Child Custody in California: When Can You Move?

In recent years, under the case of Marriage of Burgess, the “primary custodial parent” had the presumptive right to relocate to a different geographic area with the minor children. The reason for this legal conclusion rested with the psychological and legal communities’ belief that the lesser time share parent would be able to still have quality time with the child with a re-engineered time share program, thereby still supporting the concept of quality parenting time.

However, a California Supreme Court case, Marriage of LaMusga (pronounced “La Moo-shay”), reinterpreted the former law and made it more difficult for parents to relocate with the children. Now, the parent who objects to such a move is afforded a significant opportunity to fight such a move on the basis that it would be detrimental to the minor children.

Prior to LaMusga, the custodial parent was frequently allowed to move; under this new interpretation, the non-custodial parent can now often stop such a move.

Under LaMusga, judges have the “widest possible discretion” in considering a parent’s request to relocate with the minor children. Under the new standard, if the non-custodial parent can prove a “significant detriment” to the move, the court must apply the best interest standard in determining whether custody should be changed to the parent who remains.

In a significant departure from prior case law, the court can consider the move itself as creating a “significant detriment” that would trigger a best-interest determination as to which parent should have custody in light of the move. In deciding whether to grant the move, the court is required to consider the factors below.

The LaMusga opinion goes far to increase judicial efficiency and predictability by providing an eight-part test for move-away cases. The majority stated that among the factors that the court should consider when deciding whether to modify a custody order in light of the custodial parent’s proposal to change the residence of the child are:

(1) The children’s interest in stability and continuity in the custodial arrangement;
(2) The distance of the move;
(3) The age of the children;
(4) The children’s relationship with both parents;
(5) The relationship between the parents including, but not limited to, their ability to communicate and cooperate effectively and their willingness to put the interests of the children above their individual interests;
(6) The wishes of the children, if they are mature enough for such an inquiry to be appropriate;
(7) The reasons for the proposed move; and
(8) The extent to which the parents currently are sharing custody.

Clearly, this eight-part test was not intended to be exclusive, but the test is a baseline from which trial courts should start their analysis. Further, it should serve as an aid to both parents and practitioners, presumably by harmonizing their arguments. Accordingly, the trial court’s difficult task of balancing all relevant competing interests will be made easier, or at least more efficient, where the parties are speaking to the same points.

LaMusga is a good case for kids. It keeps the court’s focus on a child’s interests. It encourages parents to share. It recognizes the importance of, and affirmatively protects, a child’s interest in having both parents. And finally, it has the potential to reduce domestic conflict by giving greater predictability in the family courts.

The practical implication of the LaMusga decision is that the parent seeking to prevent the move will try to present evidence that the move itself would be significantly detrimental to the best interests of the minor child. In such cases, the court will need the assistance of a child custody evaluator to present psychological evidence showing the impact of such a move on the child and the child’s relationship with the non-moving parent.

Since each family system is unique to that family, it is impossible to generalize and say with certainty how the court will respond to a request to move. For these reasons, it is essential that the parent that is requesting the move or the parent asking that the child remain behind consult with an experienced family law attorney skilled in understanding this developing and complicated area of the law.