Typical Move Away Issues During a Divorce

When a couple is divorced in California, issues regarding children are commonplace. One of the most contentious involves custodial rights. If the parent with primary custody decides to move to another county, city,or state the court should get involved if the non-custodial parent rejects the move.

Reasons Move Away Issues Occur

In 2012, the California Center for Judicial Education and Research issued a ‘Benchguide” regarding custody and visitation. Specifically, it addresses custody orders and ‘move-away’ disputes (change of child’s residence) and interprets the law accordingly. The court can prohibit the move if it would substantially prejudice the rights or welfare of the child.

Currently, the California law states that a reason for a move only needs to be ‘sound’ and in ‘good faith.’’ Broken down, it disallows a parent from moving a child out of spite. Ultimately, the court will decide if the move constitutes ‘‘good faith’’.

Conclusion of Move Away Issues

It should be noted that a move-away disagreement may occur at the onset of the initial custody hearing or at a later date when the judgement already in place. The custodial parent is not required to establish that the move is “necessary” or that it is in the “child’s best interest.” Instead, the non-custodial parent has the burden of showing that (1) the custodial parent has a “bad faith” reason for the move, or (2) the proposed move would cause detriment to the child. If the non-custodial parent presents evidence that the move would be to the child’s detriment, the court must determine whether a change of custody is in the child’s best interest.

Hopefully, when it is all said and done, both parents can agree to do what is in the best interest of the child. Dragging these issues through the courts indefinitely puts undue strain on the child(ren).

Example San Diego Move-Away Court Decision

San Diego’s 4th District court of Appeals heard a case titled Mark T. v. Jamie Z. where it overturned Judge Schall’s Order on a move-away matter. The background facts are that the parents got pregnant while dating, father filed a Petition to determine Parental Relationship, and a Judgment was eventually granted. The Court made an initial Custody Order permitting Father to have overnight visitation with the child after the child was one year old. Ten days later, Mother filed an Order to Show Cause (OSC) seeking an order that would allow her to move from San Diego to Minnesota where she had family that could help support her and the child. Mother stated that she was unable to find work in San Diego and was forced to borrow money from her family and to seek emergency aid. Mother also asserted that her family would be able to assist with childcare so she could return to school part-time and that Minnesota has a significantly lower standard of living. Father immediately filed an OSC seeking legal and physical custody of the child. The Parties eventually stipulated to undergo a psychological evaluation.

The evaluator found that Mother’s move to Minnesota and the support of her extended family would not substitute for the child’s having regular contact with what was termed as a “loving and capable father.” The evaluator found that Mother should be the primary caretaker until the child reaches the age of 5, at which time Father’s timeshare should be gradually increased to a 50/50 split. It was the evaluator’s conclusion that Mother should not be allowed to move from San Diego County.

Apparently, the Parties returned to Family Court Services (FCS) after the evaluation because the FCS Report found the Mother should be allowed to return to Minnesota because staying in San Diego would require her to live in poverty. The FCS Mediator also found that Mother’s request to move was not in bad faith.

Judge Schall’s ruling was closer to the evaluator’s findings when she expressed her intent to deny Mother’s request to move and increase Father’s timeshare to 33%. The final finding by the court included statements regarding the child’s need for stability, finding that Mother’s reason for moving was “suspect,” that Mother’s family should not be a substitute for a bond between Father and child, and concluding that there would be a long-term detrimental impact on the child if Mother was allowed to move. The Trial Court set up a visitation schedule for Father, continued Mother’s primary custody of the child, and made other orders regarding vacations, holidays and so forth, as if Mother would not move. Mother appealed.

The 4th District Court of Appeals found that when a Trial Court is faced with a move-away request, the Trial Court must decide that request based on an assumption that the move will take place and determine what custody arrangement is in the child’s best interest if the move occurs. The Appeals Court found that the Trial Court applied an incorrect legal standing in ruling on Mother’s move-away request because it based its Order on an assumption that Mother would not move if the Trial Court denied that request. The Appeals Court found this to be impermissibly coercive. Among other things, the Appeals Court found that the Trail Court should not have allowed Father’s attorney to question Mother regarding whether she would move without the child and that the improper motive for the move is only one factor for the Trial Court to consider and not an automatic grounds for a change of custody.

It appears to me that Judge Schall placed too much weight on her finding that the move-away request was “suspect.” She then apparently gave Mother an option of 1. move and lose your child or 2. don’t move and keep your child. The Court found this to be coercive in nature. However, this leaves Trial Courts in a difficult position because if it finds that the move-away should be denied, what is it to do next? Does it leave custody with the Mother that wants to move? Does it change custody to the Father? And, then what happens when Mother decides not to move? Is she required to file another OSC after having already gone through and lost a move-away trial?

While the case is informative on the issues of coercive orders and the standard that a Trial Court needs to use, it raises some difficult concerns on the practical application of Family Law in our mobile society. Situations like this and these types of cases are what make Family Law an interesting and relevant area of the law in which to practice.