Move-Away Cases: A Brief Overview

By George H. Norton, of Counsel, Lakin · Spears, and Garrett C. Dailey, President, Attorney's Briefcase, Inc.

Reproduced from commentary in Lawgic's California Marital Settlements

Summary: Divorced parents who have joint custody of their children face a difficult dilemma when one parent wants to move to a relatively distant location. Recent California cases indicate that in joint custody situations, if one parent is functionally the primary parent, that parent is likely to be permitted by the courts to move and take the children along, even if he or she agreed earlier not to relocate.

Family Code section 7501 provides: "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."

Although straightforward on its face, interpretation of this statute has not been. The right of a custodial parent to relocate with a minor child when doing so would adversely affect the noncustodial parent's visitation has been the subject of many diverse and contradictory appellate decisions over the last decade. Many courts approved restrictions on the parent's right to relocate with the child and imposed burdens such as proving that move was, for example, "necessary" or "expedient, essential or imperative." Some devised multipart tests to guide the trial courts in making the determination. Others, on the other hand, simply held that the custodial parent was presumptively entitled to move.

The law was clarified by the Supreme Court's decision in In re Marriage of Burgess (1996) 13 Cal.4th 25, 51 Cal.Rptr.2d 444, 913 P.2d 473, which held that a custodial parent may change a child's residence, subject to the court's power to restrain a removal that would prejudice the child's rights or welfare. The Court held that no other burden may be placed on the relocating parent by the trial court. Basically, Burgess shifted the burden of proof from the parent wishing to move with the child to prove that the move was necessary, to the nonmoving parent to prove that the move will be detrimental and not in the child's best interests.

Burgess did hold that where there is an existing de jure and de facto joint custody arrangement, that a determination de novo must be made to determine which primary custody arrangement is in the child's best interests. Many family law attorneys have interpreted this to mean that they must attempt to obtain a joint custody order for what would otherwise be labeled the "noncustodial parent" at the outset. Then, if the other parent wishes to move with the child, their client has a right to a determination de novo, instead of a strong presumption in favor of the move. One recent case felt that the labels used had little significance where, as there, the parents had worked out not just a nominal, but an actual, joint custody arrangement. (Brody v. Kroll (1996) 45 Cal.App.4th 1732, 53 Cal.Rptr.2d 280.)

The court in In re Marriage of Biallas (1998) 65 Cal.App.4th 755, 76 Cal.Rptr.2d 717 agreed, finding that the label given to the custody sharing arrangement did not control. In Biallas, the judgment awarded joint legal custody to the parents with "primary physical custody" to the mother. The court noted that the term "primary physical custody" has no legal meaning. Instead, the trial court must look at the existing de facto arrangement to decide whether physical custody is truly joint or whether one parent has sole physical custody with visitation rights accorded other. There, the father had what the Court of Appeal characterized as "liberal" visitation, namely, one night per week and every other weekend, and the mother had sole physical custody. Thus, no impediment could be placed on her moving.

Although the custodial residence restrictions agreed to in any marital settlement agreement are important and will certainly be considered by the trial court, they will probably not control after Burgess. (See discussion below of In re Marriage of Edlund and Hales (1998) 66 Cal.App.4th 1454, 78 Cal.Rptr.2d 671.) The only assurance that a "noncustodial" parent has that he or she will have an opportunity to try to restrict the move is to be labeled a "joint custodial" parent from the beginning of the case and to exercise diligently the rights and responsibilities of a joint custodial parent. If that happens, the parent is entitled to greater procedural safeguards if the other parent seeks to move and, presumably, the child will benefit from the increased contact with both parents that results.

It appears that Burgess is being strictly applied by the appellate courts and that once it has been determined that the parent desiring to move is the primary custodial parent and is not making the move to frustrate the other parent's contact with the child, then the move will be permitted. Among the cases so holding are:

• In re Marriage of Condon (1998) 62 Cal.App.4th 533, 73 Cal.Rptr.2d 33, which held that the custodial parent could relocate to Australia with the children on the condition that she conceded to continuing jurisdiction of the California court.

• In re Marriage of Whealon (1997) 53 Cal.App.4th 132, 61 Cal.Rptr.2d 559, which held that the burden was on the noncustodial parent who only had visitation rights to show that the changed circumstances accompanied by the custodial parent's move required a change of custody.

• Ruisi v. Thieriot (1997) 53 Cal.App.4th 1197, 62 Cal.Rptr.2d 766, which held that, in light of Burgess, the question for the trial court on remand was not whether the custodial parent would be PERMITTED to move; the question was what custody arrangement should be made thereafter.

The only published appellate case restricting a custodial parent's right to move was the early Cassady v. Signorelli (1996) 49 Cal.App.4th 55, 56 Cal.Rptr.2d 545, which denied a custodial parent the right to move with her child when she had no plans for employment and the move seemed designed to frustrate the father's visitation.

Although a provision in a marital settlement agreement precluding a party from relocating provides some protection against that party's later attempting to move the children out of the agreed upon area, like any other order relating to children, it is modifiable.

In In re Marriage of Edlund and Hales (1998) 66 Cal.App.4th 1454, 78 Cal.Rptr.2d 671, the parties were awarded joint legal custody of their child. The mother was to have "primary physical custody." They agreed that the child's best interests required "frequent and continuing contact" and that neither would live outside of adjacent counties. The mother was the primary parent. The father was to see the child every other weekend and additional time on holidays. About one year later, the mother filed a motion to modify judgment to permit her and the child to relocate to Indiana. She alleged that her fiancé had been transferred and this was a big opportunity for him. She further alleged that the Midwest was her home, that she had family there, and that the schools there were better than in California, which were "among the worst in the country." The Court of Appeal approved of her moving and held that once a court determines that the primary parent's motives for moving are in good faith and not to frustrate visitation, it cannot weigh the wisdom of the move. The fact that the parent had previously agreed and been ordered not to change the child's residence from an agreed upon area was not a reason to deny permission for the move.

Thus, although these provisions are recommended where appropriate, they do not guarantee that the primary custodial parent will not be granted permission to move if s/he requests it.