This blog post is Part 3 in my 6-part blog series dealing with California custody move-away cases. As stated in Parts 1 and 2 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. Part 3 of this blog series focuses on the situation where one parent seeking to move shares joint physical custody of the child and what the California courts do under such circumstances.
The Law and The Court’s Role in Custody Move Away Cases—Joint Physical Custody
The court treats California custody move-away cases differently depending on whether, at the time of the request for move-away, there is a prior determination of joint physical custody or sole legal custody. This blog post focuses on the situation where the parents share joint physical custody of the child.
What is Required: When parents share joint physical custody under an existing order and one parent seeks to relocate with the child, the nonmoving parent who seeks a change of custody to prevent the child’s relocation needs to establish with the California court that that a change of custody would be in the child’s best interest. The California family-law court judge must determine de novo (new ) what primary custody arrangement is in the child’s best interest. (Here are some cases to read if you are interested: Marriage of Burgess (1996) 13 C4th 25, 40 n15, 51 CR2d 444; Marriage of Seagondollar (2006) 139 CA4th 1116, 1127, 43 CR3d 575 (cumulative procedural errors of trial court deprived father of due process; Brody v. Kroll (1996) 45 CA4th 1732, 53 CR2d 280.)
The court test used to determine sole or joint physical custody: the courts focus on the actual visitation arrangements of physical custody rather than on the terms of the order. (See Marriage of Lasich (2002) 99 CA4th 702, 121 CR2d 356 (mother who had children 80% or more of the time was their primary physical custodial, despite judgment’s “joint physical custody label); (Marriage of Biallas (1998) 65 CA4th 755, 76 CR2d 717 — joint physical custody requires significant time with both parents; alternate weekends, one need per week, and occasional hour in the evening is not considered sufficient time; Marriage of Whealon (1997) 53 CA4th 132, 61 CR2d 559 (when, although father had generous visitation rights, child spent vast majority of time with mother, father carried burden assigned to noncustodial parent who seeks change of custody).
What about when no final determination (or no prior court order) has been made regarding physical custody? In such cases, the court is authorized to use the “best interest of the child” standard rather than defaulting to the rule that grants the custodial parent the presumptive right to move , as established in a very famous case ( Marriage of Burgess (1996) 13 C4th 25, 34 51 CR2d 444, in deciding to transfer custody to the father, even though the mother had primary custody for the first 6 years of the child’s life, when the mother decided to move away. (Ragghanti v. Reyes (2004) 123 CA4th 989, 997, 20 CR3d 522. There is no requirement that the amount of the noncustodial parent’s visitation be increased when a move-away order is issued. (Marriage of Edlund & Hales (1998) 66 CA4th 1454, 1474, 78CR2d.)
It is important for the reader to distinguish between a parent who has sole physical custody against a parent who shares joint physical custody of a child. In the first situation, the noncustodial parent must show that the child will suffer detriment if the court were to allow the custodial parent to move away with the child; in the latter situation, the noncustodial parent must show it is in the child’s best interest for the child not to relocate. It is important to remember, that in such cases, the court will focus on the actual physical custody arrangement and not what is stated in the court’s order, e.g. “joint physical custody.” If the facts and circumstances show that that one parent doesn’t share actual joint custody, then the “noncustodial” parent will have the legal burden of proving to the court that it is in the child’s best interests for the child not to relocate.
Determine what actual visitation has been between the parties—and not what the order says. The parent wishing to change custody has the burden of proving it is in the child’s best interest. Custody cases are difficult; move-away custody cases are even more difficult. I have provided the cases in the event the reader wishes to read the cases themselves to achieve a better understanding of this complicated area of California custody law. Please note, however, that such cases often require the counsel of an experienced family law attorney. Feel free to contact our office if you wish to discuss your legal matter further.
Custody Cases–The Move Away Series
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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