|
For better or worse, Americans are divorcing and moving in greater numbers than ever. U.S. Government statistics tell us that 28% of all minor children live with one parent, and that, every year, more than 14,000,000 Americans relocated their residences to another county. So, it is not hard to understand why this issue keeps popping up in divorce courts throughout the united state. In California, this controversy has its origins in a line of appeals cases that stretches back more than fifty years to a 1942 case in which the father was trying to regain custody of the child from his ex-wife. In that decision, the appellate court said that an existing child custody order could be changed only if it is “essential or expedient for the welfare of the child that there be a change." In 1979, the California State Supreme Court stated that a child's custody could be changed only if the parent requesting the change could make a “persuasive showing of substantially changed circumstances affecting the child.” Over the last ten years, this rule has been used by courts to tell custodial parents that they could not move the children to other cities. In 1986, a Napa County working mother, who got a new job in San Francisco, was told that she could not take her 13 and 10 year old daughters with her. Six years later, another appellate court ruled that a father, who had physical custody of his three children three nights each week, had the right to demand a mental health evaluation of the parents and the children before the mother was permitted to move the children from Santa Barbara. Several other appellate cases echoed the stringent rule that the move-away parent could not pick up and leave with the kids, simply because she wanted to. And it was not enough that the custodial parent had a good reason for the move, such as a new job or the desire to live with a new spouse. In 1996, the California State Supreme Court's Burgess case effectively nullified all of these lower court rulings. In doing so, the court has made it much easier for move-away parents to follow though with their plans. In Burgess, the mother wanted to move with the couple's two children from their hometown of Tehachepi to Lancaster, which was 40 minutes away. After winning in the Superior Court and loosing in the District Court of Appeal, the wife was able to convince the California State Supreme Court that the trial judge made the right decision. The Court held that a custodial parent who is requesting to move does not have to prove anything more than it would be in the children's best interests. No longer does the moving parent have to show that there is some urgent need for the kids to get into a new environment or that there is a dire circumstance that justifies relocating to another city. To hold otherwise, the Court said, would require it to ignore the reality that people often relocate after they get divorced. Now, the only restriction on the custodial parent's right to move is the requirement that the move must not be based on a “bad” reason, such as to frustrate the non-custodial parent's time with the child. What is a divorcing parent to do? One of the lessons the Burgess case teaches is that a parent in one of these cases should do everything possible, short of violating the law, to maximize his or her time with the children. Burgess, which was limited to cases where the children have been living primarily with one parent, did not tell us what is to be done if the parents are actually sharing custody of their children. However, because the Court was so focused on the right of the custodial parent to decide where the children should live, it is logical to assume that the move-away parent in a shared custody arrangement will not be given an automatic green light. Unlike the typical child custody dispute, in which the parents fight over how much time they will each have the children, these cases have an unmistakable “all or nothing” quality to them. The move-away parent views the move as a doorway to her post-divorce future. The stay-behind parent, on the other hand, sees the move as a threat his parenthood. With so much at stake, there is a strong possibility that, instead of clarifying the controversy, the Burgess case will actually encourage parents to position themselves for future custody battles like the one in Long Beach. In the two years that have passed since Burgess was decided, the question of the move-away parent has been the topic of six California District Court of Appeal decisions. Brody v. Kroll (1996) 45 CA4th 1732, 53 CR2d 280, was the first case to apply the principles set forth in Burgess. In Brody the unmarried parents of a young child had been sharing her custody. In fact, the father was seeing the child 4 - 5 times per week. When the mother obtained a job opportunity in Connecticut, she requested permission to take the child with her. The District Court of appeal held that, where the parents are sharing a child's custody, the move-away parent has the legal burden to prove that the move is in the child's best interests. The court distinguished these facts with those in Burgess, where the mother had primary physical custody of the children. In that type of a situation, the Court held, it was the burden of the parent opposing the move to show that it would be bad for the child. Cassady v. Signorelli (1996) 49 CA4th 55, 56 CR2d 545, tells us that the custodial parent does not always win these cases, even after Burgess. In Cassady, the mother, who had primary physical custody of the child, requested the court's permission to move with the child to Florida. The mother told the court that, when she got to Florida, she intended to work as a "parapsychologist." The 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. The amount of time that the non-custodial parent has with the child has emerged as the pivotal issue in determining who has the legal burden before the court. In Marriage of Whealon (1997) 53 CA4th 132, 61 CR2d 559, the father had the child one night a week and on alternate weekends and holidays. In granting the mohter's request to move the child with her to New York, where she had a job waiting for her, the court observed that California Family Code Section 7501, which was 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.” Marriage of Condon (1998) 62 CA 4th 533, 73 CR 2d 33, the District Court of Appeal described the fact situation as one that “tests the very outer limits “ of the principles established in Burgess. Where the move contemplated by the mother in Burgess was only 40 miles, Mrs. Condon wanted to move to Australia. After lengthy battles, in California and Austrialian courts, the mother was permitted to move down under. The Court held that the Family court may allow relocation of parent and children to another country so long as and enforceable agreement is reached to protect other parent's rights to custody and visitation. The appellate court further concluded that, as a condition to granting such a move-away, 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 event of a violation of the custody order. Most recently, in Marriage of Biallas (1998) 65 Cal. App. 4th 755, 76 Cal. Rptr. 2d 717, the father saw the child every Thursday evening until Friday morning and every other weekend from Friday evening until Monday morning. When the mother remarried a man living in Nebraska, she requested a move-away order so that she could live with her new husband. The trial court, however, awarded custody of the child to the father. -- Glen L. Rabenn, Certified Family Law Specialist |