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

This blog post is Part 4 in my 6-part blog series dealing with California custody move-away cases.  As stated in Parts 1, 2 and 3  of this series, about 65% of the inquiries I receive in my California Family Law Practice deal with custody matters.  California move-away cases are under the umbrella of custody. Part 4 of this blog series focuses on the effects of  the emotional bonds,  race affecting  California move-away cases and sexual conduct of parents.

Emotional Bonds Affecting Move-Away Cases

Custody cases are always the most-heart-wrenching of issues facing the family courts and families. Why? Well, for obvious reasons of course—one parent will be significantly deprived of their ability to remain in close contact with the child. And, for the child, losing the close ties that existed during the period the parents lived closed together. The psychological effects are so compelling and reverberating, that one can write an encyclopedia’s worth of information on this particular subject.

When the parties cannot reach agreement on the custody move-away case, they  turn to the courts for help.  As one California Solano judge once said, “they leave it to us to play ‘King Solomon’ by forcing us to make a decision that no judge wants to make.” With that said, the court must determine custody move-away cases based on a true assessment of the emotional bonds between the parent and child, looking into “the heart of the parent-child relationship . . . the ethical, emotional and intellectual guidance the parent gives to the child throughout his formative years, and often beyond.”  The court’s determination must also reflect a factual determination. In other words, how to best provide continuity of attention,  nurturing and care between the parent and child.  For those interested in reading a good case on this particular issue, refer to Burchard v. Garay (198) 42 C3d 531, 540. (Tip: most court cases can be located by Googling the case name.)

Does Race Affect Move-Away Cases?

Would it surprise you to learn that race does not affect move-away cases? Now-a-days, there is less concern about racial prejudice in society at large at is affects a child. In a 1984 case, the Supreme court held that custody could not be changed from the mother to the father on the basis of possible injury to the child from prejudice against the mother’s interracial marriage.   (Here’s the case: Palmore v. Sidoto (1984) 466  US 429, 80 L Ed 2d 421, 104 S Ct 1979.)

Sexual Conduct of the Parents

Much to the surprise (and chagrin) of many parents,  the sexual conduct (and practices) of one parent is irrelevant to custody cases. That’s the general rule. The exception is this: if a party can provide compelling evidence that the sexual conduct has significant bearing on the child’s welfare, then the court will fashion an order that takes the sexual practices of the alleged parent into account.  For example (albeit an extreme example), mother is a prostitute and brings paying customers into her home and performs sex in the home—resulting in the 9-year old child seeing mother engage in such activities.  Now compare this against the situation where a parent wishes to have sex with many people  while the child has overnight stay with this parent.  In this situation, the court cannot prevent the child from staying overnight with the parent as this is not deemed “compelling evidence “ affecting the child’s welfare. (Here’s another case: Marriage of Wellman (1980) 104 cA3d 992, 999k, 164 CR 148.  The appellate court felt the trial court “abused its discretion” to require that the mother with custody have no nonmarital overnight visitation with a member of the opposite sex in the child’s presence).


So what can we learn from these three factors?  In a nutshell: the courts will look at  extreme situations affecting a child’s welfare and their best interests. For example, it’s not enough for a noncustodial parent to prove that a parent has sex with a non-married person in the child’s presence. The court’s concern is this: is the conduct to such a degree that it will adversely affect the child’s welfare?  I believe the lesson we can learn at this point is that the court is looking for extreme behavior and the possibility of extreme consequences affecting child’s welfare and best interests. For example, while race is usually not a factor affecting move-away cases, it may be a factor, for instance, if the parent wishes to move to an area where a certain race (the child’s race) is highly profiled and targeted with death threats.   If the concerned parent is able to provide facts and evidence to support their allegation, there is a good chance the court will agree with the noncustodial parent and not allow the move-away.


As I have repeatedly stated in my previous blogs in this series, custody move-away cases are very complicated and highly technical.  Return back to this blog series for future publications on this series.  In the meantime, should you need legal assistance, please contact our office.

The Move-Away Series–All

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

Custody Cases–The Move-Away Case. Part 2–When the Moving Party Has Sole Physical Custody

Custody Cases–The Move-Away Case. Part 3–Custody Cases—When the Moving Party Shares Joint Physical Custody

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

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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