By: Alphonse F. Provinziano, Esq.

 

Move away cases involving child custody matters are the most challenging cases faced by family law attorneys and judges. The amount of preparation required by the parents prior to the case being presented in court can be overwhelming. Thorough consideration of every angle is paramount to the outcome of the case, as well as the expedience with which the case is processed. Here, we provide an outline of factors to consider when preparing a move away case for court.

Legal Standard – La Musga Factors (2004) 12 Cal.Rptr.3d 356

The move away case of La Musga (pronounced LA-moo-shay) is a precedent-setting case involving two parents who could not amicably communicate to reach an agreement regarding custody. In that case, the mother was shown to have discouraged the relationship between her ex-husband and their children. She spoke disparagingly about the father to the children, and prevented the father from having reasonable access to them. When the courts stepped in and mandated visitation with the father, the mother unwillingly relented.

As a result of her resistance, when the mother, who was previously granted primary custody, requested permission from the courts to move with the children, the courts cited her past behavior, denying her the right to move with them. The courts stated that, if the mother moved, then custody of the children would be transferred to the father.

While it is not the court’s position to punish a parent for his or her past behavior, in all cases the courts are required to rule in favor of the child’s best interests. So, preparation for a move away case must include a self-review of the parent’s behavior relative to allowing the other parent access to the child. It is critical to follow previously established court orders regarding a visitation schedule.

Formal agreement or not, it is in both parent’s best interests to support the relationship between the child and the other parent. To show that you are doing your part to promote their relationship, keep a detailed log of all interactions between the child and the other parent, including telephone calls, text messages, emails, Skype calls, and face-to-face visits.

Regardless of whether a formal arrangement is in place, log the time of each incident, as well as the duration and type of contact. Simply saying that you followed court orders, or otherwise allowed access, isn’t enough. The detailed documentation can be presented in court to establish a history of cooperation which can then be used to assert that you will continue to support the relationship even after the move.

Courts consider many factors in move away cases, not just parental behavior. As a result of the La Musga case, specific guidelines were developed to determine what is in the best interest of the child relative to allowing a child to move away with one parent. Those guidelines include, but are not limited to, the following:

  • The reason for the move: In California, the move away parent is not required to justify the move. However, even a good faith move can be stymied by the move away parent’s past behavior toward the non-custodial parent, as illustrated by La .
  • The child’s age: The younger the child, the more detrimental a relocation may be for the child. Young children cannot effectively grasp the concepts of time and distance.
  • The distance of the move: Does the time and travel expense required pose a prohibitive hardship on the stay behind parent? Will that negatively impact the parent’s ability to spend time with the child?
  • Current custody arrangements: This consideration includes legal arrangements, as well as the real-world schedule.
  • The child’s desires: If the child is mature enough to express him or herself, the court may ask his or her opinion.
  • The parent’s relationship with each other: This includes the current and historical level of cooperation and willingness to co-parent and allow access to the child.
  • The child’s relationship with both parents: Is the child more attached to one parent than the other?
  • Employment history and potential to care for the child: Does the move away parent have the ability to care for the child emotionally, mentally, physically, and financially?
  • History of domestic violence and/or child abuse: Behavior of both parents is considered.
  • Documented drug or alcohol abuse: Behavior of both parents is considered.

While the list is extensive, it is not all inclusive, and it does have its limitations. For example, the best interest standard does not consider a parent’s sexual orientation, immigration status, or religious beliefs deemed unharmful to the child. Additionally, a parent’s physical disability is not sufficient on its own to deny a parent custody in a move away case. In summary, the health, safety and welfare of the child is paramount to the courts in determining the outcome of a move away case, and the court has broad discretion in making that assessment.

In-State Move vs. Out-of-State Move

The distance of the move is important for logistical and financial reasons, as stated above. A parent requesting an in-state move may have an easier time convincing the court that the distance does not pose undue hardship than if an out-of-state move is requested.

Factors, such as travel expenses (airline, hotel) are considered. Additionally, whether the child will travel to stay with the parent, or the parent will travel to visit the child is also a consideration. In these cases, the age of the child who will travel is considered as well.

For example, a move in state that requires several hours of driving for weekend visitation, or a short flight from Southern California to Northern California, may be more acceptable to a reviewing court than a move across country where visitation may be limited to several times per year.

Out-of-State Move

If an out-of-state move is planned, additional factors must be considered by the move away parent when preparing to address the court. The concerns about cost of travel and who will pay for it must be addressed. Also, who will travel, how and when, as well as how the parents will navigate any necessary changes to the travel schedule due to weather, illness, or other unforeseen hurdles. Similar considerations are addressed with in-state moves as well.

International Move Away

In the case of an international move away request, additional special factors are considered by the court when determining whether or not to grant such a request. In addition to the general guidelines outlined in the La Musga case, the following are also considered.

  • Cultural differences and practices in the move away country that go against the child’s basic human rights.
  • Domestic and governmental conditions in the move away country (for example – war or civil unrest).
  • Financial considerations if the distance is fiscally prohibitive.
  • Whether the move away country is a member of the Hague Convention in good standing – which is a jurisdictional issue that may render California court orders unenforceable.

To the last point, countries that participate in the Hague Convention may be easier to work with relative to child custody arrangements. The Hague Convention, which deals with issues of child abduction under most circumstances, including move away cases, requires participating countries to set up a central authority to serve as the site for points of contact and sources of information in the country. For example, the Department of State is the United States’ central authority for facilitation of components of the Hague Convention (Cases started in the United States can be presented in either state or federal court, with access cases being presented exclusively in state court (source).

The Hague Convention applies to children until they reach the age of 16, and a custody order is not required to seek assistance under the Hague Convention. Additionally, expedited proceedings are expected, and a court may request an explanation for delays extending beyond six weeks. However, no specific timeframe is guaranteed for holding the hearing (source).

Though the Hague Convention may assist in cases of international child abduction, it does not necessarily include remedies for returning a child for visitation. However, a court in the move away country that is part of the Hague Convention may decide to intervene in such cases. Additionally, exceptions exist regarding return orders, and the court uses its discretion when such an exception is established (source).

It is reasonable to expect that California courts will be reluctant to approve a move away request to a parent who wishes to relocate children to countries that do not participate in the Hague Convention, absent an agreement of the parties.  The courts believe that non-participating countries will not honor California court orders and, therefore, children will not be returned to the United States as mandated.

An international move away request requires additional time and considerations to effectively facilitate. Certain additional considerations may be required before a move away request is granted. Conditions may include posting of bond, registration of the California court order, and consent to jurisdiction remaining in California. Additionally, international relocation requests are particularly complex, and move away parents should consider hiring an attorney focusing on international move aways to handle the

The Timeline for a Move Away

When possible, file move away request papers with the court as soon as possible before the scheduled move. In addition to court back log, you may also have to contend with delay in the process due to  the opposing parent’s objections. Filing a move away request well in advance affords you the time needed to prepare for the opposing parent’s resistance to the move, and the legal process to move forward to completion.

The court needs enough time to complete the standard custody evaluation, depositions, and trial, as part of the substantive due process. The stay behind parent must receive adequate notice of the relocation request, as well as an opportunity for meaningful mediation, as the court does not have discretion to waive mediation.

If the move away parent already has sole legal and physical custody, the court may have discretion to deny a request for an evidentiary hearing from the stay behind parent, according to Brown v. Yana (2006)37 Cal.4th 947; however, this case may be limited to its very unique facts and the court may be reluctant to deny an evidentiary hearing post-Elkins.

Both parents are protected by the law in that they are afforded time to collect and present evidence in the case of a relocation request. Consider this when determining how far in advance to file a move away request.

In California, it is reasonable to expect that a move away case may take six months to one year, especially if there is a child psychologist appointed to conduct an evaluation under Evidence Code section 730.

No Temporary Move Away

In the case of Seagondollar (2006) 139 Cal.App.4 1116, the court determined that it is not in the children’s best interests to grant a move away request on a temporary basis before the opposing parent has an opportunity to respond. In this case, a previous court decision was overturned because it was determined to have been granted in haste, and did not allow the father adequate time to present his case relative to his request not to allow the children to move. As such, move away requests are generally denied until due process of an evidentiary hearing has been satisfied because uprooting the child temporarily is viewed as effectively a permanent move-away, since a court would be reluctant to move a child back once they’ve already moved.

Is an Evidentiary Hearing Required?

Relative to evidentiary hearing requirements (also known as a bench trial or a court trial), California family law evaluates custody arrangements to determine what course to take. The court looks at the legally established custody arrangements, as well as the time that each parent actually spends with the child. Information about the real-world application of existing custody arrangements is used by the courts to determine just how much impact a change in said custody arrangements will impact the relationship between parent and child. Previous family law cases have established precedent regarding this point.

  • One parent having a child for 20% of the time is not enough to label the arrangement as de facto joint custody (Wheaton (1997) 53 Cal.4th 132).
  • One parent having the child one night per week and then on alternate weekends does not constitute joint physical custody (Biallas (1998) 65 Cal.App.4th 755).
  • One parent having the child for 80% of the time does constitute de facto sole physical custody (Lasich (2002) 99 Cal.App.4th 702).

It is reasonable that a court will look at the established pattern of care, i.e., how much custodial time one parent has versus the other parent in order to give context to their move away decision.

When assessing a move away request, the court considers the reason given by the requesting parent to determine whether or not the request is reasonable and legitimate, and whether or not the changed circumstances will cause an undue hardship for the children. All move away cases cause children some level of hardship, but the courts must decide if the circumstances warrant the change. Legitimate move away requests include better employment prospects and improved economic situation.

In opposing the move away, the stay behind parent may submit evidence that the move would impose undue hardship for the child. For example, a case may be made that the move would negatively impact the relationship between the parent who is not moving and his or her child.

The parent may offer evidence that the parent requesting the move away does not honor or promote the relationship between the opposing parent and child. Proof of ignoring court mandated custody arrangements, speaking poorly of the parent to the child, and other intrusive behavior are examples. The opposing parent may present such information as evidence that the move away request is being made in bad faith.

Other evidence that may be presented includes the child’s close relationships with existing family and community that may be detrimentally impacted if a move away request is granted. Or, perhaps the child adamantly opposes the move. That information may be considered by the court if the court deems the child mature enough to speak on his or her own behalf.

What Constitutes a Bad Faith Move Away?

A move away request done in bad faith is one intended to undermine the relationship between the children and the non-custodial parent. Even if the parent making the request has legitimate reasons to move, the court may still deny the request after reviewing evidence of the requesting parent’s past behavior, among other factors, as cited in Burgess (1996) 13 Cal. 4th 25.

In the case of La Musga, for example, the court determined that the mother did have a legitimate reason to move that was separate from any effort to disrupt the relationship between her children and their father. However, because of the mother’s history of working against the children’s relationship with the father, the court also determined that there was enough evidence to indicate that the mother would, in fact, discourage communication between the children and their father if her request to move with the children was granted. Therefore, the mother’s request to move with the children was denied. The La Musga court decided that, if the mother moved, custody of the children would transfer to the father.

The Takeaway: The Children’s Best Interests are Paramount

Courts acknowledge that any relocation disrupts children’s lives to some degree. The level of disruption is what the courts consider when determining whether or not children can move with a relocating parent. Courts also acknowledge a parent’s right to move, and that the burden of proof falls on the stay behind parent who must show the court that such a move would create too great an upset in the lives of the children.

As such, preparing for a move away case must begin and end with the children’s best interests in mind. Facilitating and encouraging communication between the children and stay behind parent prior to any move promotes the best interests of the children. It is also the right starting point, because it shows the court that you, as the move away parent, have a history of supporting the relationship. Establishing such a history is a critical component of winning the right to move away with your children.

If you are opposing a move, the pattern of disruption of your contact by the other parent will be informative to the Court, as well as the established pattern of care, and the child’s relationships to their extended family that are staying behind.

In addition to the important matter of maintaining and recording evidence of communication between the child and the stay behind parent, as evidenced by La Musga, many other factors must be addressed. Research and preparation of all relevant factors is key to ensuring a successful case.

© Alphonse F. Provinziano, Esq.

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