Stanley Mosk Courthouse
Scott J. Nord
Judge Los Angeles County Superior Court
Whittier College School of Law
In family law, when one parent wishes to relocate with the minor child to a geographically different location, it is commonly referred to as a "move-away." A parent seeking to relocate with the minor child must either reach an agreement with the other parent to allow for the relocation or, in the alternative, obtain a court order permitting the relocation. But what really defines a move-away? Is it a move-away when there is a change to the minor child's current city, county or state? Is a move-away stipulation or order required when the relocation results in the minor child having to change schools? If the child is not school-aged and the move does not affect the current visitation schedule, is permission from the other parent or the court still required?
Consider this hypothetical: Mother and Father have one minor child, age 8. The parties were never married but reached an agreement in mediation three years ago for shared joint legal custody with Mother having primary physical custody of the minor child. Father has extended alternate weekends (Thursday after school to Monday morning drop-off) visitation, a shared holiday schedule, and a week on/week off visitation arrangement during the summer break. Mother has obtained new employment, which requires her to move from her current residence in Lancaster to Pomona. Father has filed a Request for Order to prevent Mother from moving with the minor child and seeking physical custody. Father contends the move is almost 100 miles away and seeking physical custody, and that such a distance creates a hardship for him.
Mother files a response stating that since she is not leaving Los Angeles County, this is not a move-away. Nevertheless, the current visitation schedule needs to be modified because the distance prevents the current schedule from being practical. Mother also points out that Father is not in the same school district as Mother so, with either parent, the minor child will be forced to change schools. Is this a move away?
Temporary Restraining Orders
When a proceeding for dissolution, legal separation, or nullity (pursuant to Family Code Section 2040) or petition under the Uniform Parentage Act (pursuant to Family Code Section 7700) is filed and personally served upon the respondent, statutory temporary restraining orders contained in the summons are enforceable against both parties in any part of California by any law enforcement agency when shown a copy of the order. Family Code Sections 232 and 233(a) and (b). These temporary restraining orders are commonly called "automatic temporary restraining orders," or "ATROS." A willful and knowing violation of the order by removing the child from the state without consent or court order is a violation of the restraining order and is criminally punishable. Family Code Section 233(c).
However, Mother has not left the state with the minor child. As such, she is not in violation of the ATROS. Further, a common misconception is that the ATROS becomes effective upon filing the petition against both the petitioner and the respondent. While the petitioner is subject to the ATROS upon filing, the ATROS are not in effect against a responding party until the respondent is served with the summons and petition. Family Code Section 233(a). Therefore, a responding party who had moved with a minor child before any action was served cannot be held in violation of the ATROS even after they are served with the summons and petition.
Best Interest of the Child
Family Code Sections 3011 and 3040 provide that in deciding between competing parental claims to physical custody, the court must make an award "according to the best interests of the child" See Burchard v. Garay, 42 Cal. 3d 531, 534 (1996). Family Code Section 3011, lists specific factors, "among others," that the trial court must consider in determining the "best interest" of the child in a proceeding to determine custody and visitation: "(a) The health, safety, and welfare of the child; (b) Any history of abuse by one parent against the child or against the other parent .... ; (c) The nature and amount of contact with both parents." Additionally, Section 3040(d) states, "This section establishes neither a preference nor a presumption for or against joint legal custody, joint physical custody, or sole custody, but allows the court and the family the widest discretion to choose a parenting plan that is in the best interest of the child, consistent with this section." "The court is given a wide discretion in such matters, and its determination will not be disturbed upon appeal in the absence of a manifest showing of abuse and '[e]very presumption supports the reasonableness of a decree.'" Gudelj v. Gudelj, 41 Cal. 2d 202, 208-09 (1953), citing Runsvold v. Runsvold, 61 Cal. App. 2d 731, 733 (1943).
Which Parent Has Physical Custody?
Joint physical custody exists where the child spends significant time with both parents. See Family Code Section 3004. For example, in both In re Marriage of McGinnis, 7 Cal. App. 4th 473, 475 (1992), and In re Marriage of Battenburg, 28 Cal. App. 4th 1338, 1342 (1994), the children spent four days a week with one parent and three days with the other. However, in cases like In re Marriage of Whealon, 53 Cal. App. 4th 132, 136 (1997), and In re Selzer, 29 Cal. App. 4th 637, 639 (1994), where the fathers had alternate weekends and one weeknight every week, as well as other periods agreeable to the parties, it was determined that custody was not joint custody. Those cases have held that Mother had effectively sole physical custody, and Father had liberal visitation rights. See also In re Marriage of Biallas, 65 Cal. App. 4th 755, 760, (1998).
Burgess
In In re Marriage of Burgess, 13 Cal. 4th 25 (1996), Father and Mother were married and had two children. Both parents were employed by the State Department of Corrections at the state prison in Tehachapi. In July 1992, the trial court entered a Stipulation and Order dissolving the marriage and providing for temporary custody and visitation per a mediation agreement between the parties. The parents shared joint legal custody and agreed to a detailed schedule for weekly visitation by the father and an alternative schedule for biweekly weekend visitation, depending on his work schedule. Id. at 29-30.
At a hearing concerning custody, the mother testified that she had accepted a job transfer to Lancaster and planned to relocate in June of that year. The travel time between Lancaster and her home in Tehachapi was approximately 40 minutes (roughly 43 miles). The father testified that he would not be able to maintain his current visitation schedule if the children moved to Lancaster; he wanted to be their primary caretaker if the mother relocated. Tehachapi is in Kern County, and Lancaster is in Los Angeles County. Id. at 29-30. "The trial court issued a ruling providing that the father and the mother would share joint legal custody, with the mother to have sole physical custody. It retained the current visitation schedule but provided that after June 1993, 'the father will have visitation with the children, assuming the wife moves to Lancaster, on alternate weekends ... with at least one three-hour midweek visitation.'" Id. at 30.
Father appealed the trial court's decision. The appellate court overturned the trial court's decision concluding that "no showing of necessity was made. [T]he reality here is that in moving, [the mother] primarily gained convenience." Id. at 31. The matter was appealed to the California Supreme Court.
Presumption for Relocation
Family Code Section 7501(a) provides that "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." This is consistent with the view that the child's interest in stable custodial and emotional ties, custody lawfully acquired and maintained for a significant period will have the effect of compelling the noncustodial parent to assume the burden of persuading the trier of fact that a change is in the child's best interest. See Burgess, 13 Cal. 4th at 37-38.
In In re Marriage of LaMusga, 32 Cal. 4th at 1072, 1093 (2004), the California Supreme Court noted that "the paramount need for continuity and stability in custody arrangements -- and the harm that may result from disruption of established patterns of care and emotional bonds with the primary caretaker -- weigh heavily in favor of maintaining ongoing custody arrangements." In In re Marriage of Ciganovich, 61 Cal. App. 3d 289, 293 (1976), the court stated that "[a]s a general rule a parent having child custody is entitled to change residence unless the move is detrimental to the child." See Forslund v. Forslund, 225 Cal. App. 2d 476, 494 (1964); Evans v. Evans, 185 Cal. App. 2d 566 (1960). A child's relocation which may practically deprive the non-moving party of their visitation rights is generally insufficient to justify restraint on the moving parent's free movement. See Walker v. Superior Court, 246 Cal. App. 2d 749, 754 (1966); Stack v. Stack, 189 Cal. App. 2d 357, 367 (1961).
With these principles in mind, in Burgess, 13 Cal. 4th at 37-38, the Supreme Court stated that "the same allocation of the burden of persuasion applies in the case of a custodial parent's relocation as in any other proceeding to alter existing custody arrangements: '[I]n view of the child's interest in stable custodial and emotional ties, custody lawfully acquired and maintained for a significant period will have the effect of compelling the noncustodial parent to assume the burden of persuading the trier of fact that a change [in custody] is in the child's best interests'" (citing Burchard v. Garay, 42 Cal. 3d at 536). In short, the Supreme Court placed the burden on the noncustodial parent, not the moving parent, as the appellate court had done.
Is the Move Necessary or for an Ulterior Reason?
In Burgess, the Court of Appeal, following a line of prior cases, overturned the trial court decision by concluding that because the mother had failed to carry the burden of establishing that the relocation to Lancaster was "necessary," physical custody of the minor children may be transferred to the father. However, the Supreme Court, in overturning the Court of Appeal that decision, held that the "necessity" of relocating frequently has little, if any, substantive bearing on the suitability of a parent to retain the role of a custodial parent. "A parent who has been the primary caretaker for minor children is ordinarily no less capable of maintaining the responsibilities and obligations of parenting simply by virtue of a reasonable decision to change his or her geographical location." Burgess, 13 Cal. 4th at 36.
While the necessity for a move is not an element required to be established by the custodial parent, a parent moving for ulterior reasons may a basis to deny the relocation. In LaMusga, Cal. 4th at 1095, the Supreme Court stated that "negative motives for the move, i.e., [to] frustrate contact between the father and the child" may be a basis to deny a move-away request." Further, a court cannot issue a conditional order "for the purpose of coercing the custodial parent into abandoning plans to relocate. Nor should a court issue such 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."
Initial Versus Final Custody Order
In Burgess, the matter involved an initial order of custody and visitation, compared to an existing judicial final custody order from a judgment or other evidentiary proceeding (i.e., a Montenegro-Diaz order). At the initial custody and visitation hearing, the standard applied in making a custody and visitation determination is based on the best interest of the child. See Family Code Sections 3011 and 3040). After a final custody order exists, the noncustodial parent seeking to alter the order for legal and physical custody can do so only on a showing that there has been a substantial change of circumstances so affecting the minor child that modification is essential to the child's welfare. Burgess, 13 Cal. 4th at 37-38.
This changed circumstance rule requires a two-step process. The first step beings with the premise that "[o]nce it has been established [under a judicial custody decision] that a particular custodial arrangement is in the best interests of the child, the court need not reexamine that question. Instead, [the court] 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 showing required is substantial." Id.
The second step requires a showing of "detriment" by the nonmoving parent. "In a move-away case, 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." Id. at 38. This standard creates two mammoth hills that the noncustodial parent must overcome: (1) a material change in circumstances and (2) detriment that is essential or expedient for the welfare of the minor child. The detriment must be child centered not parent centered parent (i.e. seeing the minor child less or the parent will be upset by the move),
Further, while Family Code Section 3020(b), states that "[t]he Legislature finds and declares that it is the public policy of this state to ensure that children have frequent and continuing contact with both parents," the however "frequent and continuous contact" requirement cannot have a chilling effect on preventing a move-away. Section 3020 merely requires, in the light of the circumstances, the court to make appropriate custody arrangements that serve the best interest of the children. Burgess, 13 Cal. 4th at 34.
Joint Physical Custody
In Burgess, the California Supreme Court suggests "a different analysis may be required when parents share joint physical custody of the minor children under an existing order and in fact, and one parent seeks to relocate with the minor children." Id. at 40. Whereas the issue under Burgess is "whether a change in custody following relocation is "'essential or expedient for the welfare of the child,'" the trial court in a de facto joint custody situation may modify or terminate the custody order if the best interest of the child requires it to do so, and further "must determine de novo what arrangement for primary custody is in the best interest of the minor children." In re Marriage of Condon, 62 Cal. App. 4th 533, 550-51 (1998), citing Burgess, 13 Cal. 4th at 40.
In cases where both parents share a joint physical custody arrangement, and a party seeks to relocate with the minor child, a full adversarial hearing must precede any out-of-state move-away order, however denominated. Andrew V. v. Superior Court, 234 Cal. App. 4th 103, 107 (2015). On the other hand, where a custodial parent has sole legal and physical custody, the noncustodial is not entitled to an evidentiary hearing without a preliminary showing of proof. In In re Marriage of Brown & Yana, 37 Cal. 4th 947, 965 (2006), the Supreme Court stated that "a trial court in a move-away case that diligently inquiries into the matter of detriment in a formal court hearing, and duly considers the noncustodial parent's claims, evidence, and offers of proof but properly finds them insufficient to establish the detriment required for a custody modification under the changed circumstance rule, the court does not err or abuse its discretion in denying custody modification without taking the further step of holding an evidentiary hearing with live testimony."
Additionally, a court cannot issue any orders which allow for a move-away on a temporary basis irrespective of any custodial arrangement. Andrew V., Cal. App. 4th at 107; see also California Code of Civil Procedure Section 917.7 (30 day stay on removing a minor child from the state from entry of judgment or order).
LaMusga Factors
In a move-way case, the court is required to consider the "LaMusga factors," when deciding whether to modify a custody order in a move-away case. In LaMusga, the court, expanding on Burgess, identified the following factors that should be considered: "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." LaMusga, 32 Cal. 4th at 1101. The failure to consider the factors is an abuse of discretion in ordering a change in the existing custody arrangement without doing so. Jane J. v. Superior Court, 237 Cal. App. 4th 894, 906 (2015). However, the court is free to give whatever weight it desires to the factors in making a decision regarding custody and visitation.
Further, it is not enough to argue that it is time to switch sides to give the other parent the opportunity to take control. Id. at 903. Nor can changes in custody be made based on speculation or intuition. In Speelman v. Superior Court, 152 Cal. App. 3d 124 (1983), a trial court was found to have abused its discretion when it ordered a change in physical custody for a 6-year-old child from the father in Massachusetts to the mother in California based on the court's "gut reaction" and that "it's appropriate for the interests of the child to give him a chance to succeed with his mother at this time. And if it doesn't work out, in a year from now we can always find that we've made a mistake."
Back to Our Hypothetical
In Burgess, the court deemed the mother's relocation a move-away, where the distance was 40 or 50 miles, and the move was from Kern County to Los Angeles County. In our hypothetical above, Mother is not leaving Los Angeles County, but the distance is 100 miles, and the minor child would be required to change schools with either parent.
As stated in Burgess, 13 Cal. 4th 25 at 39, "bright line rules in this area are inappropriate: each case must be evaluated on its own unique facts." So, is it a move-way? It depends...