Just last week the Supreme Court of California issued a long-awaited opinion in Marriage of LaMusga, (S107355, April 29, 2004), which changes the state of the law concerning a divorced parent’s right to relocate with the minor children.

In 1996 the California Supreme Court decided In Re Marriage of Burgess, 13 Cal. 4^th 25  which set forth the presumption that a custodial parent could move away with a child absent a showing of prejudice to a child’s rights. This was a dramatic shift in the law as it had existed prior to Burgess  and one which was detrimental to children in that it greatly increased a parent’s ability to relocate, taking a child away from the geographical area where the remaining parent resided.

Prior to Burgess the parent remaining behind could restrain the move if the parent proposing to move could not show that the move was necessary for such things as  obtaining employment or providing for the child’s basic needs.  Burgess abolished these long-standing requirements and held that separated or divorced parents seeking to relocate with children to an area distant from the other parent had the “presumptive right” to do just that, if that parent had the majority of the timesharing allocation.  Although Burgess involved a move that would place 40 miles of distance between the father and children, the principles espoused in Burgess had long reaching effects in other custody cases where parents relocated to another state, or even to another country.  To prevent a move such as this, the parent left behind had to show significant detriment to the child, and an interruption in the relationship with the parent who had the smaller amount of time was not, in and of itself, enough to restrain a move.

The impact of Burgess was dramatic.  Trial judges began to allow parents to move where there was no compelling reason to do so, and various cases went to our courts of appeal, which affirmed the trial court’s rulings on the belief that the custodial parent had a right to relocate. One such case, Marriage of Lasich 99 Cal.App. 4^th 102 was discussed in an early edition of Family Law Update.  In that case, mother was permitted to move with both children from Sacramento to Barcelona, Spain.  In Marriage of Bryant, 91 Cal. App. 4^th 789, mother was permitted to take the children from Santa Barbara to New Mexico with no compelling reason for the move other than she wanted “moral support” from her family.  She admitted to the court that she had sufficient resources from a trust fund to support herself and the children.  In general, it appeared that the right of the parent to choose to move trumped the long standing “best interests” standard”. In other words, if a parent had primary physical custody, he or she could move regardless of what was best for the children.

The La Musga case was pending in our Supreme Court for two years during which time various individuals and organizations submitted Amicus (friend of the court) briefs attempting to advocate their positions.  While one camp contended that permitting moves such as this was harmful to children in general, another advocated that restricting such moves would result in economic hardship to mothers who would be unable to relocate to areas of the country with lower costs of living or different economic opportunities. 

Fortunately, the La Musga decision attempts to protect the rights and interests of children by making a move away from one parent more difficult.  The often touted “best interest of the children” standard does apply and in determining whether the best interests of the child will be protected, the Supreme Court instructs our courts to consider several factors, including the children’s interest in “stability and continuity in the existing custody arrangement”, the distance of the move and ages of the children, the relationship with both parents, and the ability to continue to communicate and cooperate, and the ability of parents to put the children’s interests ahead of their own. 

For more on this topic, see a copy of Fred’s Daily Journal column from April 26, 2004, which is enclosed in this edition of Family Law Update.
 

We’d like to introduce you to our newest attorney, Bret Hunter.  Bret has been practicing law since 1995, and is not only admitted to practice law in California, but is also licensed in both Georgia and Texas.  When he is not busy handling family law cases (which we admit doesn’t give him a lot of free time), he spends his time with his dogs, or pursuing his passion for black and white photography.  Be sure to say hello to Bret the next time you are in our office.