[MFish1000]

I was told yesterday that there was a new law that was just passed on move away cases involving child custody. Can anyone enlighten me on this? I am in CA, but this could have been a federal court ruling. The law stated something about Primary Custodian not having to go through court to move the child out of state.

Any info would be helpful!

Thanks!

[Fr_Chuck]

While of course I could have missed something, ( laws hidden in large bills passed) I could not find any resent ( like this week) rulings at either the surpreme court level or the California supreme court.

There was a case at the end of last year in California over the custody of the Children of Paul and Wendy Burguess. She appealed the lower courts decision to the California Supreme court.

Here is a summary of the ruling

The Court of Appeal reversed the decision of the Trial Court, stating that Wendy failed to show her move was necessary. Wendy appealed to the California Supreme Court, which reversed the decision of the Court of Appeal. The Supreme Court concluded that an initial custody determination is based upon the best interests of the children. A parent seeking to relocate does not have to establish that a move is necessary in order to have custody. Similarly, after a custody order is in place, the custodial parent seeking to relocate does not have to establish that the move is necessary, but instead has a right to change residence of the children subject to the power of the court to prevent a move that would prejudice the rights or welfare of a child.
The Burgess decision represents a significant change in the way moveaway cases are handled by trial courts. The decision makes it easier for the custodial parent to move away from the visiting parent.
Many questions remain unanswered about the application of this decision in the trial courts on a case-by-case basis.


So basically this case while Wendy won giving her the right to move without hainv to prove it was in the best interest, it did not address the need to go back to court and get permission to move. And it left each judge with no clear rule and was as stated still on a case by case basis.

There well could be a new case but I just could not find anything on fndlaw or my other legal search engines

[Fr_Chuck]

This is also the history as I can find it about the rights and custody laws in California.

Parents who share custody of their children face a difficult dilemma when one parent wants to move to a relatively distant location. Recent California cases indicate that in custody situations, if one parent is functionally the primary parent and the children have been living primarily with that parent, that parent is likely to be permitted by the courts to move and take the children along, even if he or she agreed earlier not to relocate.

California Family Code section 7501 provides: "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."

Although this appears to be straightforward, interpretation of this statute has not been. The right of a custodial parent to relocate with a minor child when doing so would adversely affect the non custodial parent's visitation has been the subject of many diverse and contradictory appellate decisions over the last decade. Many courts approved restrictions on the parent's right to relocate with the child and imposed burdens such as proving that move was, for example, "necessary" or "expedient, essential or imperative." Some devised compound tests to guide the trial courts in making the determination. Others, on the other hand, simply held that the custodial parent was presumptively entitled to move.

When there appears to be a shared custody or joint physical custody arrangement, where the child spends a significant amount of time with each parent, an exception can be raised, known as the "footnote 12" exception to Burgess (see Marriage of Burgess). In "footnote 12" of the Burgess decision the court held that where there is a shared custody relationship the court would have to make a new, or "de novo", determination regarding custody based upon the best interests of the child.

The following chronology of "move-away" case summaries are but examples of how the California courts have ruled on "move-away" cases in the past and are provided for informational and educational purposes only. The information provided should not be construed or substituted for legal advice. Each case must be analyzed on a case by case basis on it's own set of facts. For legal advice, you must consult an attorney in your jurisdiction.

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Chronology of Important "Move-Away" Cases in California

Year Case Findings
1976 Marriage of Ciganovich (1976) 61 Cal.App.3d 289 If the purpose of the move is to frustrate or deny visitation, then the move is not in the child’s best interest.
1979 Marriage of Carney (1979) 24 Cal.3d 725 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.
1986 Burchard v. Garay (1986) 42 Cal.3d 531 , 229 Cal.Rptr. 800; 724 P.2d 486 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.
1986 Marriage of Rosson (1986) 178 Cal.App.3d 1094 , 224 Cal.Rptr. 250 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.
1990 In re Marriage of Fingert (1990) 221 Cal.App.3d 1575, 271 Cal.Rptr. 389 A parent had been ordered to move to another county as a condition of continued custody of a child.
1991 Marriage of Carlson (1991) 229 Cal.App.3d 1330 , 280 Cal.Rptr. 840 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.
1992 Marriage of McGinnis (1992) 7 Cal.App.4th 473, 479 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.
1993 In re Marriage of Roe (1993) 18 Cal.App.4th 1483 , 23 Cal.Rptr.2d 295 The custodial parent seeking to relocate with a minor child must establish that move is "necessary" and in child's "best interest".
1994 Marriage of Battenburg (1994) 28 Cal.App.4th 1338, 1345 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.
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
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.
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].
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.
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.