Since Americans both divorce and move in significant numbers it is no surprise that move-away and relocation issues between divorced parents arise frequently.
The consequences of a move-away case can profoundly impact both the parents and their children and the cases are far more conflicted than the typical high-conflict child custody dispute where the parents fight over the amount of time each will have with the children. The children, caught in the middle of their parents' battle, often feel pressured to choose between their parents, and even when there is not such a choice, the children's relationship with the non-custodial parent is often changed forever.
In 1996, the California State Supreme Court in Burgess v. Burgess made it much easier than it had been for primary custodial parents to move-away. In Burgess, the mother wanted to move with the couple's two children to a town about 40 minutes away. After winning in the Superior Court and losing in the District Court of Appeal, the wife successfully convinced the California State Supreme Court that the trial judge made the right decision in allowing her to move with the children.
The Supreme Court held that a custodial parent who is requesting to move with the children only needs to convince the court that the move would be in the children's best interests. The moving parent no longer had to show that there was an urgent need for the children to move or that a dire situation justified the move. To hold otherwise, the Court said, would require it to ignore the reality that people often relocate after they get divorced. Under Burgess, the only limit on the custodial parent's right to move was the requirement that the move could not be based on a "bad" reason, such as to impede the non-custodial parent's time with the child.
Move-away disputes generally arise where there is an already existing child custody order and the custodial parent wants to relocate the child to another area. In its decision, the Supreme Court said that the nature of the existing child custody order would determine the scope of the court's inquiry in ruling on the matter. So, in cases where the custodial parent has the child for a majority of the time, the non-custodial parent has the burden of convincing the court that there is a "change of circumstances" that require the court to award custody to the non-custodial parent. However, where the parents have a shared custodial arrangement, the trial court was required to make a full redetermination of what custody order was in the best interests of the children.
Unfortunately, however, the Court did not define what it meant by a "shared" custodial arrangement. A general definition was developed in several decisions by the California District Courts of Appeal, in the years following Burgess holding that a shared custody arrangement exists if the noncustodial parent had physical custody at least 40% of the time.
In 2004, 5he California State Supreme Court reconsidered the issue in the Marriage of Lamusga, where the Court reaffirmed and further clarified its Burgess ruling.
In Lamusga the mother asked the court's permission to move from California to Cleveland with the couple's two sons. The Superior Court judge denied the mother's request and the Court of Appeal reversed. The Supreme Court reversed the Court of Appeal and thereby restored the Superior Court's denial of the mother's request.
The Court provided a list of factors to be considered when deciding whether to modify a custody order in a move-away situation.
- If the move-away request is part of an initial child custody determination, the court's decision is to be based on a determination of what arrangement is in the best interests of the child. (See section 3, below)
- If the request is for a modification of an existing custody order, it depends upon the nature of the current custody arrangement.
- If the parents are sharing physical custody of the child (i.e. at least a 60%/40% sharing) the decision is based on what is in the children's best interests. (See section 3, below)
- If one parent has physical custody of the child for more than 60% of the time, that parent has a presumptive right to move unless the non-custodial parent successfully convinces the court that
- the move is being made in bad faith, i.e. is motivated by the custodial parent's desire to reduce or eliminate the other parent's contact with the children, or
- the move would be detrimental to the welfare of the child. In determining if the move would be detrimental to the child, the court is to consider the effect the move will have on the child's relationship with the other parent after the move.
- The children's need for stability and continuity.
- The distance of the move.
- The age of the children.
- The children's relationship with both parents.
- The relationship between the parents, including 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.
- The extent to which the parents currently are sharing custody.
- The parent who is opposing the move-away request has the right to request a child custody evaluation by a court-appointed expert.
Consequently, parents who hope to move away should not act in a way that compromises or undermines the relationship between the child and the other parent. Nor should they speak negatively about the other parent to, or in the presence of, the children. A calendar recording time with each parent should be maintained. A move to a location with extended family nearby is always helpful. And file papers as early as possible and try to avoid an initial custody order with any move-away restrictions for the future and that the initial order provides you with sole physical custody.
Parents objecting to the other parent's move should try to insure that an initial order provides for joint physical custody and language stating that neither can change the children's residence beyond a limited geographical area. And of course, spend as much time as possible with the children and record the time and be involved with all aspects of their lives.
It is necessary to act to protect parental rights and the parent-child reltionship when either parent moves away, regardless of whether the child will be moving, and especially when the move impacts one parent's time spent with the child. Due to the relocation, the co-parenting plan will need to be modified so the parent-child relationship can be maintained for both parents and the child.
A litigated move-away case requires the assistance of experienced family law attorney in your area, so if you are involved in a parental move-away, consult one today.
But rather than litigating the issue, consider working with Collaborative attorneys or a mediator and a Collaborative Child Specialist and possibly Divorce Coaches to help you and your spouse resolve the issue in a child-centered and family-centered way that will honor the needs and interests of all involved.
For more information, visit us at www.lornajaynes.com