Moving Your Children

The Move-Away Dilemma ©2005
by Glen L. Rabenn
Certified Family Law Specialist

Introduction

For better or worse, Americans are divorcing and moving in greater numbers than ever. U.S. Government statistics tell us that 28% of all minor children live with one parent, and that every year more than 14,000,000 Americans relocated their residences to another county. So, it is not hard to understand why this issue keeps popping up in divorce courts in virtually every state. The California State Supreme Court's recent decision in Marriage of Lamusga is the latest in a series of California appellate decisions that have dealt with this situation over the last fifty years.

The consequences of a court's ruling in a move-away case can have a profound impact on both parents and their children. Unlike the typical child custody dispute, in which the parents fight over how much time they will each have the children, these cases have an unmistakable "all or nothing" quality to them. The move-away parent views the move as a doorway to her post-divorce future. The stay-behind parent, on the other hand, sees the move as a threat his/her parenthood. The children, caught in the middle of the parental battle, often feel pressured to choose between their parents. Even if such a choice is not forced upon them, the children's relationship with the non-custodial parent is often permanently altered.

This article has been written with aims in mind. First, to provide the reader with a general understanding of how the law in California regarding the move-away situation has evolved. Second, to provide parents with some guidelines to assist them in applying the law to their particular situations.

Historical Development

In California, this controversy has its origins in a line of appeals cases that stretches back more than fifty years to a 1942 case in which the father was trying to regain custody of the child from his ex-wife. In that decision, the appellate court said that an existing child custody order could be changed only if it is "essential or expedient for the welfare of the child that there be a change." In 1979, the California State Supreme Court stated that a child's custody could be changed only if the parent requesting the change could make a "persuasive showing of substantially changed circumstances affecting the child."

Over the subsequent seventeen years, this rule was used by courts to tell custodial parents that they could not move the children to other cities. In 1986, a Napa County working mother, who got a new job in San Francisco, was told that she could not take her 13 and 10 year old daughters with her. Six years later, another appellate court ruled that a father, who had physical custody of his three children three nights each week, had the right to demand a mental health evaluation of the parents and the children before the mother was permitted to move the children from Santa Barbara.

Several other appellate cases echoed the stringent rule that the move-away parent could not pick up and leave with the kids, simply because she wanted to. And it was not enough that the custodial parent had a good reason for the move, such as a new job or the desire to live with a new spouse.

The Burgess Decision

In 1996, the California State Supreme Court's Burgess case effectively nullified most of these lower court rulings. In doing so, the court made it much easier for move-away parents to follow through with their plans. In Burgess,the mother wanted to move with the couple's two children from their hometown of Tehachepi to Lancaster, which was 40 minutes away. After winning in the Superior Court and losing in the District Court of Appeal, the wife was able to convince the California State Supreme Court that the trial judge made the right decision.

The Court held that a custodial parent who is requesting to move only needs to convince the court that the move would be in the children's best interests. No longer did the moving parent have to show that there is some urgent need for the kids to get into a new environment or that there is a dire circumstance that justifies relocating to another city. To hold otherwise, the Court said, would require it to ignore the reality that people often relocate after they get divorced. Under Burgess, the only restriction on the custodial parent's right to move was the requirement that the move could not be based on a "bad" reason, such as to frustrate the non-custodial parent's time with the child.

Move-away disputes typically arise where there is an existing child custody order and the custodial parent seeks permission to relocate the child to another metropolitan area. In its decision, the Supreme Court said that the nature of the existing child custody order determined the scope of the trial court's inquiry in ruling on such a request. In the usual case where the custodial parent had the child for a substantial majority of the time, the non-custodial parent had the burden of convincing the court that there was a "change of circumstances" that required the court to award custody to the non-custodial parent. In the hearing of such a case, the trial court's job was limited to determining if events occurring since the existing order was made justified a modification of that order. However, where the parents were actually sharing custody of the child, the trial court was required to conduct a "de novo" hearing in which the court was to make a full redetermination of what custody order was in the best interests of the children.

Unfortunately, the Court did not define what it meant by a "shared" custodial arrangement. A general definition was developed in several decisions by the California District Courts of Appeal, in the years following Burgess. Those decisions held that a shared custody arrangement existed if the noncustodial parent had physical custody of the child for at least 40% of the time.

Post Burgess Decisions

In the eight years between its decision in Burgess and in its more recent ruling in Marriage of Lamusga, there were not less than ten District Court of Appeal decisions dealing with move-away requests. Among those decisions are the following:


Cassady v. Signorelli (1996)
The mother wanted to move from the Bay Area to Florida, where she planned on becoming a "parapsychologist" even though there were no available jobs in that field. The mother was prevented from doing so on the basis that her real reason in moving was to limit the father's time with the children.

Marriage of Whealon (1997)
The mother, who had primary custody of the 19-month-old child, was allowed to move to New York. However, the court required her to bring the child back to California once per month, starting with two days but increasing to nine consecutive days to visit with the father until the child began kindergarten.

Marriage of Condon (1998)
The mother had been the children's primary caregiver, with the father having the children between two and four days per week. The children had previously been away from the father for nine months. These factors were persuasive to the court when it permitted the mother to move with the children to Australia.

Marriage of Edlund & Hales (1998)
The mother was permitted to move the children to Indiana. In making this decision the court considered various factors, including the strength and primacy of the bond between the child and the mother; the mother's proven ability to provide full-time care for the child and clear evidence that the father was not adequately prepared to assume primary physical custody of the child.

Marriage of Bryant (2001)
The mother was permitted to move the children to New Mexico, where she was raised and where she still had family. During the course of the case the court-appointed child custody evaluator concluded that the mother was the primary parent. The court held that changing custody to the father would be a "radical shift" of the existing custodial arrangement. The court also concluded that the mother was not motivated by bad faith and had not interfered with the father's visitation rights.

Marriage of Williams (2001)
The Superior Court judge permitted two of the four children to move with the mother to Utah and ordered that the other two children were to remain in Santa Barbara with the father. Both parents were dissatisfied with the order. The District Court of Appeal found no compelling circumstance supporting the separation of the children and sent the case back to the Superior Court for further trial to determine which parent would have custody of all four children.

Marriage of Lasich (2002)
The mother was permitted to relocate the residence of the minor children to Spain. The parents had a custody arrangement in which the mother had the children 80% of the time. The Court ruled that the test was whether there was a change of circumstances justifying an award of custody to the father, which it found did not exist. In addition, the Court ruled that the move would not be detrimental to the children.

Marriage of Abrams (2003)
The mother was allowed to move the children from Sacramento to San Ramon, California, even though the existing custody order provided that custody would be awarded to the father if the mother moved from the area. The Court held that the father still had the legal burden of proving that the move would be detrimental to the children.

Marriage of Campos (2003)
The mother, who had custody of the children, wanted to move from Santa Barbara to Moorepark, which is two hours away. The trial court denied the father's request to stop the move because the mother did not have a bad-faith motive. The Court of Appeal reversed and remanded the case back to the Superior Court. The Court of Appeal held that in move-away cases the non-custodial parent has the right to present evidence that the move is being made in bad faith and the detriment to the welfare of the children that will be caused by the move.

Marriage of Abargil (2003)
Both parents had immigrated from Israel before the marriage. The father had obtained a green card, but the mother only had a tourist permit. When they separated, the mother went back to Israel with their one minor child for a vacation. When she attempted to re-enter the United States, the mother was initially denied entry because she did not have a visa. However, the INS ultimately allowed the mother to enter the country for the limited purpose of resolving the child custody issue. The appellate court sustained the trial court, which awarded custody to the mother and permitted her to return to Israel with the child. The court held that the possibility that Israel was a dangerous place was not a sufficient reason to award custody to the father. The court found that the mother was more involved with the child's care than the father. The court was also concerned that if custody were awarded to the father, the mother might never be able to see the child again.

Marriage of Lamusga

In the Spring of 2004 family law judges and attorneys were eagerly awaiting the California State Supreme Court's ruling in Marriage of Lamusga. Many legal experts anticipated that the Supreme Court was going to modify the rule in Burgess and, in the process, making it more difficult for a custodial parent to move with the child. Instead, the Court reaffirmed its Burgess ruling and clarified certain concepts that had been discussed in the cases that were mentioned above.
In her request for a modification of the existing child custody order, the mother in Lamusga asked the court's permission to move to Cleveland with the couple's two sons. The Superior Court judge denied the mother's request and the Court of Appeal reversed. The Supreme Court reversed the Court of Appeal thus restoring the Superior Court's ruling denying the mother's request.
The Supreme Court provided a list of factors that should be considered when deciding whether to modify a custody order in light of the custodial parent's proposal to change the residence of the child. Those factors are listed in the following section.

What Does All This Mean?

Even though there have been many reported decisions on the subject of move-aways, those decisions have provided us with an analytical outline of how move-away cases are to be decided:

  • 1. If the move-away request is made in the course of the initial child custody determination, the court's decision is to be based on a determination of what arrangement is in the best interests of the child. (See section 3, below)
  • 2. If the request is presented as a modification of an existing child custody order, the manner in which the request is considered depends upon the nature of the existing custodial arrangement.
  • A. If the parents are sharing physical custody of the child (i.e. at least a 60%/40% sharing) the decision is based on what is in the children's best interests. (See section 3, below)
  • B. If one parent has physical custody of the child for more than 60% of the time, that parent will be presumed to have the right to move the child without the consent of the other parent. In such cases, the non-custodial parent will be successful in preventing the move if he/she can convince the court that
  • 1) The move is being made in bad faith, i.e. is motivated by the custodial parent's desire to reduce or eliminate the other parent's contact with the children, or
  • 2) The move would be detrimental to the welfare of the child.
  • In determining if the move would be detrimental to the child, the court is to consider the effect the move will have on the child's relationship with the other parent after the move.
  • 3. In determining what custodial arrangement is in the children's best interests the court is to consider, among other things, the following:
  • A. The children's need for stability and continuity.
  • B. The distance of the move.
  • C. The age of the children.
  • D. The children's relationship with both parents.
  • E. The relationship between the parents, including their ability to communicate and cooperate effectively and their willingness to put the interests of the children above their individual interests.
  • F. The wishes of the children if they are mature enough for such an inquiry to be appropriate.
  • G. The reasons for the proposed move.
  • H. The extent to which the parents currently are sharing custody.
  • 4. The parent who is opposing the move-away request has the right to request a child custody evaluation by a court-appointed expert.
  • What is a Parent to Do?
  • With two exceptions, in all of the cases summarized in this article the ruling of the trial judge was affirmed. This tells us that appellate courts will be very reluctant to second guess Superior Court judges who hear the trials of these cases and are in a position to weigh the evidence. Nevertheless, the Burgessand Lamusga cases tell us that there are strategies that both parents can utilize to either enhance their chances of winning a move-away case or preventing the custodial parent from prevailing.
  • 1. Strategies for the Move-Away Parent
  • The following should be considered by the parent who would like to relocate to another metropolitan area:
  • A. Do not interfere in the relationship between the children and the other parent.
  • B. Avoid saying anything bad about the other parent to or in the presence of the children.
  • C. If the other parent is not seeing the children on a regular basis, maintain a calendar that note when that parent actually spends time with the children.
  • D. Be prepared to provide documents showing the reason for the move.
  • E. Make sure that you will have a source of income after the move is completed.
  • F. Move to a location where the moving parent has extended family.
  • G. Do not wait until the end of the children's summer vacation to file papers in court requesting the right to move with the children. File your papers at least four months prior to the scheduled move. This will provide the court with sufficient time to schedule a hearing.
  • H. If this is the initial custody determination and you anticipate that you will want to move in the future, do not permit the custody order to have any move-away restrictions.
  • I. Make sure that the custody order provides you with sole physical custody of the children.
  • 2. Strategies for the Parent Objecting to the Move-Away
  • The parent who is objecting to the move also has strategies that, if followed, can maximize that parent's ability to resist the move.
  • A. In the initial custody order, make sure that final judgment provides that physical custody of the children is awarded jointly to both parents and that neither parent can change the residence of the children from the metropolitan area without the court's permission.
  • B. Try to get as much time with your children as possible. Be sure to exercise all of your visitation rights.
  • C. Insist that the child custody order reflect that the parents are awarded joint physical custody of the children.
  • D. Be involved in your child's schooling, medical care and extracurricular activities.
  • E. If the custodial parent requests the right to move the children, insist that the court appoint a social worker or a mental health professional to conduct a thorough evaluation of the children and the parents.