California Supreme Court Weighs In On Moveaway Issue

The California Supreme Court recently announced its decision in the Marriage of Burgess. Paul and Wendy Burgess had two children and separated in May of 1992. The mother moved to an apartment in Tehachapi, while the father remained in the former home, also located in Tehachapi. Paul and Wendy entered into an agreement in which they would have joint legal custody of the children while Wendy would have sole physical custody. Their agreement provided for weekly visitation between Paul and the children.

Wendy accepted a job transfer to Lancaster and planned to relocate with the children in June of 1993. Paul objected to the children moving, stating that it would impact his visitation with the children. After the hearing, the Trial Court found it to be in the best interest of the children to allow them to move to Lancaster with their mother and to afford Paul liberal visitation. Paul appealed the ruling and the Court of Appeal reversed, indicating that the move would significantly impact the existing pattern of care and adversely affect the nature and quality of Paul’s contact with the children. The Court of Appeal stated that once Paul showed the adverse affect, Wendy had to prove that the move was necessary. If necessity was shown, the Trial Court would decide the issue based upon whether the benefit to the children in going with the moving parent outweighs the loss or diminution of contact with the non-moving parent.

The Court of Appeal reversed the decision of the Trial Court, stating that Wendy failed to show her move was necessary. Wendy appealed to the California Supreme Court, which reversed the decision of the Court of Appeal. The Supreme Court concluded that an initial custody determination is based upon the best interests of the children. A parent seeking to relocate does not have to establish that a move is necessary in order to have custody. Similarly, after a custody order is in place, the custodial parent seeking to relocate does not have to establish that the move is necessary, but instead has a right to change residence of the children subject to the power of the court to prevent a move that would prejudice the rights or welfare of a child.

The Burgess decision represents a significant change in the way moveaway cases are handled by trial courts. The decision makes it easier for the custodial parent to move away from the visiting parent.

Many questions remain unanswered about the application of this decision in the trial courts on a case-by-case basis.