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Custody Cases—The Move-Away Case. Part 2: When the Parent Seeking to Move Away Has Sole Physical Custody of the Minor Child

This blog post is Part 2 in my 6-part blog series dealing with California custody move-away cases.  As stated in Part 1 of this series, about 65% of the inquiries I receive in my California Family Law Practice deal with custody matters.  Move-away cases are under the family-law umbrella of custody.   This blog post focuses on the situation where one parent seeking to move away with the child has sole physical custody of the child.

The Law and the Court’s Focus

When one parent has sole physical custody under an existing custody order and seeks to relocate, the noncustodial parent who seeks a change of custody to prevent the child’s relocation bears the initial burden of showing that relocating would cause “detriment” to the child. On such a showing, the trial court must reevaluate the child’s custody and determine whether a change in custody to the  noncustodial parent is in the best interest of the child. (Marriage of  La Musga (2004) 32 C4th 1072, 1078, 12 CR3d, 356. See also Marriage of Burgess (1996) 13 C4th 25, 38 51 CR2d, 444; Osgood v. Landon (2005) 127 CA4th 425, 434, 35 CR3d 379.)

While the custodial parent’s proposed move does not automatically constitute what is known as a “change in circumstances” requiring reevaluation of a custody order, the likely impact of the proposed move on the noncustodial parent’s relationship  with the child is a relevant factor in determining whether the move would cause detriment to the child.  (Marriage of La Musga, 32 C4th at 1097.) A trial court is not required to grant a full evidentiary hearing on a noncustodial parent’s request to modify physical custody of a child in the face of a proposed relocation by a parent who has sole legal and physical custody of the child  Instead, it may deny the request in a motion hearing after mediation has been completed if the requesting  party fails to establish a prima facie showing that the proposed relocation will cause detriment to the child. (See Marriage of Brown & Yana (2006) 37 C4th 947, 962m, 38 CR3d 10).

In any move-away case, the court must consider what custodial arrangement is in the best interest of the child. The supreme court in La Musga identified several factors that trial courts should  ordinarily consider when deciding move-away cases. In addressing the significance of one such factor, the motivation of the custodial  parent to move away, the court quoted the case of Burgess, stating that a change of custody “is not justified simply because the custodial parent has chosen, for any sound good faith reason, to reside in a different location, but only if, as a result of relocation with that parent, the child  will suffer detriment rendering it ‘essential or expedient for the welfare of the child that there be a change.’” (Marriage of La Musga, 32 C4th at 1099 (indicating the appellate court in Marriage of Bryant (2001) 91 CA4th 789, 110 CR2d 791 overstated absence of bad faith in holding that once trial court found the  mother was not acting in bad faith,” no further inquiry into the reasons for the proposed move” was necessary or appropriate). The trial court should exercise its broadest discretion in ruling on the move by considering a wide range of relevant factors. (32 C4th at 1101). If the existing custody order requires the custodial parent to obtain the other parent’s consent or a court order before relocating, the custodial parent bears the burden of obtaining judicial review and making the requisite good-faith showing, but the noncustodial parent retains the burden of establishing that relocating would be detrimental to the child. (Marriage of Abrams (2003) 105 CA4th, 979, 130 CR2d 16.)

If the custodial parent seeks to move away to a foreign country, he or she must show that the other’s parenting rights can be preserved in light of the cultural, transportation and financial problems posed by an international move. (Marriage of Condon (1998) 62 CA4th 533, continuing contact with the parent remaining in the U.S. and the California custody order must be guaranteed enforceable in foreign country; Marriage of Abargil (2003) 106 CA4th 1294, 131 CR2d 429).  To protect the child’s relationship with the noncustodial parent, however, the custodial parent may be ordered to the following: 1)ordered to post a substantial financial bond to ensure compliance with the court’s order; 2) prohibited from applying for modification of the judgment in any court in except a California court; and 3) required to register the California judgment with the foreign authorities before leaving the state. (Marriage of Abargil (2003) 106CA4th 1294, 131 R2d 429.)

Discussion

If the noncustodial parent can prove to the court that it would be detrimental for the child to relocate with the custodial parent, and the court agrees with the non-custodial parent, then the court will change custody from the custodial parent to the non-custodial parent.  This is important to note because many noncustodial parents believe that because the custodial parent  has sole physical custody of the child, the custodial parent will automatically be allowed to relocate with the child.  In such cases, it is also important to note that the burden is placed on the non-custodial parent to prove it would be detrimental to the child’s best interests to relocate.

The term “detriment” encompasses many concepts. At the end of the day, the noncustodial parent would need to provide facts and evidence that would prove it would be harmful for the child to relocate.  For example,  significantly impaired ability for the custodial parent to care for the child; thus, compromising the child’s safety and well-being.

Summary

Move-away care are highly technical and complicated. Regardless, it is not impossible for a noncustodial parent to prevail in his or her case if they can prove to the court that it would be to the detrimental for the child if the court allowed the child to relocate with the custodial parent.  Talk to an attorney if you feel you wish to contest a move-away case.

Move-Away Case Series:

Custody Cases—The Move-Away Case. Part 1–The Child’s Need for Stability and Continuity

Custody Cases–The Move-Away Case. Part 3–Custody Cases—The Move-Away Case. 

Custody Cases–The Move-Away Case. Part 4–Part 4: Emotional Bonds & Race Effecting Move-Away Cases & Sexual Conduct of Parents

Custody Cases–The Move-Away Case. Part 5–Sexual Orientation of the Parent(s)

Custody Cases–The Move-Away Case. Part 6–Religious Practices

 If you wish to discuss your custody case with a qualified family-law attorney, please contact our office.

Legal Disclaimer: Everything on this blog pertains to California law only and is written by an attorney licensed to practice only in the State of California. Further, information provided on this blog post or this website is to be used for general informational purposes only and is not to be construed as legal advice in any way shape or form. The underlying purpose of this blog post is to provide the reader with general information to use in talking with an attorney and/or as a general guide when conducting  their own research on their  particular legal matter.  Finally, keep in mind that if you are not a California resident and/or your matter is not based in California, the laws may differ in your state. In such cases, it is recommended that you seek legal assistance and/or review information that relates to the laws of your state.

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