2nd Appellate District, Division 2

Anne K. Richardson

Associate Justice

Stanford Law School, 1989

In family law, "move away" cases involve some of the most emotionally challenging decisions a judge has to make. When one parent wants to move with a child outside the state, or even a significant distance within the state, a court may be called on to decide the fate of a family in which both parents are perfectly good parents - but where what one parent wants for his or her child will mean that the other parent will have much less time around that child.

These cases are also challenging analytically. The issue could arise at various times in the life of the case: before any orders have been made on custody, when interim orders have been made by a court, or when a final order has been made. Moreover, the parties may have joint physical custody or one parent may have sole custody. The standard will differ in each of these circumstances. Indeed, determining what the standard is for any individual case, is often the subject of litigation itself and must be determined before the fact finding can begin.

I. Background

Under California law, there is no preference or presumption for sole or joint legal or physical custody; instead, the court and the family have "the widest discretion to choose a parenting plan that is in the best interest of the child." (Fam. Code §3040(d).)

Moreover, while family law is concerned with both legal and physical custody, for purposes of move-away cases, it is physical custody that must be examined. (Marriage of Burgess (1996) 13 Cal.4th 25, 28, fn. 1.)

A. Definition of sole and joint physical custody

As to the potentially all-important determination of whether physical custody is sole or joint, the statutory language is fuzzy, while the caselaw is sometimes surprising. Statutorily, "joint physical custody" means that "each of the parents shall have significant periods of physical custody," Fam. Code §3004, and sole physical custody 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." (Fam. Code §3007.)

While there is no bright line rule, courts have held that alternate weekends with some weekday visits is generally sole physical custody, while nearly equal time constitutes joint physical custody. "Where children shuttle [] back and forth between two parents ... so that they spend nearly equal times with each parent, or where the parent with whom the child does not reside sees the child four or five times a week, this amounts to joint physical custody. ... But where ... a father has a child only 20 percent of the time, on alternate weekends and one or two nights a week, this amounts to sole physical custody to mother with 'liberal visitation rights' for the father." (Marriage of Lasich (2002) 99 Cal.App.4th 702, 715 [citations omitted].)

Although frequently used in family law, the term "primary physical custody" does not appear in the provisions of the Family Code relating to custody. (Marriage of LaMusga (2004) 32 Cal.4th 1072, 1081, fn.1.)

B. No Orders to Prevent a Move

Some parties may be tempted to focus on the issue of whether a parent should be permitted to move, rather than on who should have custody if in fact the moving parent does move.

It is by now clear that "when the trial court is faced with a request to modify the existing custody arrangement on account of a parent's plan to move away (unless the trial court finds the decision to relocate is in bad faith), the trial court must treat the plan as a serious one and must decide the custody issues based upon that premise. The question for the trial court is not whether the parent may be permitted to move; the question is what arrangement for custody should be made [if and when the custodial parent moves.]" (F.T. v. L.J. (2011) 194 Cal.App.4th 1, 22 [citation omitted, emphasis in the original].)

"[A] court must not issue a conditional order for the purpose of coercing the custodial parent into abandoning plans to relocate. Nor should a court issue an order expecting that the order will not take effect because the custodial parent will choose not to relocate rather than lose primary physical custody of the children." (LaMusga, supra, 32 Cal.4th at p. 1098.)

II. Standards for Deciding a Move-Away

A. Where No Orders or Temporary Custody Orders Are in Effect: Best Interest of the Child Standard

In an initial custody determination, regardless of whether the parties have de facto sole or joint physical custody, the standard is best interest of the child, and the court must look to "all the circumstances bearing on the best interest of the minor child." (Burgess, supra, 13 Cal.4th at pp. 31-32.) When determining the best interest of the child, relevant factors include the health, safety, and welfare of the child, any history of abuse by one parent against the child or the other parent, the nature and amount of contact with both parents, and any history of substance abuse. (Fam. Code §3011.) Fam. Code §3044 provides that there is a "rebuttable presumption that an award of sole or joint physical or legal custody of a child to a person who has perpetrated domestic violence is detrimental to the best interest of the child."

If the parties have reached a temporary or interim agreement, or a court has made a temporary or interim order as to custody, the best interest standard still applies, subject to the same analysis as above where no custodial orders are in effect. Burgess was, in fact, a case involving an interim stipulation and order, despite its holding that "this matter involved an initial order of custody and visitation." (13 Cal.4th at pp. 29, 37.)

A stipulated custody order is considered a temporary order unless the parties specifically state their intention that it be a final order. In Montenegro v. Diaz (2001) 26 Cal.4th 249, 258 the Supreme Court clarified that "a stipulated custody order is a final judicial custody determination for purposes of the changed circumstance rule only if there is a clear, affirmative indication the parties intended such a result."

i. Sole custody

Where one parent has de facto sole physical custody of a child in the absence of any interim orders, the standard is best interest of the child, but with a caveat. Although Burgess reaffirmed the "best interest of the child" standard for non-final orders, it also held that a "trial court must take into account the presumptive right of a custodial parent to change the residence of the minor children, so long as the removal would not be prejudicial to their rights or welfare." (Burgess, supra, 13 Cal.4th at p. 32 (citing Fam. Code §7501) [emphasis added].) According to Burgess, this means that in considering all the circumstances affecting the "best interest," it "may consider any effects of such relocation on their rights or welfare." (Id.)

The Burgess decision famously rejected what seems to have been a common approach in the past, namely that a parent who wants to move away should have to show that the move is "necessary." The Burgess court noted California's public policy supporting "frequent and continuing contact with both parents after the parents have separated or dissolved their marriage" as codified in Fam. Code §3020. It held, however, that imposing an additional burden of proof that the move is necessary would abrogate the "general rule [that] a parent having child custody is entitled to change residence unless the move is detrimental to the child." (Burgess, 14 Cal.4th at p. 35 [quoting Marriage of Ciganovich (1976) 61 Cal.App.3d 289, 293].)

Thus, in a pre-judgment, non-final order case, the standard to apply where one party has sole custody is "best interest of the child," with the nuance that there is a presumption that a parent with sole physical custody may change the residence of the child so long as the move is not detrimental to the child. (See also Hogoboom & King, California Practice Guide: Family Law (The Rutter Group 2020) ¶ 7:560 ("By statute, the parent with sole physical custody of the children has the presumptive right to change the children's residence ... court will not interfere with that decision (enjoining the relocation or changing custody) unless the move is detrimental to the child." [Emphasis in the original].)

There has been some confusion as to whether the presumption stated in Burgess and in §7501 only applies to final custody orders or applies equally to initial orders. In F.T. v. L.J., supra, 194 Cal.App.4th at pp. 18-20, the court held that the section 7501 rebuttable presumption does not apply unless there is a "final" custodial determination, citing Burgess, 13 Cal.4th at pp. 37-38. In F.T., there was an initial stipulation regarding custody which, as many stipulations are, had been signed by the Court. (194 Cal.App.4th at p. 19.) However, in Burgess, the factual situation similarly involved a stipulation and order providing for "temporary custody and visitation in accordance with a mediation agreement between the parties." (13 Cal.4th at p. 29.) The mother had "sole physical custody" under a temporary agreement, yet the Supreme Court still held that the Section 7501 presumption applied.

ii. Joint Custody

Where the parties share joint physical custody, in an initial custody determination, the standard remains the best interest of the child. However, arguably the presumption set forth in Family Code §7501 would not apply, because both parties share custody.

B. Final Custody Orders In Effect

Where final orders are in effect, as will be seen below, the standard is very different depending on whether the parties share joint custody or one parent has sole custody.

i. Sole Custody

Where one party has a final court order of sole custody, the standard of whether a move should give rise to a change in custody to the noncustodial parent is "substantial change of circumstances." (Burgess, supra, 13 Cal.4th at p. 37.)

In Montenegro, supra, the Supreme Court noted that "[u]nder the so-called changed circumstances rule, a party seeking to modify a permanent custody order can do so only if he or she demonstrates a significant change of circumstances justifying a modification." (26 Cal.4th at p. 256 [citing Burgess, supra, 13 Cal.4th at p. 37].) As the Supreme Court has explained, "[t]he changed circumstances rule is not a different test, devised to supplant the statutory test, but an adjunct to the best-interest test. It provides, in essence, that once it has been established that a particular custodial arrangement is in the best interest of the child, a court need not reexamine that question. Instead, it should preserve the established mode of custody unless some significant change in circumstances indicates that a different arrangement would be in the child's best interest. The rule thus fosters the dual goals of economy and protecting stable custody arrangements." (Burchard v. Garay (1986) 42 Cal.3d 531, 535.)

The Supreme Court in Burgess held that the ruling it made as to initial orders also applies in cases arising after a judgment or final custody order has been entered: there is no burden of proving that the move is "necessary." (13 Cal.4th at p. 37.)

There is further guidance from the Supreme Court in the context of sole physical custody after a final order, from Marriage of Brown and Yana (2006) 37 Cal.4th 947. In that case, mother (Brown) had been awarded sole legal and physical custody of the child "after a contested evidentiary hearing on custody." (Id. at p. 953.) After mother made her intent to move known, father filed an RFO to restrain any change of residence, and mother filed an RFO to change father's visitation schedule upon her move.

The question presented to the Supreme Court was: "In a case where sole legal and sole physical custody of a child has been awarded to one parent after a contested custody dispute, and the custodial parent's subsequent decision to relocate with the child is opposed by the noncustodial parent, is the noncustodial parent entitled to an evidentiary hearing on the matter?" (Id. at p. 955.)

The Court held that the custodial parent did not have the absolute power to relocate, emphasizing the second half of §7501(a): "A parent entitled to the custody of a child has a right to change the residence of the child, subject to the power of the court to restrain a removal that would prejudice the rights or welfare of the child." (37 Cal.4th at p. 957 [emphasis in the original].) The Court held that "even a parent with sole legal and sole physical custody may be restrained from changing a child's residence, if a court determines the change would be detrimental to the child's rights or welfare." (Ibid.) Therefore, the court concluded that "where a final custody order had awarded sole legal and sole physical custody to the parent seeking to relocate with a child, the noncustodial parent opposing the relocation may seek and obtain a custody modification based on a proper showing pursuant to the changed circumstance rule." (Id. at p. 959.)

The Court then moved to the question of what evidentiary hearing was appropriate. It upheld the trial court's ruling denying the noncustodial parent an evidentiary hearing on the move-away after hearing that parent's offer of proof as to the detriment that the child would suffer. Concluding that the allegations and offer of proof were generalized issues relating to the new location, the trial court denied the hearing. The Supreme Court affirmed: "Needless to say, an evidentiary hearing serves no legitimate purpose or function where the noncustodial parent is unable to make a prima facie showing of detriment in the first instance, or has failed to identify a material but contested factual issue that should be resolved through the taking of oral testimony." (37 Cal.4th at p. 962.)

What kind of detriment would support a finding that a change of custody should occur should the custodial parent move? In Marriage of Melville (2004) 122 Cal.App.4th 601, 603, 612, the court cited the fact that the child, who had Down's syndrome and a heart condition, would not have adequate educational or medical care in the new location and would not transition well to a new school or new surroundings. Another example is LaMusga, discussed below, in which the Supreme Court upheld the trial court's order that the custodial parent tended to alienate the children from the noncustodial parent. (32 Cal.4th at p. 1085.)

ii. Joint Custody

On the other hand, where the parties share joint custody following a final order, the test is de novo.

If the parties share custody "under an existing order and in fact," the changed circumstances test "is not appropriate" because at that point, maintaining the status quo becomes a "practical impossibility." (Ragghanti v. Reyes (2004) 123 Cal.App.4th 989, 997.) In that situation, the "trial court must determine de novo what arrangement for primary custody is in the best interest of the minor children." (Id., quoting Burgess, supra, 13 Cal.4th at p. 40, fn.12.)

iii. The factors in LaMusga - a case of a final order which granted sole physical custody

The LaMusga case provides family law judges and practitioners very helpful factors that should be considered to get at the best interest standard in a move-away case.

In LaMusga, the parties had a hearing that resulted in an order of joint legal custody, with the mother having "primary" physical custody. (32 Cal.4th at pp. 1080-81.) Father's visitation was increased over a period of weeks to a final schedule of every Tuesday and Wednesday from 4 pm to 7 pm and every other weekend from Friday at 5 pm to Sunday at 6 pm. Judgment was then entered, making this custody ruling a final order. Additional schedules for vacations and holidays were granted in two separate requests. It was at that point that mother filed a request to modify the visitation order to allow her to move to Ohio with the children. (Id. at p. 1081.)

This is a final order then, with a judgment giving mother effectively sole physical custody and father having visitation. At the outset of the decision, the Court states that "the noncustodial parent bears the initial burden of showing that the proposed relocation of the children's residence would cause detriment to the children, requiring a reevaluation of the children's custody." (Id. at p. 1078.) The Court goes on: "If the noncustodial parent makes such an initial showing of detriment, the court must perform the delicate and difficult task of determining whether a change in custody is in the best interests of the children." (Id.)

Later, the Court recited the holdings in Burgess regarding the standard for initial custody orders and the changed circumstances test, see 32 Cal.4th at pp. 1087-1089, and noted that it was applying the changed circumstances test in a footnote. (Id. at p. 1088, fn. 2.)

The high court finished its section on which standard to apply with this quote from Burgess which seems to have informed its final ruling:

"[B]right line rules in this area are inappropriate: each case must be evaluated on its own unique facts. Although the interests of a minor child in the continuity and permanency of custodial placement with the primary caretaker will most often prevail, the trial court, in assessing 'prejudice' to the child's welfare as a result of relocating even a distance of 40 or 50 miles, may take into consideration the nature of the child's existing contact with both parents ... and the child's age, community ties, and health and educational needs. Where appropriate, it must also take into account the preferences of the child."

(LaMusga, 32 Cal.4th at p. 1089, quoting Burgess, 13 Cal.4th at p. 39.)

The Court provided the following factors for superior courts to consider in exercising their discretion "when deciding whether to modify a custody order in light of the custodial parent's proposal to change the residence of the child":

- the children's interest in stability and continuity in the custodial arrangement;

- the distance of the move;

- the age of the children;

- the children's relationship with both parents,

- the relationship between the parents including, but not limited to, their ability to communicate and cooperate effectively and their willingness to put the interests of the children above their individual interests;

- the wishes of the children if they are mature enough for such an inquiry to be appropriate;

- the reasons for the proposed move; and

- the extent to which the parents currently are sharing custody.

(32 Cal.4th at p. 1101.) Note that none of these factors directly concern the change in circumstances that is mandated when a final custodial order is in place giving one parent sole legal custody. One way of reading LaMusga is that the Court must first find a change in circumstances/detriment, and then once it has done so, it will complete the best interests analysis with the factors noted above. (Id. at p. 1078.) However, LaMusga does not specifically state exactly what was the change in circumstances there. Its discussion of detriment related to mother's inability to ensure contact with the father for the children. (Id. at p. 1083-85.)

Finally, the Court noted that despite language in some cases suggesting that the changed circumstances must consist of more than the fact of the proposed move (see, e.g., Marriage of Edlund & Hales (1998) 66 Cal.App.4th 1454, 1469) in fact, in some cases "the detriment to the child's relationship with the noncustodial parent that will be caused by the proposed move, when considered in light of all the relevant factors, may warrant denying a request to change the child's residence or changing custody." (Id. at p. 1096-97.)

While the LaMusga factors may only apply to considering a move away where one parent has sole custody after a final order, in practice, many courts and parties find them useful as thoughtful considerations in other circumstances, such as where the parties' custodial share is arguably joint custody, and just to move beyond the vague dictates of the "best interest" standard by using more concrete guideposts.

III. Other Issues That Commonly Arise

A. Parent's Past Behavior May be Considered but Order Must Not be Punishment

It may be tempting to argue that a parent who has engaged in a violation of a prior order, or has not been an effective coparent, should not be given what he/she wants: the move or denial of the other parent's requested move. However, the Supreme Court has made clear the limits of this argument: "the superior court's function in determining custody is not to reward or punish the parents for their past conduct, but to determine what is in the best interests of the children. ... But this does not mean that the court may not consider the past conduct of the parents in determining what future arrangement will be best for the children." (La Musga, supra, 32 Cal.4th at p. 1094 [citations omitted].)

B. Thirty Day Stay Before Effective

There is a statutory requirement of entering a 30 day stay after any order "allowing, or eliminating restrictions against, removal of the minor child" in order to allow a writ to be filed. (Code Civ. Proc. §917.7.)

Decisions regarding where children should live when one parent proposes to move away have caused substantial angst to parents, their lawyers, and the judicial officers making them, as well they should. Further caselaw will be welcome on this topic answering the myriad questions that arise in real-world application of these guidelines.