Change in Custody—"Move-Away" Cases

Following a court order determining custody rights, a custodial parent will often seek to relocate with the minor children. As a threshold matter, the parent proposing to move should first examine the governing court order to determine whether there are any existing restraints on moving. At a very minimum, some notice must be given to the non-custodial parent in any event (Family Code §3024). If possible, at least 45 days notice should be given (Family Code §3024, In re: Marriage of McGinnis (1992, 2nd Dist) 7 Cal App 4th 473, 9 Cal Rptr 2d 182). If there are no judicial restrictions on the move, then consideration should be given to the effect of the move on the parents’ children.

A central theme of all child custody issues is the best interests of the minor children. The rule in California is that the children’s interests are served by their maintaining frequent and continuing contact with both parents (Family Code §3020). In deciding any custody matters, the courts will focus on these issues.

A change in residence, therefore, cannot be undertaken merely to frustrate the visitation rights of a non-custodial parent. Nevertheless, In 1996, the California Supreme Court decided the case of Burgess v. Burgess (13 Cal.4th 25, 51 Cal.Rptr.2d 444). The court held that the parent with custody of the minor children has a presumptive right to change their residence. The relocating parent does not have a duty to demonstrate that the move is "necessary." Therefore, although not necessarily a requirement to sanction the move, a change in employment or other outside factor would demonstrate to the court that the move is not intended as a tactic to frustrate the non-custodial parent’s rights of visitation.

The move, however, can always be examined by a court to determine whether it would be harmful to the minor children. (See Family Code §7501). If the change in residence would prejudice the minor children’s rights, it may be restrained. Furthermore, many court orders provide that neither parent may remove the children from the county or the state of California without the consent of the other parent, or an order from the court, or at a minimum, notice to the other parent. (See Family Code §3024)

If, however, a parent shares joint physical custody with his or her ex-spouse, the court may review the entire custody arrangement anew. In its now famous "footnote 12 exception," the Supreme Court in Burgess noted that, a trial court must determine "de novo" (a complete, new examination of the issues) what custody arrangement is in the children’s best interest. Therefore, in joint custody cases, the custody arrangement becomes subject to a full re-review when one party wishes to relocate.

Frequently a court will award "joint legal custody," with "primary physical custody" to one parent. Such orders can complicate matters, especially in situations involving public assistance. Although the term "primary physical custody" is not found in the Family Code, it has been interpreted to mean "primary caretaker" (See Family Code §3086). In such cases, the courts will look to the actual arrangements between the parties despite the custody label. Therefore, if a court has awarded one parent "primary physical custody," a trial court may nevertheless, make a de novo determination of custody. (See Brody v. Kroll, 45 Cal.App.4th 1732, 53 Cal.Rptr.2d 280 (1996)).

In non-move away cases, if parents have joint physical custody, one parent must establish a change in circumstances in order to obtain a modification of a custody order (Congdon v. Congdon, C.A. 5th, No. F029118, Feb. 25, 1999 99 D.A.R. 1903). Courts are reluctant to disrupt the routine of the parents’ minor children. Therefore, any change in custody will require a showing of a change in circumstances.


Copyright © 1999 Roy A. Barry, all rights reserved.