Relocation Redux

Since In re Marriage of Burgess (1996) 13 Cal.4th 25, was decided five years ago, the custodial parent’s right to relocate with the parties’ children has been augmented by a series of appellate rulings. However, none of these cases has identified that right at such an early stage of the proceedings as In re Marriage of Bryant (8/15/01) 2001 Daily Journal D.A.R. 8733, nor has any case so tilted the burden of proof in favor of the parent with whom the children have been residing.

Bryant is the only “move-away” case to date in which the intended move was announced and litigated at the inception of a dissolution, when there was no custody order whatsoever. The procedural posture of the case leaves no doubt that the standard which should have been applied to this initial permanent custody determination was the best interests of the children.

However, both the trial court and the appellate court seem to have elevated the right of the custodial parent to relocate above the best interest of the children. In this short decision, the court of appeal also at times appears to have used a different, harsher standard, requiring the noncustodial parent to show detriment. The court also confused the detriment requirement with its exception where the moving parent is motivated by a desire the frustrate the other parent’s relationship with the children.

During the parties’ marriage, which produced two children, the father worked while the mother stayed at home as the primary caregiver for the children. This arrangement continued after father moved from the family home in September 1998. For the next year and a half, the parties attempted reconciliation, which ultimately failed in February 2000. For a large part of that year and a half, mother refused to “allow” the father to have overnight visitation, citing various concerns and fears. The children were approximately five and eight years old, respectively, at that time.

When it became apparent that there would be no reconciliation, father filed for dissolution of marriage. Mother then requested custody of the children and stated her intention to move to New Mexico with them, in order to be with her family and the emotional support that they would provide. She had sufficient income from a trust fund, and was not relocating for financial reasons.

The trial court ordered a child custody evaluation. The evaluator’s reports were admitted into evidence. The evaluator recognized that the mother was the primary parent and had a greater level of involvement in the children’s lives than the father. She also stated that a change of custody to the father would be detrimental to the children.

However, on cross-examination, the evaluator testified that it would be best if the children and their mother stayed in Santa Barbara.

The parties’ marriage counselor testified that the best situation for the children would be for both parents to live in Santa Barbara, but that if the mother moved to New Mexico, it would be in the children’s best interest for father to be awarded primary custody and for the children to remain in Santa Barbara.

The trial court reluctantly granted the mother permission to relocate with the children. The trial court commented that the best interests of the children would be to remain in Santa Barbara with the mother, and reasoned that it could accomplish this arrangement through coercion if it conditionally granted physical custody to the father if the mother were to move away. However, the trial court believed it was barred from such a ruling by the Burgess directive that neither parent should be confronted with “Solomonic choices” over custody of minor children (i.e., be forced to choose between custody of the children and the desire to relocate). 13 Cal.4th at 36 n.7.

One of father’s contentions on appeal was that, among other things, the trial court’s ruling violated just that portion of Burgess; the order forced him to make the “Solomonic choice” between his present living and work arrangements and his family. The appellate panel disagreed, stating that the trial court had ordered “liberal” visitation rights, which father had the economic ability to exercise, and that therefore his choices were hardly “Solomonic.”

Father’s primary contention of appeal was that the trial court failed to properly evaluate the mother’s reasons for relocation. In rejecting his argument, the appellate court looked to Family Code ¤ 7501, which 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 statute was also one of the bases of the Supreme Court’s opinion in Burgess.

However, the Bryant court did not analyze or apply Family Code ¤ 7501 to the facts presented. Here, the evaluator testified that the move would indeed prejudice the rights of the children, that it was not the best plan for the children, and that it would be best if the children and their mother remained in Santa Barbara.

The appellate court apparently proceeded on the assumption that the mother was moving, since it stated that the policy of assuring frequent and continuing contact must be viewed in light of the policy to allow the custodial parent the freedom to move; that this policy can be found in Family Code ¤ 7501; and that although the move may have an adverse effect on the frequency of contact with the non-custodial parent, “what is determinative is the best interest of the children, given that one parent is moving and the other is not.” 2001 Daily Journal D.A.R. at 8734 (emphasis added).

In applying Family Code ¤ 7501, the appellate court disregarded the words of the Burgess court: “We do not suggest … that a parent has the ‘right’ under Family Code section 7501 to remove a child if such removal would derogate the child’s ‘best interest.’” 13 Cal.4th at 35 n.4. As mentioned, the trial court apparently believed that the move was not in the children’s best interest.

The appellate court also limited the factors which would preclude a relocation, stating: “But a custodial parent has a statutory right to change the residence of the child, subject to the power of the court to restrain a move that would prejudice the rights or welfare of the child. … The only exception is where the reason for the move is to frustrate the non-custodial parent’s relationship with the child.” 2001 Daily Journal D.A.R. at 8734. This statement is a misinterpretation of Burgess.

First, the Burgess court held that while the custodial parent is not required to show necessity for the move, the decision to move must be “reasonable.” 13 Cal.4th at 36. Here, given that mother announced her intention to move promptly after father filed for dissolution, that there was no economic need or motivation, and mother’s conduct during the separation, it would have been helpful if the court had addressed the reasonableness of mother’s decision, or at least mentioned the issue.

Second, and more importantly, the court seems to have believed that the only basis on which a move may be prohibited is bad faith on the part of the “custodial” parent: “Here the trial court found that Laurel was not acting in bad faith. No further inquiry was necessary or appropriate.” 2001 Daily Journal D.A.R. at 8734. This inappropriately narrows the inquiry to the parent’s concerns and lack of “bad” motivations, and directs same away from the effect on the children. As noted in the dissent, the evidence suggested that the move would be detrimental to the children.

Finally, father argued that the trial court’s interpretation of Burgess penalized him by using the arrangement in effect during the marriage against him to restrict the frequency and continuity of his post-separation contact with the children. Significantly, there was no prior custody order; thus, the arrangement between the parents was just that — not an award of custody to one parent or the other. Yet the opinion makes no mention of the procedural status of the parties.

In Burgess, supra, the Supreme Court addressed a relocation request in the context of an initial permanent custody decree where a pendente lite custody order was already in place. The court made it clear that its decision applied equally to post-judgment modification requests, but made no mention of what standard or analysis should be applied where the request came at the inception of the dissolution action. 13 Cal.4th at 38.

Neither Burgess nor any relocation case which follows Burgess (until this Bryant opinion) has extended the requirement of a detriment showing to the facts presented here, before any custody order has been made.

As stated, this court, as well as the Burgess court, relied on Family Code ¤ 7501, which expressly refers to the right of “a parent entitled to the custody of a child” to change residence. Here, since there was no custody order, both parents were equally entitled to the custody of their children. In essence, these parties were procedurally in the position contemplated by “footnote 12″ of Burgess (13 Cal.4th at 40 n.12) — they were sharing physical custody, although not under an existing order.

Thus, this court should have focused exclusively on the best interests of the children. Detriment should not have been the standard, nor should the court have narrowed the reasons to block the move to “bad faith” on the part of the mother.

Since the majority stated plainly that the trial court’s order left the children with the “second best solution,” a best interests analysis would have resulted in a reversal. 2001 Daily Journal D.A.R. at 8734.

This was cogently pointed out by the dissent: “when the trial court expressly indicated what the optimum scenario would be, it should have stopped and entered that order. By definition, and in the words of the trial court, it selected what was ‘next best’” 2001 Daily Journal D.A.R. at 8735.

Burgess was decided based primarily on the importance of stability of custodial and emotional ties to children. The importance of stability to a child cannot be negated. But the world of a child comprises many factors. Here, as pointed out by the dissent, the children had had a nurturing and successful childhood in Santa Barbara. The move itself would disrupt the children’s stability. The parents had only just separated finally; during the preceding year and a half, mother had by and large controlled father’s visitation. For about half that period, the children believed their family was still intact.

Thus, to the extent that there was stability in the children’s lives, the source of that stability was their family environment as it had previously been. Mother’s move would further destabilize the children. This is a distinctively different scenario than that presented when a parent seeks to relocate after a structured custody and visitation order is in effect, whether that order is pendente lite or final.

The facts of this case gave the appeals court an opportunity to distinguish a move-away request made at the beginning of a dissolution action from the procedural posture of Burgess and the other relocation cases. If and when a similar case is addressed on appeal, it is hoped that appellate counsel and the court are attuned to the issues unique to early determination of move-away cases.

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