| 1976 |
Marriage of Ciganovich (1976) 61
Cal.App.3d 289
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If the purpose of the move is to frustrate or deny visitation, then the move is not in the child's best interest.
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| 1979 |
Marriage of Carney
(1979) 24 Cal.3d 725
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The court first determines whether there has been a change of circumstances, then whether a change of custody is necessary or desirable for the child's best interest.
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| 1986 |
Burchard v. Garay
(1986) 42 Cal.3d 531 , 229 Cal.Rptr. 800; 724 P.2d 486
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If the custody arrangement is the result of a prior court order, it is presumed the existing order is in the child's best interest.
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| 1986 |
Marriage of Rosson
(1986) 178 Cal.App.3d 1094 , 224 Cal.Rptr. 250
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The right to frequent and continuing contact with a child by the parent is an element in determining custody and visitation consistent with the child's best interest.
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| 1990 |
In re Marriage of Fingert
(1990) 221 Cal.App.3d 1575, 271 Cal.Rptr. 389
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A parent had been ordered to move to another county as a condition of continued custody of a child.
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| 1991 |
Marriage of Carlson
(1991) 229 Cal.App.3d 1330 , 280 Cal.Rptr. 840
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The loss of the practical ability to visit with the child is an important and relevant factor in determining whether a move is in the child's best interest.
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| 1992 |
Marriage of McGinnis
(1992) 7 Cal.App.4th 473, 479
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The non-custodial parent's (NCP's) ability to exercise visitation is an important, but not the only, factor in determining the child's best interest.
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| 1993 |
In re Marriage of Roe
(1993) 18 Cal.App.4th 1483 , 23 Cal.Rptr.2d 295
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The custodial parent seeking to relocate with a minor child must establish that move is "necessary" and in child's "best interest".
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| 1994 |
Marriage of Battenburg
(1994) 28 Cal.App.4th 1338, 1345
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Where there is pre-existing and successful shared parenting arrangement, the burden of proof is on the moving party to show that the move is necessary, expedient, and imperative.
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| 1994 |
In re Marriage of Selzer
(1994) (supra) , 29 Cal. App. 4th 637
|
The Court of Appeal affirmed the trial court's determination that the custodial parent's decision to move from Ukiah to Santa Rosa--a one-hour commuting distance-- did not require a change in physical custody
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| 1996 |
Marriage of Burgess
(1996) 13 Cal.4th 25, 51 Cal.Rptr.2d 444, 913 P.2d 473
|
After a joint custody determination based on the child's best interest, the moving parent need not demonstrate that the move is necessary as a condition of maintaining custody. However, when parents have joint physical custody, the trial court must determine de novo what arrangement for primary custody is in the child's best interest, qualified as "footnote 12" for a different analysis.
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| 1996 |
Brody v. Kroll
(1996) 45 CA4th 1732, 53 CR2d 280
|
When courts determined that the unmarried parents were sharing joint physical custody of a young child and mother wanted to move to Connecticut for a job opportunity, District Court of appeal held that the burden of proof fell on the mother to prove the move was in the child's best interest [first case to apply principles set forth by Burgess].
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| 1996 |
Cassady v. Signorelli
(1996) 49 Cal.App.4th 55, 56 Cal.Rptr.2d 545
|
A move-away request can be denied if it serves to frustrate the non-custodial parent's (NCP's) right to joint custody and visitation. In the instant case, mother told the court that when she got to Florida, she intended to work as a "parapsychologist". Trial court denied the mother's request, finding that the mother's real reason to move was to frustrate the father's ability to see the child.
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| 1997 |
In Marriage of Whealon
(1997) 53 CA4th 132, 61 CR2d 559
|
The non-custodial parent (NCP) did not demonstrate a change of circumstance necessary for a change of custody. The amount of time the NCP has with the child has emerged as the pivotal issue in determining who has the legal burden before the court. In the instant case, the father had the child one night a week, alternating weekends and holidays. Court granted mother's request to move to New York where she had a job waiting for her. The court observed that California Family Code Section 7501, enacted in 1993, 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.
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| 1997 |
Ruisi v. Thieriot
(1997) 53 Cal.App.4th 1197, 62 Cal.Rptr.2d 766
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The court 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.
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| 1998 |
In re Marriage of Condon
(1998) 62 Cal.App.4th 533, 73 Cal.Rptr.2d 33
|
When moving to a foreign country, the moving parent must demonstrate that the de facto termination of visitation (caused by the large geographical distance) would be in the child's best interest. Further, in granting such a move, the court can require the custodial parent to concede to the jurisdiction of California, post a security bond and order forfeiture of support payments in the even of a violation of the custody order.
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| 1998 |
In re Marriage of Biallas
(1998) 65 Cal.App.4th 755, 76 Cal.Rptr.2d 717
|
It clarified that Burgess applies to stipulated custody arrangements or orders. Also showed that actual timeshare is more important than the existing decree where the two are different.
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| 1998 |
In re Marriage of Edlund and Hales
(1998) 66 Cal.App.4th 1454, 78 Cal.Rptr.2d 671
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The court first determines if a move is based on sound reason; then the burden of proof falls on the non-custodial parent (NCP) to demonstrate that the move is not in the child's best interest.
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| 2001 |
In re Marriage of Williams
(2001) 88 Cal. App.4th 808 (2nd Dist. 2001)
|
In this family law move-away case the mother had been a full-time homemaker of four children until she and her husband decided to separate, when she returned to work. When he moved out of the house a few months later, they shared a nanny and alternated custody on a weekly basis for approximately half a year until the custody order was entered. She was awarded custody of two children, who accompanied her to a new marriage in Utah, and custody of the other two children was awarded to their father. The Court of Appeal set the decision aside and returned for consideration of the children's best interests; the trial court had not considered what effect divided custody would have on them.
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| 2001 |
In re Marriage of Bryant
(2001) 91 Cal. App. 4th 789
|
In an initial custody determination, the Superior Court in the County of Santa Barbara, California, awarded joint legal custody with primary physical custody to the mother (respondent) who intended to move with the children to New Mexico and awarded liberal visitation to appellant father. The father appealed. The trial court did not err in failing to evaluate the reasons for the move, and it satisfied the policy under Cal. Fam. Code § 3020 of assuring frequent and continuing contact by awarding liberal visitation. Having found that the mother was not acting in bad faith and that it was in the best interests of the children for custody to be with her, the trial court was bound to rule as it did.
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| 2002 |
In re Marriage of Lasich
(2002) 99 Cal. App. 4th 702
|
In an international move-away child custody case, the Superior Court of Sacramento County, California, granted respondent mother's request to move with the parties' minor children from Sacramento County to Barcelona, Spain. Appellant father sought review of the order. Because the mother was the primary physical custodian, the presumption of Cal. Fam. Code § 7501 applied. Thus, the mother was entitled to change the children's residence. The father failed to show relocation would result in detriment to the children.
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| 2002 |
In re Marriage of Richardson
(2002) 102 Cal. App. 4th 941
|
Now, parents who have less than the equal timeshare that will trigger Burgess footnote 12 and a de novo review have another way to gain that review in a move-away case. Of course, gaining a de novo review is not an automatic guarantee of being able to prevent a move. Before this, the soon-to-be-left-behind parent who lacked the requisite timeshare wasn't able to do much unless he or she could prove that the moving parent had an improper motive or a frivolous purpose for the move. Thanks to Richardson, that parent can seek a full custody evaluation, bring in expert testimony regarding the effect of the move on the child, and present evidence to demonstrate the full nature of his or her relationship with the child. All of that is good news for the non-moving parent. But this case isn't such good news for the moving parent.
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| 2003 |
In re Marriage of Campos
(2003) 108 Cal. App. 4th 839
|
Second District holds that trial court erred by limiting focus in move-away case to lack of bad-faith motive and by refusing to hold evidentiary hearing to consider detriment to children. This case makes a very important point regarding move-away cases: Lack of a bad-faith motive doesn't automatically mean a move is OK, no matter how much it may have seemed like that was the law from reading recent cases.
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| 2003 |
LaMusga v. LaMusga
(2003) (unpublished; review granted August 28, 2002; Pending in California Supreme)
|
In August 2002, the California Supreme Court voted unanimously to revisit the move-away issue by hearing the LaMusga case, in which a Contra Costa County custodial mother sought to move to Arizona with her two young boys and her new husband. The case has not yet been argued, but it will deal with the First District's reversal of an order that granted primary physical custody to Dad if Mom moved to Ohio, and its remand for the trial court to consider Mom's presumptive right to move and determine whether a custodial change was essential for the children's welfare. In the appellate court's view, the trial court impermissibly focused on the disruption in the father-child relationship from the move, while ignoring the disruption to the mother-child relationship. Dad's petition for review asked the Supremes to review and clarify their Burgess opinion with an eye toward reemphasizing the welfare of the child as a factor in move-away decisions, contending that this aspect has been forgotten while emphasis has been placed on the bad-faith or good-faith motives for a move. LaMusga v. LaMusga is heavily being watched, as this case has the potential for reshaping how move-away cases will be analyzed.
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| 2004 |
In re Marriage of LaMusga
(2004) (No. S107355; California Supreme Court, April 29, 2004)
|
The likely impact of a proposed move on the noncustodial parent's relationship with the children is a relevant factor in determining whether the custodial parent's move would cause detriment to the children, and may be sufficient to justify a change in custody.
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| 2006 |
In re Marriage of Brown and Yana
(2006) (No. S131030; California Supreme Court, February 2, 2006)
|
The California Supreme Court holds that a parent who has sole legal and physical custody does not have the absolute right to move away, but the noncustodial parent is entitled to an evidentiary hearing only after unsuccessful mediation and showing of the move's detrimental effect on the child. The Supreme Court also emphasized that the trial court has wide discretion to grant or deny a hearing to the noncustodial parent, even in the face of a sole-custody order, similar to a trial courts broad discretion to come up with a custody plan that reflects the overall best interests of the children. In move-away cases, such as this one, the "sole-custody" label can still be a powerful blockade to the noncustodial parent's efforts to change custody. A noncustodial parent who wishes to modify custody against a sole-custody order must make a showing of specific detriment to the child, as opposed to generalities, making the burden of proof for a noncustodial parent who wants a custody modification against a sole-custody order extremely high. In re Marriage of Brown and Yana (2006), the father, Anthony, failed to present legally sufficient evidence that the move would be detrimental to his son, Cameron. Although Anthony was given every opportunity to provide specific evidence as to why the move would be detrimental to his son, he provided generalities, as opposed to specifics, and the Supremes agreed with the trial court's denial of an evidentiary hearing and held that the Second District erred by concluding that the lower court should have granted Anthony an evidentiary hearing.
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| 2006 |
In re Marriage of Seagondollar
(2006) (No. G035270; Court of Appeal of the State of California, May 25, 2006)
|
The California Court of Appeals places emphasis on the importance of due process in hearing move away petitions. The court of appeals criticized the trial court's failure to give the father, Timothy, a meaningful opportunity to be heard on the change in custody and relocation decision stating, "Virtually from start to finish, the trial court handling this matter failed to follow or evenly apply the rules and procedures governing family law matters and, by failing to do so, denied Timothy the opportunity to be meaningfully heard. The rules of procedure for reaching family law decisions--contained in the Family Code, the Code of Civil Procedure, the California Rules of Court, and local court rules--are not mere suggestions. The rules of procedure are commands which ensure fairness by their enforcement." {Slip Opn. Page 3}
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