Cal. Prac. Guide Family L. Ch. 17-C California Practice Guide: Family Law Judge William P. Hogoboom (Ret.), Justice Donald B. King (Ret.), Contributing Authors: Judge Kenneth A. Black (Ret.), Judge Thomas Trent Lewis, Michael Asimow, Bruce E. Cooperman Chapter 17. Modification Of Orders And Judgments C. Child Custody And Visitation (2) [17:313] Move-away cases: By statute, a parent with sole physical custody of the children has the presumptive right to change the children’s residence, subject to the court’s power to restrain a removal that would “prejudice the rights or welfare” of the children. [Fam.C. § 7501(a); Marriage of Burgess, supra, 13 C4th at 32, 51 CR2d at 449; Marriage of LaMusga (2004) 32 C4th 1072, 1094, 12 CR3d 356, 372; but see also F.T. v. L.J. (2011) 194 CA4th 1, 19–20, 123 CR3d 120, 133–134—parent does not have presumptive right to relocate with children unless awarded custody by way of “final judicial custody determination” (¶ 7:321.6)] The California Supreme Court’s decision in Burgess, supra, interpreting and applying § 7501(a), has been legislatively affirmed and declared to be “the public policy and law of this state.” [Fam.C. § 7501(b)] But the custodial parent has no more than a presumptive right to relocate with the children, and this is true even if he or she has also been awarded sole legal custody. A sole physical and legal custody order does not terminate the other parent’s parental rights or due process interest in parenting; the noncustodial parent still has standing to oppose the relocation and to seek and obtain a custody modification based on a proper showing of detriment and changed circumstances. [Marriage of Brown & Yana (2006) 37 C4th 947, 957–959, 38 CR3d 610, 616–618] (a) [17:313.1] Custodial parent bears no burden to show “necessity” of move: Just as when a move-away contest arises in connection with an initial custody and visitation adjudication (¶ 7:561), a parent who has sole physical custody under an existing judicial custody order and who wishes in good faith to move with the children bears no burden of demonstrating that the move is “necessary.” [Marriage of Burgess, supra, 13 C4th at 37, 51 CR2d at 452; Marriage of LaMusga, supra, 32 C4th at 1088, 12 CR3d at 367] (b) [17:314] Changed circumstances rule applies: A noncustodial parent seeking to change the custody arrangement under an existing order on the basis of the custodial parent’s pending move-away, bears the burden of showing there has been a substantial change of circumstances rendering it “essential or expedient for the welfare of the children” that there be a custody change. [Marriage of Burgess, supra, 13 C4th at 38, 51 CR2d at 453 (emphasis added)] Compare—move-aways where no “final” custody determination exists: When there has yet been no “final” custody adjudication, a move-away contest is decided strictly under the child’s “best interest” analysis, considering all the relevant factors as on any initial custody adjudication. The changed circumstances rule and its associated burdens of proof do not apply. [Marriage of Burgess, supra, 13 C4th at 31–32, 51 CR2d at 449; see Ragghanti v. Reyes (2004) 123 CA4th 989, 996, 20 CR3d 522, 527; F.T. v. L.J., supra, 194 CA4th at 20, 123 CR3d at 134—best interests analysis appropriate where stipulated order was “without prejudice to either party”; and detailed discussion at ¶ 7:561.1 ff.] (c) [17:315] Threshold burden to show detriment: As a threshold burden, the noncustodial parent must demonstrate the proposed relocation will cause the children detriment, requiring a reevaluation of their custody. [Marriage of LaMusga, supra, 32 C4th at 1078, 12 CR3d at 359–360; Marriage of Brown & Yana, supra, 37 C4th at 959–960, 38 CR3d at 619; see Osgood v. Landon (2005) 127 CA4th 425, 434, 25 CR3d 379, 385—

noncustodial parent seeking modification based on custodial parent’s move-away bears same detriment burden even when underlying custody order was established by default] But once detriment from the proposed relocation is shown, the normal “best interest” analysis applies—i.e., whether changing custody is in the children’s best interest in light of all the relevant factors. [Marriage of LaMusga, supra, 32 C4th at 1098, 12 CR3d at 375; Marriage of Brown & Yana, supra, 37 C4th at 960, 38 CR3d at 619–620; see also F.T. v. L.J., supra, 194 CA4th at 23–24, 123 CR3d at 137–138—although detriment to child’s relationship with noncustodial parent is one factor to consider, error to ignore child’s need for continuity and stability in established custodial arrangements] 1) [17:315.1] Continued relationship with noncustodial parent as factor: The likely impact the move-away would have on the noncustodial parent’s relationship with the children is highly relevant in determining whether the relocation would cause the children detriment “and, when considered in light of all the relevant factors, may be sufficient to justify a change in custody.” [Marriage of LaMusga, supra, 32 C4th at 1078, 12 CR3d at 359–360 (emphasis added)] On the other hand, when one parent states an intention to relocate a substantial distance away, maintaining the status quo is no longer possible. In this event, courts must “navigate the delta between the ideal and the reality and consider what is in the child’s best interests under the circumstances presented.” [Jacob A. v. C.H. (2011) 196 CA4th 1591, 1601, 127 CR3d 611, 618–619 (joint custody case)—decision to maintain status quo and ignore mother’s stated intention to move to Washington was abuse of discretion] (d) [17:316] Broad trial court discretion; no “bright line” rules: Move-away contests cannot be decided by any “bright line” rules. So long as the trial court adhered to the proper legal standards (applying the Fam.C. § 7501(a) presumption and the changed circumstances burden of proof), appellate courts must defer to the trial court’s exercise of its broad discretion in resolving modification requests associated with a proposed relocation. [See Marriage of LaMusga, supra, 32 C4th at 1089–1092, 12 CR3d at 368–371 (collecting cases); Marriage of Brown & Yana, supra, 37 C4th at 961, 38 CR3d at 620] (e) [17:317] Exception—de novo determination in joint physical custody cases: When a contemplated relocation threatens to upset an actual (de jure) joint physical custody arrangement, the parents essentially come to court on a “level playing field.” The trial court must approach the custody adjudication de novo, determining anew what primary custody arrangement is in the children’s best interest—i.e., the modification decision is not subject to the changed circumstances rule. [Fam.C. § 3087; Marriage of Burgess, supra, 13 C4th at 40, 51 CR2d at 454, fn. 12; Marriage of LaMusga, supra, 32 C4th at 1089, 12 CR3d at 368, fn. 3; see also Mark T. v. Jamie Z. (2011) 194 CA4th 1115, 1124, 124 CR3d 200, 207—when determining de novo what physical custody arrangement is in child’s best interest, court must assume joint custodial parent making relocation request will move regardless of court’s decision] However, this so-called “Burgess footnote 12 exception” is triggered only in cases involving substantive—i.e., actual—joint physical custody as the pre-move-away status quo. Although the arrangement may have been labeled “joint physical custody” by the court, if the contestant parent in actuality has only “nominal” physical custody and the vast majority of the child’s time is spent with the move-away parent, the normal Burgess burden falls upon the contestant noncustodial parent. [Marriage of Lasich (2002) 99 CA4th 702, 714–715, 121 CR2d 356, 365 (disapproved on other grounds in Marriage of LaMusga, supra, 32 C4th at 1097, 12 CR3d at 374); Marriage of Biallas (1998) 65 CA4th 755, 760, 76 CR2d 717, 720—“liberal visitation rights” not enough to displace changed circumstances rule and respective burdens pursuant thereto; see further discussion at ¶ 7:573 ff.] [17:318–319] Reserved. Cross-refer: Move-away case law—in the context of both initial custody adjudications and custody modification litigation—has evolved over several years and is extensive. The subject is treated in detail in Ch. 7; see ¶ 7:560 ff.

CPG-Family Law 17:313-317 MODIFICATION-MOVE AWAYS ...

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