California Divorce Guide: American Divorce Association For Men

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This past year, 2004, has seen significant change in the area of "move away" law. In recent years, under the case Marriage of Burgess, the "primary custodial parent" had the presumptive right to re-locate to a different geographic area with the minor children. However, under a recent California Supreme Court case, in Marriage of LaMusga (pronounced “La Moo-shay”), has re-interpreted the former law and made it more difficult for parents to relocate with the children, whereas the parent who objects to such a move is afforded a significant opportunity to fight such a move on the basis that such a move would be detrimental to the minor children. Whereas prior to LaMusga the custodial parent was frequently allowed to move, under this new interpretation the non-custodial parent now can often stop such a move.

Under LaMusga judges have the "widest possible discretion" in considering a parent's request to re-locate 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-interests 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 following factors:

1. Stability and continuity of custodial relationships
2. Distance of move
3. Ages of children
4. Relationships with Both parents
5. Relationships between parents
   • Ability to communicate and cooperate;
   • Willingness to put needs of the children before their individual interests;
6. Child's preference if they can express a knowing and mature preference;
7. Reasons for move
8. Extent of shared custody prior to move request

The practical implication of the LaMusga decision is that the parent seeking to prevent the move will seek to present evidence that the move itself would be significantly detrimentalto the best interests of the minor child. It is likely that litigants will request a 730 child custody evaluation to seek to present psychological evidence showing the impact such a move would have on the child and the child’s relationship with the non-moving parent.

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