CUSTODIAL PARENT CAN “MOVE-AWAY” WITH CHILD IF FACTORS MET

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An important case has recently come down wherein it was determined that a California family law trial court failed to understand the findings it was required to make in deciding a “move-away” motion by a custodial parent.  As a result, in the case of F.T. v L.J. (2011) 194 CA4th 1, 123 CR3d 120, California’s Appellate Court ruled the trial court improperly denied the father’s request to move out-of-state.

The facts of the case are as follows:

The couple dated briefly, but they were unmarried at the time of the birth of their Child.  At first, the Child lived with his Mother.  When Child was a little over a year old, Mother deliberately burned him with a hot curling iron.  Father filed for a paternity action, and as a result, he became the primary custodial parent, with Mother initially having only supervised visitation.  Through the course of several evaluations and mediations, the parties stipulated to a series of temporary orders.

Father initially wanted to move to Texas with the couple’s Child.  But when the Child was four (4) years old, Father sought to move to the state of Washington, where his new wife had a business and lived with her two children.  When a custody evaluator recommended to the trial judge against the move due to concern regarding the damage that would ensue to the Child’s relationship with his Mother and Stepfather if the Father moved Child to Washington, the trial court denied Father’s request to move.  And Father appealed.

California’s Court of Appeals reversed the trial court’s erroneous order.  It held that the trial court had misunderstood the factors that needed to be weighed in evaluating a “move-away” for a custodial parent.  Father had argued that as the primary custodial parent, he had a presumptive right to move with the child.  The appellate court responded that, because no permanent custody orders had ever been made, there was no such presumptive right, and the best interest standard must be used.

However, the appellate court went on to state, the trial court appeared to misunderstand the factors that are to be used in determining a child’s best interest.  Specifically, the trial court did not make any orders to accommodate the Father’s proposed move, and the record showed that the court assumed that the father would not move if his request were denied.

It was also decided that the trial court had incorrectly determined that Father’s reason for moving was insufficient, even though a custodial parent is not required to show that a proposed move is “necessary.”  Lastly, the appellate court reasoned that the trial court gave too much weight to the probable disruption of the Child’s relationship with his Mother, which was only one factor to be considered.

FATHER CAN MOVE AWAY WITH CHILD WHEN ENSURING SON’S ACADEMIC PROGESS

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An interesting unpublished opinion, entitled IRMO R. & M., was filed late last year by the California Appellate Courts.  In it, the appellates ruled that evidence that a Father maintains a more stable household and is more likely to ensure his son’s academic progress warrants new custodial orders placing the child with father when he moves to New Jersey.

It is important to remember, however, that unpublished opinions are succinctly covered under the California Rules of Court, which provide that “an opinion of a California Court of Appeal or superior court appellate division that is not certified for publication or ordered published must not be relied on by a court or a party in any other action.”  Thus, all unpublished opinions discussed at this cite should be considered for educational purposes only, and they should not be cited or relied upon except as permitted under California’s rules of court.

The pertinent facts of IRMO R. & M. were as follows.  In 2008, Mother and Father agreed to joint legal and physical custody of their son.  Under this agreement, both parties would have equal timeshares of their son.  In 2010, Father moved to modify the 50-50 time split due to his concern with Mother’s stability, her use of prescription pain medication, her “chaotic” home environment, and her inability to ensure Son was attending school.

Based upon a finding Mother had been unable to ensure Son regularly attended school, the trial court accepted most of the mediator’s recommendations and awarded custody to Father during the school week with Mother having visitations on certain weekends.  Father’s custody share was 78% under these temporary orders.

In January 2011, Father remarried.  Two months later, he moved to modify the custody arrangements to reflect his decision to move to New Jersey.  Father cited a job change and the fact his new wife lives in New Jersey as reasons for the move.

A custody mediator produced a report recommending the court award primary physical custody to Mother when Father moved to New Jersey.  The trial court, however, found Father to be the primary parent, and that he would insure Son progressed academically and maintained a more stable household.

The trial court compared this to the less favorable circumstances in Mother’s household and the physical challenges she was required to deal with a result of her poor health.  Based upon such findings, the trial court ruled Son would live with Father in New Jersey, but it reserved a generous visitation schedule for mother, and the appellate court affirmed.