Family/Divorce Law in Southern California

The existing law as stated in In re Marriage of Burgess (1996) 13 Cal. 4th 25 has been confirmed by a new case: In re Marriage of LaMusga (2004) 32 Cal 4th 1072. The current interpretation of LaMusga, is that it supports the findings made in Burgess. Burgess stated that if you are the primary physical parent and you desire to move away with the children, then the burden shifts to the non-moving parent to prove that the move would be detrimental to the child(ren). That law still currently exists. What LaMusga states is that conditional custody orders [i.e., orders that read: “if you move, the court will change custody to the non-moving parent.”] are ok unless the court is attempting to coerce the parent wanting to move into changing their mind, i.e., in order to coerce that parent into deciding not to move. Thus, a custody order, conditional or otherwise, must be based on the factors enumerated in Family Code Section 3011 in determining best interest of the children. In other words, the court would be forced to make an order that remaining with the non-moving parent is truly in the child(ren)'s best interest, in light of all factors. +

Additionally, the court in LaMusga stated that some moves, in and of themselves, could be detrimental to the children. For example, if the distance of the move, or cost of travel exceeds the non-moving parent's capabilities to transport the child(ren) for frequent and on-going contact, then in essence that would be a termination of the non-moving parent's visitation rights via financial issues, and the court could therefore determine that the move would be detrimental to the children.

What our clients should look at and be aware of, is that there has been a giant refocusing of the law in the move away area. All parents must be analyzing the reasons for the move, the extent of the shared custody, and all foreseeable consequences (positive and negative) for the children. Parents would also benefit from being brutally honest with themselves when attempting to determine whether a proposed move is serving their own needs or the needs of their child(ren). It is very important that the entire focus of the move away is to benefit the child(ren), not just the parent who is seeking new employment or a better area. Some of the court's questions will focus around whether a move is narcissistic (self-serving) vs. child-centered. As an example, let's say that you, the moving party, want to be back in your family area – back in the area where you were raised. In order to aid the court in determining that the desire is child-centered rather than self-centered, the motives must be thoroughly examined and the presentation must be able to show that moving to your hometown would be in the child's best interest based upon factors such as living within a vicinity where necessary family support can be provided in order to maintain a healthy and balanced life for the child, while such family support would not be available without the move.

Our clients are advised to sincerely and critically look at all the factors regarding their proposed move and make a list as to how those factors benefit the child(ren). Furthermore, the court wants us to look at the motives of the parents. Are they all good motives? Are they all child-based? Or are the motives mixed so that they intend even partly to exclude or distance the other parent? It is not uncommon for motives to be mixed. Therefore, it is important that if motive(s) serve the moving parent, that parent be able to specifically describe the ways the move would also serve the child's best interest.

Most importantly, the court is going to be looking at what is the moving parent's plan to maintain the other (non-moving) parent's relationship with the children, so that the non-moving parent will continue having frequent and on-going contact. This is very important because the non-moving parent will attempt to prove that the move would be detrimental, and the moving parent must be prepared to present to the court a reasonable and workable plan for the non-moving parent's continued contact.

The parties need to also consider how a proposed move may affect any sibling relationships. A factor against the move away would be any kind of sibling split, including half-siblings. The court will also be looking at whether the child(ren) are going to be losing, limiting, or increasing relationships with extended family because of the move.

The following issues will be considered by the courts as well: 1) stability and continuity: are the parents willing to put the children first; will the distance of the move break the relationship between the non-moving parent and the children; what are the ages of the children - if the ages of the children are really young, that gives more reasons not to move because young children have short memories. Conversely, if the children are mature, the courts will look at the children's wishes. Additional factors will include: 2) are the parents capable of cooperating? Do these parents have the ability to communicate?

The courts can also look at the sacrifices of the non-moving parent. For example, if the non-moving parent presents evidence that they had had a better offer, better education or a better place to live, but remained in the area solely for the purposes of co-parenting, the court may find that the non-moving parent has a deeper commitment to fostering the best interests of the children.

To reiterate, the parties must thoroughly look at all facts on both sides of the case to determine if the move will meet the needs of the children, and if all motives for the move are child-based.

The attorney will provide insight and interpretations of the law but does not represent either party. The attorney is a neutral third party during this process and does not advocate for one party or the other. The attorney will provide the legal background to assist the parties in reaching their own resolutions. Mediation is not for everyone. The parties must be open to communication with one another. A commitment to full disclosure is required in order for this process to work. Sometimes an agreement cannot be reached and the Court's assistance will be needed. But for those who are willing to work together to resolve their disagreements, this process often turns difficult situations into peaceful solutions tailored to the individual needs of each family.

Mediation is often the most cost effective way to handle a family law matter. The cost of this process is generally shared equally between the parties. The cost can be much less than a typical case because only one attorney is needed rather than two.