The noncustodial parent (the parent who is not the primary physical custodian) must make a prima facie showing of detriment to child from proposed move to obtain an evidentiary hearing. I just had a hearing in which the noncustodial parent who lives in California requested that the court order my client who is in Italy with the minor child, have the child returned to California, change physical custody, and multiple other relief.
The Request for Order (RFO) in its entirety was denied but the Judge did caution both parties to meet and confer as to the issue of visitation prior to bringing forth another RFO if there is no agreement.
The key in custody cases is that both parties’ should informally try to resolve the issues prior to seeking court intervention. If not, the Judge will make the decisions. In re Marriage of Brown & Yana (2006) 37 Cal.4th 947 involved a mother who was awarded sole legal and physical custody of their son. She was planning to move with her second husband and family to Nevada where her present husband had taken a job.
The father of the minor-at-issue conceded that the mother was not relocating in bad faith but sought an evidentiary hearing and change of custody based on his assertion that the move would be detrimental to the child. The court ruled that the father was not entitled to an evidentiary hearing. The trial court’s denial of relief without a hearing was not an abuse of discretion. The trial court retains the right to deny a request for change of custody without an evidentiary party if the requesting party fails to meet its burden of proof.
A parent with sole legal and physical custody of a child does not have an absolute right to relocate with the child. Under Family Code (FC) 3006 and 3007, a parent with sole custody has a right to supervise and make decisions regarding the child’s residence and education. However, under FC 7501, even a parent with sole custody may be restrained from changing the child’s residence if the court determines that doing so would be detrimental to the child.
The seminal move-away case, Marriage of Burgess (1996) 13 Cal.4th 25, referred to the right of a custodial parent to move away with the child as a presumptive right that might not prevail if the move would be detrimental to the child. This is an area that requires expertise—and I do not say that lightly. It is very fact driven and the Judge must balance several public policy driven policies such as the “frequent and continuing” relationship of the child to both parents.
The court has a very difficult job in ascertaining what is the “best interest” of the minor and if not the initial custody order, if there has been a substantial change of circumstance from the prior order which necessitates a change.
Yes, I have been on both sides of the aisle—requesting a move away and opposing one. Never an easy “battle” and case laws coupled with in depth case-by-case analysis are needed. Custody matters are fact intensive so hire an attorney who is knowledgeable in this area. If you surpass the threshold burden of getting an evidentiary hearing, make sure you have an attorney that will be able to present your case in cogent manner with appropriate witnesses and exhibits.
Feel free to call my office at 310-601-7144 or email me at [email protected]
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