Child custody and the relocating parent

APPELLATE ZEALOTS

A child custody "move-away" case is one in which a divorced, separated or unmarried parent seeks to move to a distant location and bring his or her children along, thereby separating them geographically from their other parent. The California Supreme Court's current approach to these cases is flawed, outdated, and in dire need of revision. The court originally developed the standard in 1996, in a case in which the custodial parent moved only a short drive away. The same standard was then extended to apply whenever one parent has permanent sole or primary physical custody, no matter how far away the move takes the children from their other parent. Moreover, even in cases where physical custody is genuinely joint or as yet undetermined, the court's analysis gives far too little weight to the children's interest in maintaining contact with both their parents.

Move-away cases involve an inherent conflict between two constitutional principles. On the one hand, both parents have an equal right to participate in the care and upbringing of their children; on the other hand, custodial parents, like any other adults, have a right to travel.

Move-away cases also highlight a conflict among policies embedded in the California Family Code. Under Section 3040, custody matters are supposed to be decided based on the best interests of the children, not the interests of either of their parents. Under Sections 3004, 3020 and 3040, joint custody is preferred, and children are supposed to have frequent and continuing contact with both of their parents. Under Section 7501, however, a custodial parent has a right to determine a child's place of residence unless a proposed move "would prejudice the rights or welfare of the child."

Burgess and Its Progeny

The California Supreme Court established the current rules governing move-away cases starting over two decades ago, in In re Marriage of Burgess, 13 Cal. 4th 25 (1996). Under Burgess, when a parent has sole or primary physical custody under a formal, permanent custody stipulation or order, that parent's right to relocate supersedes the rights of the children and the noncustodial parent to have frequent and continuing contact with one another, as well as the right of the noncustodial parent to share in the care and upbringing of the children. Under this rule, a noncustodial parent cannot prevent a move-away parent from taking the children along when he or she relocates, unless the noncustodial parent satisfies the heavy burden of proving that changed circumstances, beyond the mere fact of the move, justify reexamining the issue of custody in order to avoid substantial detriment to the children. And even if the changed circumstances hurdle is cleared, the noncustodial parent still has the burden of establishing that in light of the planned move, a change in custody would be in the children's best interests.

Cases subsequent to Burgess, including Montenegro v. Diaz, 26 Cal. 4th 249 (2001), In re Marriage of LaMusga, 32 Cal. 4th 1072 (2004), and In re Marriage of Brown and Yana, 37 Cal. 4th 947 (2006), as well as numerous Court of Appeal decisions, have clarified that when no formal, permanent custody order is in place, or when an existing order and the parents' actual time sharing practices provide for genuinely joint custody, the court considering one parent's proposed relocation will review the issue of custody de novo, seeking to determine the children's best interests based on all relevant factors, including the likely consequences of the move. However, even where a California court does examine custody de novo in a move-away situation, the court is not permitted to consider whether issuing an order giving the non-relocating parent primary custody might persuade the move-away parent to change his or her plans.

Critique of Burgess

Notably, in Burgess, the custodial parent was proposing to move a mere 40 miles away. Thus, Burgess involved a very different situation from those commonly found in contemporary move-away cases, which can involve taking children thousands of miles away. The current rules for move-away cases are susceptible to criticism on a number of grounds, several of which stem from the limitations of the Burgess fact pattern.

First, because of the short distance of the move in Burgess, the custodial parent's relocation posed no real threat to the noncustodial parent's ability to maintain a close relationship with the children. Thus, the Burgess court did not really grapple with the question of whether it is in children's best interests for Section 3020's clear policy in favor of their having frequent and continuing contact with both parents to be almost automatically superseded by their custodial parent's right to relocate under Family Code Section 7501.

The court's most recent look at Burgess, a dozen years ago in Brown and Yana, involved a move over a far greater distance (from San Luis Obispo County to a suburb of Las Vegas), and thus offered the court an opportunity to explore this issue further. The court did not do so, however. On the contrary, it held that because the noncustodial father had not made a prima facie case that the move would be detrimental to the child, he was not even entitled to an evidentiary hearing regarding his objections to the custodial mother's removal of the child.

Second, given the short distance of the proposed move in Burgess, it is unsurprising that the court did not consider the move, in and of itself, to constitute a sufficient change in circumstances to justify reconsideration of an existing, permanent custody order. The consequence of Burgess's holding on this issue, however, is that a custodial parent may relocate from California to the East Coast, or even overseas, without triggering a de novo examination as to whether the existing custody order should be modified. Such a long-distance move necessarily has a substantial effect on the children's relationship with the other parent, not to mention the children's other ties to their present community. Yet by adhering to the Burgess holding in Brown and Yana, the court implicitly rejected the idea that proposed moves may be so drastic that they should be considered a change of circumstances in and of themselves.

Third, both parents in Burgess had comparable incomes, so the amount of child support was relatively modest, and the move did not drastically alter the division of parenting time. Thus, the move was not likely to have a major impact on the amount of child support owed by the noncustodial parent, or on that parent's practical ability to exercise parenting time. Yet the Burgess rules apply even where a long-distance move is contemplated, and the noncustodial parent's share of parenting time will inevitably plummet in its wake. In such cases, not only will the non-relocating parent lose frequent and continuing contact, but in addition, his or her child support obligation will necessarily increase as a result. This leaves noncustodial parents in the unenviable position of paying more support, while seeing their children less often.

Indeed, if the cost of transportation, coupled with an increased child support obligation, places regular visits beyond a parent's financial reach, it may be a practical impossibility for the noncustodial parent to retain enough custodial time to cultivate a real parent-child relationship. Courts have attempted to devise creative solutions to this problem, but remedies such as ordering the move-away parent to bear or share the cost of visitation travel do little good if that parent cannot or will not do so, particularly given the cost of enforcement litigation. Moreover, this rule gives custodial parents who are receiving child support a perverse incentive to move as far away as possible. Yet under Burgess, even if a proposed move will entail a drastic reduction in parenting time for the noncustodial parent -- and in turn, trigger an increase in child support that will make frequent visitation unaffordable -- the move itself does not constitute a change of circumstances sufficient to trigger a de novo review of custody.

Fourth, the Burgess line of cases makes critical the distinction between truly joint physical custody, versus de facto primary physical custody with liberal time-sharing. Yet the line between those two concepts is not very clear, and many common custody arrangements could be characterized either way. See generally In re Marriage of Biallas, 65 Cal. App. 4th 755, 759-60 (1998). Moreover, because divorcing parents are often unrepresented by counsel, they may not be aware that the precise structure and language of their custody stipulation or order could have such profound consequences down the road, if one of them decides to move.

Finally, in Burgess, the custodial parent was moving a short distance for the express purpose of being closer to her new workplace after a job transfer. These facts gave the court no reason to grapple seriously with the question whether a court should be able to consider a move-away parent's motives. Rather, it concluded that since the move was not being made for the purpose of frustrating the noncustodial parent's contact with the children, the trial court did not need to inquire further into the move-away parent's decision-making. Subsequent cases have held not only that consideration of the move-away parent's motives is improper (absent a showing of bad faith), even when custody is being considered de novo, but also that the court cannot enter any order that is intended to call the move-away parent's perceived bluff, or even to discourage that parent from moving.

A Proposal for Change

Of course, a court cannot constitutionally prohibit a parent from moving. But nothing in the federal Constitution precludes it from examining a parent's motives for making a move, or from conditioning a parent's right to physical custody on their continuing to reside within time-sharing distance of the other parent. See Bartosz v. Jones, 197 P.3d 310 (Idaho 2008) (protecting children's best interests is sufficiently compelling state interest to justify restricting a parent's right to relocate with children). The custodial parent's right to travel must be balanced against the non-relocating parent's constitutional right to meaningful involvement in the care and upbringing of the children, especially in light of California's statutory preference for children to have frequent and continuing contact with both parents. Thus, if a court determines that allowing a parent to separate children from their other parent would not be in the children's best interests, the court should have the discretion to issue an order that may deter the custodial parent's move.

Burgess concluded that a custodial parent's right to determine children's residence under Family Code Section 7501 supersedes Section 3020's policy in favor of children having frequent and continuing contact with both parents. In so holding, however, Burgess did not consider whether constitutional considerations, particularly the noncustodial parent's right to participate in the care and upbringing of the children, militate in favor of drawing a different balance between the two statutory policies.

Burgess was decided over 20 years ago. The Supreme Court has not revisited the move-away issue since 2006. Meanwhile, except for Justice Ming Chin, none of the justices who participated in deciding any of these cases remains on the court today. In the interim, commentators have criticized the Burgess rule as giving insufficient weight to children's interest in maintaining contact with their non-relocating parent. See, e.g., Linda D. Elrod, "National and International Momentum Builds for More Child Focus in Relocation Disputes," 44 Fam. L.Q. 341 (2010); Richard A. Warshak, "Social Science and Children's Best Interests in Relocation Cases: Burgess Revisited," 34 Fam. L.Q. 83 (2000). Moreover, courts in other states have adopted other standards. See generally Richards, "Children's Rights v. Parents' Rights: A Proposed Solution to the Custodial Relocation Conundrum," 29 N.M. L. Rev. 245, 246-53 (1999) (surveying different state approaches).

In Nebraska, for example, all parents -- even those with sole custody -- who wish to relocate with their children to anywhere outside the state must first satisfy the court that they have a legitimate reason for moving, and then demonstrate that it is in the children's best interests to accompany them. In joint custody cases, the move-away parent must establish, in addition, that the proposed move (alone or coupled with other factors) qualifies as a change of circumstances justifying reconsideration of the joint custody order. If so, the move-away parent bears the burden of proof that it is in the children's best interests to modify the custody order to give him or her sole physical custody. In making these determinations, the court will consider the motives of both parents for seeking or opposing the move; the impact of the move on the children's quality of life; and the impact of the move on contact between the children and the noncustodial parent. Even where the move-away parent has a legitimate reason for moving, in a joint custody case, this may be outweighed by the detrimental effect the move would have on the children's relationship with their other parent. Brown v. Brown, 621 N.W.2d 70 (Neb. 2000).

In light of all this, it is time for the California Supreme Court, as presently constituted, to reexamine the Burgess line of cases in the light of experience, and adopt an alternative standard, such as the one applied in Nebraska, that gives more weight to children's interest in maintaining frequent, meaningful contact with both of their parents.