, the court may specify one parent as the primary caretaker of the child.5 It is most common for the primary caretaker to be considered the primary custodial parent.
California law provides clear mandates for judges making custody or visitation orders. It is the public policy of California that the health, safety, and welfare of children must be the primary concern of a court in determining the best interests of children.6 Similarly, public policy requires that a child have frequent and continuing contact with both parents after separation, except when the contact would not be in the best interests of the child. When considering the best interests of the child, the court must also weigh any history of abuse by a parent or any other party seeking custody.7 When allegations of physical abuse or habitual and continued illegal use of a controlled substance or alcohol are made by one party against another, the court is required to state the reasons for its order of sole or joint custody in writing or on the record.8
The General Rule and Its Refinements
Former Civil Code Section 213, which addressed the issue of a parent's right to move away, was enacted in 1872. In 1993, when the Family Code was created, the legislature provided anew that the parent with primary custody of a child had a right to change the residence of the child, subject to the court's power to restrain a removal that would prejudice the rights or welfare of the child.9 This law, codified as Family Code Section 7501, dovetailed with the general rule that had guided courts since 1964, which was that the parent with custody of the child was entitled to change the residence of the parent and the child unless the move would be detrimental to the child.10 The legislature's recent action demonstrates that the general rule, which has been subject to case law refinements and changes in the intervening years, has come full circle.
When is a move detrimental to a child or prejudicial to the rights or welfare of a child? Courts have steadily grappled with the necessity of interpreting the general rule. In 1976, the California Court of Appeal in In re the Marriage of Ciganovich further defined the general rule by holding that if the objective of the move was to frustrate, deny, or destroy the noncustodial parent's visitation rights, the move would offend both the interests of the noncustodial parent and the welfare of the child.11 The underlying public policy consideration is that preservation of parental relationships are in the best interests of the child.
The California Supreme Court, in In re the Marriage of Carney,12 a 1979 decision, added another dimension to the general rule by addressing the conflict between two strong public policies: 1) the requirement that a custody award serve the best interests of the child and 2) the moral and legal obligation of society to respect the civil and parental rights of its physically handicapped members. In Carney, the mother had relinquished custody of the minor children by a written agreement that was executed when the parties separated. The father then moved with the children to California. Four years later, the father was in an accident, rendering him a quadriplegic. The mother, who had not seen the children since 1972, sought modification of the custody order and permission to move the children back to the East Coast. The court ruled against the mother's request, and, in so doing, provided several important guiding principles.
First, the trial court is not permitted to favor the mother in determining proper custody of a young child. By statute, the "tender years" doctrine has been eliminated. Custody is to be awarded to either parent according to the best interests of the child. Second, if children have lived with a parent for an extended time (in Carney, the period was almost five years) pursuant to a written agreement, the child will not be removed from the custody of that parent and given to the other unless there has been a material change of circumstance that makes a custody change essential or expedient for the welfare of the child. Third, when a parent is allowed to move with the child, the amount of visitation time with the noncustodial parent should be increased to minimize the loss of frequent contact and visitation resulting from the move. Further, transportation expenses should be allocated to the custodial parent or the custodial parent should be required to provide for the transportation of the children to the noncustodial parent's home. Fourth, Justice Mosk noted, in eloquent language, that the essence of parenting is the ethical, emotional, and intellectual guidance of a child-and this guidance is generally unrelated to the physical capabilities of a parent.13 Thus, the father's physical disability was not a sufficiently relevant or material change of circumstance rendering it essential or expedient for the children's welfare that they be taken from his custody. Similarly, courts have also found that a custody order may not be based on sexual orientation14 or on religious belief,15 whether or not the custody determination includes a move-away determination.Seven years later, the supreme court decided Burchard v. Garay,16 a case that did not involve a move-away scenario but offered guidance applicable to move-aways. The court held that when a custody arrangement was the result of an adjudication, a presumption arises that the existing custody arrangement is in the child's best interests. Thus, the party seeking a change of custody must make a persuasive and substantial showing of a change of circumstances warranting an alteration of custody consistent with the best interests of the child. However, if the existing custody arrangement was de facto (that is, by stipulation or written agreement rather than a court order) and not the result of a custody adjudication, no presumptions protect the existing custodial arrangements, and the party seeking a change need not show a change of circumstances.17 The court further directed that a custody decision could not be based upon the relative economic position of the parties18-a position that eliminated any argument that a more affluent parent should be awarded custody because that parent could provide more material possessions or opportunities. The court also stated that the custody decision could not be based upon any assumption that the care given by a single, working parent is inferior to that of a remarried parent. Thus, comparative income or economic advantage is not a permissible basis for a custody award. This principle is relevant to the move-away cases because many times the parent seeking to move away is the economically disadvantaged parent seeking to begin a new life or a new job.
In the same year that Burchard was decided, the California Court of Appeal in In re the Marriage of Rosson held that the child and each parent share a right to frequent and continuing contact with each other and that this right to time together is an element to consider when determining custody and visitation consistent with the child's best interests.19 While the noncustodial parent's authority to exercise visitation is not the sole or preeminent factor to consider in a move-away case, it is significant nonetheless. After all, inherent in any right is the ability to exercise the right. In 1991, five years after Marriage of Rosson, In re the Marriage of Carlson concluded that the loss of the practical ability to exercise visitation is a relevant factor in deciding whether a custodial parent should be allowed to move a child to a different geographical area.20 This reasoning was based upon the clear mandate codified in California that continuing contact with both parents is a constituent element of the child's best interests.21 However, to assure frequent contact, the court may not order an individual to move to and live in a community not of his or her choosing.22
In 1992, a series of move-away cases focused squarely on the reasons behind a parent's desire to move. In In re the Marriage of McGinnis, the court of appeal reiterated that the noncustodial parent's ability to exercise visitation is a significant consideration but not the sole or preeminent factor in evaluating the best interests of the child.23 It is well established that courts are reluctant to change custody and will not do so except for imperative reasons, particularly when a shared-parenting arrangement is a working one. In Marriage of McGinnis, the reasons given by the mother for her wish to move with the children did not meet the test of the best interests of the children in light of an effective shared parenting arrangement and the fact that the father had purchased the family home to provide continuity for the children. Under these circumstances, the burden of proof is upon the relocating or moving parent to demonstrate that the move is in the best interests of the child-specifically, that it is essential, expedient, and imperative.24 The parents were equally capable and involved with the children, so the opportunity for the children to remain where they had lived all their lives was the most significant factor to consider.
When a shared-parenting arrangement is unsuccessful, the best interests of the child is the sole test. Another case with a successful shared parenting arrangement, In re the Marriage of Battenburg,25 reiterated that the moving party must establish that the move is expedient, essential, and imperative.26 The moving party thus has the burden of persuading the court that a change in custody is required for the welfare of the child. The mother in Battenburg wanted to move from California to the state of Washington, where her current husband was a college professor. The child was five years old and would soon be starting kindergarten, which precluded a long-distance, equally shared custody. If the mother were to move to Washington, a change of custody was necessary-and evidence was presented that supported the determination that a change in custody was in the child's best interests as well being expedient, essential, and imperative.
Despite the trend toward allowing moves, not every parent requesting court permission to move away with a minor child is successful. In 1996, in Cassady v. Signorelli, the mother was denied the right to move from the Bay Area to Florida.27 The move was held to be not in the minor child's best interests because it would have frustrated the father's rights of joint custody and visitation. The court found that the mother's wish to move was not supported by her professed need for the move. The mother had somewhat whimsical plans and very uncertain prospects in Florida. Perhaps more importantly, it seemed that she only wanted to move to frustrate the father's relationship with the minor child. Therefore, it was not in the minor child's best interests to permit the move.
When the California Supreme Court agreed to hear Burgess,28 the courts were not only examining a party's reasons for moving but also evaluating the impact of the move on the children. As a practical matter, however, a hearing on a request for a move-away order ultimately involves issues of custody and visitation.29 Thus, a move-away case can trigger a modification, giving the noncustodial parent joint custody.30 Separate from an evaluation of the myriad personal reasons why any individual might seek to relocate is the core issue of whether the best interests of the child require a change in the existing custody or visitation arrangements. The significance of Burgess is that the California Supreme Court moved away from the necessity of an evaluation of the reasons for the move to a focus on maintaining the same custodial arrangement given the move, with an inclination toward maintaining the existing custodial arrangement notwithstanding the move.
Seminal, but Not Revolutionary
In Burgess,31 the parents separated in May 1992 when their children were four and three years old. In July 1992, a stipulated order for temporary custody and visitation was entered, with the result that the parents shared joint legal custody and the mother had sole physical custody of the children. Soon after the order, the mother accepted a job transfer to a city approximately 40 minutes away from her residence. The move was a career advancement for her, and she believed it would permit the children greater access to medical care, extracurricular activities, private school, and day care facilities. The father opposed the mother's move because he would not be able to maintain his current visitation schedule. He requested the court to change his status to primary caretaker if the mother relocated.
The trial court denied the father's request and granted permission to the mother to move with the children. The father was granted liberal visitation, but he appealed. The court of appeal reversed the trial court, and, in doing so, set forth a two-step process for determining whether a parent could relocate with a child. The California Supreme Court, however, reversed the court of appeal and affirmed the trial court.
In this seminal opinion, the supreme court held that after a judicial custody determination based on the best interests of the minor child, the parent seeking to relocate need not establish that the move is necessary as a condition of maintaining custody. The paramount need for continuity and stability in custody arrangements and the harm that may result from the disruption of established patterns of care and emotional bonds with the primary caregiver weigh heavily in favor of maintaining ongoing custody arrangements independent of where the custodial parent lives. In contrast, the noncustodial parent seeking to change custody due to the move must prove that it would be in the best interests of the child to change the custody order. As with any other request for a modification of custody, the noncustodial parent must establish a change of circumstances.When considering the relocation of a minor child, the court may take into consideration the nature of the child's existing contact with both parents-including de facto as well as de jure custody arrangements-as well as the child's age, community ties, and health and educational needs. Where appropriate, the court must also take into account the preferences of the child.32 The court must consider and give due weight to the wishes of the child in making an order granting or modifying custody if the child is of sufficient age and has a capacity to reason that enables the child to form an intelligent preference regarding custody.33 The preference of the child may be an especially significant issue in a move-away hearing.
Burgess is not as revolutionary as it may have seemed at first glance. Although Burgess is considered to be the starting point now for California move-away cases, it really is a continuation of established legislative intent coupled with the line of cases that allowed the primary caregiver to move with the minor child upon the satisfaction of certain conditions.
A crucial part of Burgess is found in its footnote 4, which states that a parent entitled to custody "has the right to name any reasonable place in which the children shall abide with him."34 The supreme court found that in cases involving the removal of a child by a parent entitled to custody, Family Code Section 7501 applies. But the court did not suggest that a parent has the right to remove a child if the removal would not be in the child's best interests. This view hearkens back to previously decided cases.35 The court ended the footnote by stating that the "changed circumstances test" applies in removal cases.36 This test requires the party seeking to block the move to establish that a change of custody is appropriate. Significantly, the court declined to impose a burden on the parent seeking to relocate with the minor children to establish that the move was a "necessity." Perhaps even more important, a parent need not establish necessity whether the issue is being addressed in a proceeding for an initial order of custody and visitation or for a modification of an existing order. The supreme court's reasoning was based in part on public policy, in part on the recognition that our society is increasingly mobile, and in part on a desire to clarify previous case law.
Just as significant as the discussion and conclusions reached in footnote 4 of Burgess is the important statement by the court in footnote 12. The court found that when parents share joint physical custody of a minor child under an existing order, the custody order can be modified or terminated upon the request of either parent, or even on the court's own motion, if it is shown that the best interests of the child requires such action. The court concluded that the trial court must determine de novo what arrangement for primary custody is in the best interests of the minor child.37
Seeking to clear away the clutter in the area of move-away case law, the supreme court in Burgess held that the noncustodial parent seeking a custody change must prove that due to a substantial change in circumstances, it would be in the best interests of the child to change the custody order.38 Moreover, the court was clear that this analysis applies to an initial custody order or a modification of an existing custody order. Still, Burgess has spawned more questions than answers.
Case Law after Burgess
The year after Burgess, the supreme court, in In re the Marriage of Whealon,39 held that the custodial parent's proposed move did not by itself warrant a de novo custody determination. The facts presented by the noncustodial parent failed to show changed circumstances required for a change of custody. The court's decision was based in part on the fact that the noncustodial father and the mother did not share joint custody, either de jure or de facto. Rather, one parent had primary physical custody of the child and the other parent had generous visitation rights.
In 1998 the court of appeal clarified that Burgess applies even to stipulated custody arrangements or orders. The case, In re the Marriage of Biallas,40 acknowledges the public policy favoring frequent and continuing contact with both parents but addressed a number of ways to ameliorate the negative effects on the noncustodial parent of a move away. For example, the amount of visitation could be increased during school vacations.
The same year as Biallas, the court of appeal, in In re the Marriage of Edlund and Hales,41 considered a circumstance in which the primary custodial parent sought a modification of an existing custody order to accomplish a move-away from the noncustodial parent's geographical area. The court held that when a move-away is requested, the trial court should consider 1) whether the custodial parent's request for a move away order is based upon sound, good faith reasons for the move, and 2) if so, whether the noncustodial parent can show that, as a result of the move, the child will suffer detriment rendering it essential or expedient to change custody for the welfare of the child. What constitutes detriment? The noncustodial parent could describe the negative impact of relocation, which could include changing schools, moving away from friends and relatives, and the like. Of course, an argument could be made that any diminution in the relationship with the noncustodial parent is detrimental to the child. This is especially true when custody consists of time shared equally (or almost equally). The court found, however, that the mother had good faith reasons for the move: she wanted to move to a location with a lower cost of living, which would allow her to give up her job and stay home to care for the minor child, and she wanted to live in a residential community with a school district that was appropriate for the child.42
Foreign relocation differs from other move-away cases because it necessarily includes other important facts, such as cultural differences, usually greater geographic distances with attendant travel costs and the strain of longer trips, and jurisdictional problems. Any relocation to another continent is likely to represent a de facto termination of the nonmoving party's parental rights to visitation and the child's right to maintain a relationship with the parent. When a relocation would have this dire an effect, the trial court, before allowing the move-away, should require the moving parent to satisfy the burden of showing that the termination of the nonmoving parent's rights would be in the best interests of the child.43 The court suggests that if the moving parent cannot satisfy this burden, then that parent could construct an arrangement in which the moving parent finances the other parent's visitation, or the child spends alternating years in the two countries. The plan must accommodate the valuable relationship between the nonmoving parent and the child.
A request to move away requires careful preparation. Although Burgess and its progeny have provided some guidance on move-away cases, there is no bright-line rule, and litigation no doubt will continue regarding this highly contested issue.
1 See, e.g., In re the
Marriage of Fingert, 221 Cal. App. 3d 1575, 271 Cal. Rptr. 389 (1990).
2 In re the Marriage of Burgess, 13 Cal. 4th 25, 51 Cal. Rptr. 2d 444 (1996).
3 Id., 13 Cal. 4th at 28.
4 Fam. Code §3085.
5 Fam. Code §3086.
6 Fam. Code §3020.
7 Fam. Code §3011.
8 Fam. Code §3011(e)(1) and (2).
9 Fam. Code §7501.
10 Forslund v. Forslund, 225 Cal. App. 2d 476, 37 Cal. Rptr. 489 (1964) (discussing Civ. Code §213).
11 In re the Marriage of Ciganovich, 61 Cal. App. 3d 289, 132 Cal. Rptr. 261 (1976).
12 In re the Marriage of Carney, 24 Cal. 3d 725, 157 Cal. Rptr. 383 (1979).
13 In re the Marriage of Levin, 102 Cal. App. 3d 981, 162 Cal. Rptr. 757 (1980).
14 Nadler v. Superior Court of Sacramento County, 255 Cal. App. 2d 523, 63 Cal. Rptr. 352 (1967).15 In re the Marriage of Murga, 103 Cal. App. 3d 498, 163 Cal. Rptr. 79 (1980).
16 Burchard v. Garay, 42 Cal. 3d 531, 229 Cal. Rptr. 800 (1986).
17 Id., 42 Cal. 3d at 534.
18 Id. at 539.
19 In re the Marriage of Rosson, 178 Cal. App. 3d 1094, 224 Cal. Rptr. 250 (1986), cited with disapproval in In re the Marriage of Burgess, 13 Cal. 4th 25 (1996).
20 In re the Marriage of Carlson, 229 Cal. App. 3d 1330, 280 Cal. Rptr. 840 (1991), cited with disapproval in Burgess, 13 Cal. 4th 25.
21 Fam. Code §3020(b).
22 In re the Marriage of Fingert, 221 Cal. App. 3d 1575, 271 Cal. Rptr. 389 (1990).
23 In re the Marriage of McGinnis, 7 Cal. App. 4th 473, 9 Cal. Rptr. 2d 182 (1992), cited with disapproval in Burgess, 13 Cal. 4th 25.
24 McGinnis, 7 Cal. App. 4th at 479.
25 In re the Marriage of Battenburg, 28 Cal. App. 4th 1338, 33 Cal. Rptr. 2d 871 (1994).
26 Black's Law Dictionary (6th ed. 1990):
o"Expedient" is defined as "apt and suitable to end in view. Whatever is suitable and appropriate in reason for the accomplishment of a specified object." Id. at 577.
o"Essential" is defined as "indispensably necessary; important in the highest degree; requisite. That which is required for the continued existence of a thing." Id. at 546.
o"Imperative" is defined as "mandatory." Id. at 753.
27 Cassady v. Signorelli, 49 Cal. App. 4th 55, 56 Cal. Rptr. 2d 545 (1996).
28 In re the Marriage of Burgess, 13 Cal. 4th 25 (1996).
29 Brody v. Kroll, 45 Cal. App. 4th 1732, 53 Cal. Rptr. 2d 280 (1996).
30 In re the Marriage of McLoren, 202 Cal. App. 3d 108, 247 Cal. Rptr. 897 (1988).
31 Burgess, 13 Cal. 4th 25.
32 Id. at 28.
33 Fam. Code §3042(a).
34 Fam. Code §7501.
35 Forslund v. Forslund, 225 Cal. App. 2d 476, 37 Cal. Rptr. 489 (1964).
36 Burgess, 13 Cal. 4th at 35.
37 Id. at 40.
38 Id. at 37-38.
39 In re the Marriage of Whealon, 53 Cal. App. 4th 132, 61 Cal. Rptr. 2d 559 (1997).
40 In re the Marriage of Biallas, 65 Cal. App. 4th 755, 76 Cal. Rptr. 2d 717 (1998).
41 In re the Marriage of Edlund and Hales, 66 Cal. App. 4th 1454, 78 Cal. Rptr. 2d 671 (1998).
42 Id., 66 Cal. App. 4th at 1470; but see In re the Marriage of Carlson, 229 Cal. App. 3d 1330, 1334 (1991) (no compelling reason for the mother to move except for the emotional support she would gain from contact with her family).
43 In re the Marriage of Condon, 62 Cal. App. 4th 533, 547, 73 Cal. Rptr. 2d 33 (1998).
Highlights of Move-Away Case Law
Before Marriage of Burgess
Year Case Holding
1976 Marriage of Ciganovich If the objective of the move was to frustrate or deny noncustodial visitation rights, the move is not in the best interests of the child.
1979 Marriage of Carney The court first determines a change of circumstances, and then whether a change of custody is essential or expedient for the child's welfare.
1986 Burchard v. Garay If the custody arrangement is a result of adjudication, there is a presumption that the existing order is in the best interests of the child.
1986 Marriage of Rosson 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 interests.
1991 Marriage of Carlson The loss of the practical ability to exercise visitation is a relevant factor in determining the feasibility of a move-away.
1992 Marriage of McGinnis The noncustodial parent's ability to exercise visitation is significant but not the sole factor in determining the best interests of the child.
1994 Marriage of Battenburg When there is a successful shared parenting arrangement, the moving party must establish that the move is expedient, essential, and imperative.
1996 Cassady v. Signorelli A move-away can be denied when it would frustrate the noncustodial parent's right to joint custody and visitation.
Marriage of Burgess
1996 Marriage of Burgess After a joint custody determination based on the best interests of the child, the parent seeking to relocate need not establish that the move is necessary as a condition of maintaining custody.
After Marriage of Burgess
1997 Marriage of Whealon The noncustodial parent did not show a change of circumstance required for a change of custody.
1998 Marriage of Biallas The court clarified that Burgess applies to stipulated custody arrangements or orders.
1998 Edlund v. Hales The court first considers if a move away is based on sound reason; then the noncustodial parent must show that the child will suffer detriment by the move.
1998 Marriage of Condon In a move-away to a foreign country, the moving parent has the burden of showing that de facto termination of visitation would be in the best interests of the child.
Tips for Practicioners
in Move-Away Cases
Both sides in a move-away case must address whether a move is in the best interests of the child. Practitioners should be aware of the techniques that advance the interests of their clients on either side of this painful dilemma.
Findings. The parties can stipulate in writing or on the record regarding custody or visitation, thus eliminating the need for findings. However, a practitioner should be very cautious about waiving findings. By doing so, it is difficult for the court or the parties to reconstruct the basis of the stipulated order. Practitioners who seek to have a court modify an existing order when no findings are contained in the order may leave the court wondering as to the basis of the existing order. Findings form a baseline for future determinations of whether there really has been a change of circumstances.
Order to Show Cause. The trial court in its discretion may hear a request for a move-away order as an Order to Show Cause (OSC) or may require a mini-trial on the issue. A practitioner should be prepared to present all testimony at an OSC hearing by way of declaration rather than with live testimony. Most courts will "Reiflerize"1-that is, they will base their decisions solely on written declarations-for judicial economy because of the vast number of matters heard daily in family law courts.
Discovery. The parent who is opposing the move should develop information through discovery that will aid the court in determining the substance of the move-away parent's plan and reasons for the move. Discovery results that reveal informal plans-such as "I won't know what I will do until I get to the new place"-expose the lack of foresight regarding the move and may reveal that the move is really intended to frustrate the other parent's right to visitation. By contrast, the parent requesting a move-away order should know a variety of details about the general area in which he or she is going to live. This information could include: 1) the presence in the area of a special school for the child, 2) a basic schedule of classes (for the parent who plans to attend school), 3) the work schedule plus the distance between the work site and the anticipated area of residence (for the parent who plans to work), 4) information, such as test scores, about the schools that the child would attend, 5) extracurricular activities available for the child, and 6) healthcare providers located near the new residence.
Notice of Change. The party who wishes to move must give the other party adequate notice of a change of the child's residence.2 The parties must engage in meaningful mediation, and the nonmoving party must have sufficient time to marshal evidence on the effects of a proposed move on the children. A custody evaluation or a mini evaluation may be needed.3
Testimony of Children. The preference of a minor child regarding which parent has custody may be considered by the court. The child must be of a "sufficient age"-a term open to wide interpretation by each judicial officer-to form an intelligent preference. Rather than having a child testify in open court, an in-chamber conference minimizes the exposure of the minor child to the adversary process. Under Family Code Section 3042(b), the court must control the examination of a child witness in order to protect the best interests of the child.4 The means to achieve this goal vary widely from courtroom to courtroom. The judicial officer may meet with the minor child in chambers without the parents present and with or without the attorneys present. The courtroom may be cleared of all spectators to permit the child to testify from the witness stand with or without a court reporter. Some judicial officers may even appoint counsel to represent the minor child.5
The Uniform Child Custody Jurisdiction and Enforcement Act. If a child is moved outside of California, the moving parent may try to divest California of jurisdiction. In this circumstance, an understanding of the Uniform Child Custody Jurisdiction and Enforcement Act6 is essential. Any orders that allow a parent to remove a child from California should include sufficient safeguards and findings to prevent the relocating parent from changing the custody jurisdiction for future litigation. In some cases, if jurisdiction is changed, the noncustodial parent may have difficulty enforcing the visitation rights that were granted by the California order.-I.M.F. & A.F.
1 Reifler v. Superior
Court, 39 Cal. App. 3d 479, 114 Cal. Rptr. 356 (1974).
2 Fam. Code §3024.
3 Evid. Code §730, Fam. Code §3111, Cal. R. Ct. 1257.3. But see In re the Marriage of Battenburg, 28 Cal. App. 4th 1338, 33 Cal. Rptr. 871 (1994) (The trial court reviewed the evaluation and, in a rare move, ruled against the recommendation; the judgment was affirmed an appeal.).
4 Fam. Code §3042(b).
5 Fam. Code §3150(a).
6 Fam. Code §§3400-3425.
click here to return to articles page