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Recent Changes in Family Law Move-Away Cases: (1) Navigating Between the "Best Interests of the Child" Rule and the "Changed Circumstances" Rule and (2) Courts Required to Assume that Parent Will Absolutely Move

By Frieda Gordon, Esq. and Erin Louria Zivic, Esq.

Move-away cases are often the most difficult cases that Family Law judges face. Granting a move-away request generally translates to limited visitation between the child(ren) and noncustodial parent. A "move-away" case is one in which the custodial parent or a parent enjoying a 50-50 custody time share seeks the court's permission for the children to move away with him or her. Sometimes parents get confused regarding the issue before the court. The Court does not decide the issue of whether the parent can move away, it only decides whether it is in the child's best interests to relocate with the parent. These move away cases become complicated by varying legal presumptions, legal standards, and shifting burdens of proof. In addition to the complexities inherent in move-away cases, the laws are often changing. As a result, move-away cases can become quite difficult to navigate. A brief summary of the some of the recent changes in move-away cases, set forth here, may shed some light on the subject for a parent seeking or fighting a move-away request.

Three new move-away cases, involving a custodial and noncustodial parent, were decided as recently as a few months ago. They include the F.T. v. L.J. case, the Mark T. v. Jamie Z. case, and the Jacob A. v. C.H. case. In all three cases, the custodial parent sought the Court's permission for the child(ren) to relocate out of state with the custodial parent. In each case, the trial court found that a move-away would be detrimental to the child(ren)'s relationship with the noncustodial parent and was therefore not in the "best interests of the child." The Court, in all three cases, essentially stated that it was unclear that the custodial parent would still absolutely move if the children's relocation was denied. As a result, the Court declined the move-away request in all three cases based on the assumption that the custodial parent would not move if permission to move with the child(ren) was denied. On the appeal in each case, the Courts of Appeal noted that the trial courts properly utilized the "best interests of the child" standard since there were no final custody determinations; only temporary custody orders were in place. The Courts of Appeal clarified that although the trial courts used the proper standard, they misapplied the standard, i.e. that the trial courts were required to operate based on the understanding that the parent seeking relocation would absolutely move and that the Court must create a parenting plan based on that assumption.

When deciding a case based on the legal standard of "best interests of the child," some of the factors courts will consider include, the child's relationship with each parent, the parents' ability to provide for the child (including love, affection, food, shelter, clothing),
whether the child lives in a stable environment and for how long, the permanence of the custodial home, the moral fitness of the parents, the mental and physical health of each parent, the child's preference if appropriate, and each parent's willingness and ability to facilitate the child's relationship with the noncustodial parent, among other factors.

Prior to this trio of cases, the Court ruled on the move-away case, Niko v. Foreman, where the parents shared joint legal custody and had a 50-50 physical custody sharing arrangement. In that case, the mother requested a move-away order granting her permission to move out of state with the child. The trial court granted the mother's request, based on the best interests of the child. The father appealed, arguing that the trial court should have used the change of circumstances standard rather than the best interests of the child standard in making its decision. The changed circumstances rule essentially requires a "substantial change in circumstances" necessitating a modification of the current custody arrangement. The Court of Appeal in Niko agreed that the changed circumstances rule is used when a parent is seeking a change in custody, but found that the mother was not seeking a change in custody. Rather, both parents would continue to share joint legal and physical custody, but the physical custody arrangement would be modified. Since the parties shared joint legal and physical custody, the Court of Appeal stated that the proper standard was in fact the best interests of the child.

A few years ago, the California Supreme Court case of Marriage of LaMusga established the present standard for move-away requests when a custodial parent seeks to relocate with the children. In LaMusga, the mother had primary physical custody of the minor children. Subsequently, she sought to change the final custody order so she could move with the children to the Cleveland, Ohio area where the mother alleged she had family and where her new spouse had found more lucrative employment. The trial court found that, although the mother's motivations for the move were in good faith, the relocation would be detrimental to the children's already difficult relationship with their father, and would not promote "frequent and continuing contact" with him. (California promotes a public policy where children ought to have "frequent and continuing contact" with both parents.) Since the mother's requested move would make it difficult to maintain frequent and continuing contact with their father, the trial court ruled the move would not be in the children's best interest and denied the move-away request.

On appeal, the Court found that the trial court erred by failing to proceed from the presumption that the mother, as the custodial parent, had the right to change the residence of the children. The trial court also failed to consider the great need for stability and continuity in the existing custodial arrangement. The California Supreme Court held that "... just as a custodial parent does not have to establish that a planned move is 'necessary,' neither does the noncustodial parent have to establish that a change of custody is 'essential' to prevent detriment to the children from the planned move." Instead, in order for the court to reevaluate a final child custody order, the noncustodial parent must show that the proposed relocation of the children's residence would cause detriment to the children. The likely impact of the proposed move on the noncustodial parent's relationship with the children is one factor of many in determining whether the move would cause detriment to the children. If the noncustodial parent makes such an initial showing of detriment, the court must perform the difficult task of determining whether a change in custody is in the best interests of the children.

Given the complexities of move-away cases, oftentimes which are the most hotly contested issues encountered in family law, it is of the utmost importance to find competent as well as caring counsel to assist you. The attorneys at Cooper-Gordon LLP take pride in their approach to such difficult cases and the trust their clients have placed in them over the years to handle such important matters.