<BLOCKQUOTE><font size="1" face="Verdana, Arial">quote:</font><HR>Originally posted by
[email protected]:
I left the state of WV and moved to Va with my 2 year old daughter..I didnt inform her father I was leaving..We are married and I am wanting to obtain a divorce.I left because of mental and physical abuse..The abuse was never reported to any authorities because of his connections with our county police..I was wondering if he could have me arrested for parental kidnapping..He now knows what state and city that I am in and I have a emergency protective order but I was needing to know about the law concerning my leaving that state without his knowledge.<HR></BLOCKQUOTE>
My response:
Although the following is California law, it should make sense, even to a W.Virginia hillbilly, yokel, inbred, half-wit, sister-marrying, Virginia judge.
The parent with physical custody of the children has the presumptive right to change the children's residence--i.e., to move away with the children; courts will not interfere with that decision (enjoining the relocation or changing custody) unless the move is detrimental to the child. "A parent entitled to custody of a child has a right to change the residence of the child, subject to the power of the court to restrain a removal that would prejudice the rights or welfare of the child." [Ca Fam § 7501; Marriage of Burgess (1996) 13 Cal.4th 25, 32, 51 Cal.Rptr.2d 444, 449; see Marriage of Biallas (1998) 65 Cal.App.4th 755, 762, 76 Cal.Rptr.2d 717, 721--reversible error not to consider custodial parent's presumptive right to change child's residence]
Although the custodial parent has a presumptive right to change the children's residence, in some cases you may be required to give advance notice of the relocation to the other parent.
Under the "Burgess" standards (above), the trial court did not abuse its discretion in awarding sole physical custody of two minor children to custodial Mother even though she was moving approximately 40 miles away from Father (about a 40 minute commute) so she could be closer to her new job. The children had been in Mother's temporary physical custody since the parties' separation about a year before (the children were then ages 3 and 4), although the parties had stipulated to pendente lite joint legal custody, with Father to have weekly Wednesday evening visitation and biweekly weekend visitation.
Despite Father's argument that he would not be able to maintain his current visitation schedule after the move-away and he wanted to be the children's primary caretaker if Mother relocated, the trial court found it was in the children's best interest to remain in Mother's physical custody. The Cal. Supreme Court agreed, reversing the court of appeal's reversal of the trial court order (the court of appeal had erroneously concluded Mother had the burden of establishing the relocation was "necessary"). [Marriage of Burgess (1996) 13 Cal.4th 25, 28-29, 51 Cal.Rptr.2d 444, 447]
"The trial court's order was supported by substantial evidence concerning the 'best interest' of the minor children. First, and most important, although they had almost daily contact with both parents during the initial period after the separation, the minor children had been in the sole physical custody of the mother for over a year at the time the trial court issued its order concerning permanent custody. Although they saw their father regularly, their mother was, by parental stipulation and as a factual matter, their primary caretaker . . ." The paramount need for continuity in custody arrangements weighed heavily in favor of leaving Mother as the primary caretaker. [Marriage of Burgess, supra, 13 Cal.4th at 32-33, 51 Cal.Rptr.2d at 449]
"From the outset, the mother had expressed her intention to relocate . . . The reason for the move was employment related; the mother evinced no intention to frustrate the father's contact with the minor children. Moreover, despite the fact that the move was . . . for the mother's 'convenience,' her proximity to her place of employment and to the children during the workday would clearly benefit the children as well . . .
"Although it would be more convenient for the father to maintain a daily visitation routine with the children if they remained . . . , he would still, even under his present work schedule, be able to visit them regularly and often. The trial court's order of 'liberal visitation' included overnight visits on alternative weekends and additional weekday visits each month . . ." [Marriage of Burgess, supra, 13 Cal.4th at 33, 51 Cal.Rptr.2d at 450]
Finally, the record showed the trial court considered the Ca Fam Code § 3011 "best interests" factors. There was no evidence of "abuse" by either parent; and, "indeed, each parent conceded that the children were well treated and expressed a willingness to afford each other liberal visitation." [Marriage of Burgess, supra, 13 Cal.4th at 33, 51 Cal.Rptr.2d at 450]
Not all move-aways are as easy as the Burgess scenario--i.e., a proposed 40-mile move that translated into a 40-minute car commute. If you represent a nonmoving parent in a case where the planned relocation is a far greater distance (or even cross-country), the reasons for the proposed move are fairly weak, the children are very young and the parties have no money to effect transportation of the children back and forth, attempt to distinguish Burgess on its facts. The opinion permits trial courts to consider in the "best interests" analysis the effects of the relocation on the children's rights or welfare, which includes their relationship with the nonmoving parent. [See Marriage of Condon (1998) 62 Cal.App.4th 533, 550, 73 Cal.Rptr.2d 33, 45--factual distinction in proposed 8,000 mile move to Australia caused appellate court to "question applying too strict an interpretation of Burgess"]
Conversely, a move-away parent who has been the children's principal caretaker should argue that, clearly, the children can only be in one parent's primary custody and, "therefore, your honor, who is it going to be?"
IAAL
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