One of the most difficult challenges a trial judge in a Family Law court faces is to decide the custody of a minor child in a case where one of the parents intends to move away from the area. In all of these move away cases the former pattern of custody and visitation will necessarily fail due to added distance. One of the parents will lose the degree of contact that they formerly enjoyed.
In 1996 our Supreme Court decided the Burgess case which held that where there is a judicial custody order in place that the custodial parent has a presumptive right to change the residence of the minor children so long as the removal would not be prejudicial to their rights and welfare. It is important to note that this rule does not apply in cases where there is no custody order or when there is a working joint parenting arrangement. In light of this announcement, it is difficult for a visiting parent to intervene and stop the move away of the minor child(ren) if the custodial parent chooses to move. However difficult the challenge may be, the parent objecting is entitled to a hearing on the matter.
In the case of In re Marriage of Campos 2003 DJDAR 5237 the trial court noted that mother’s motives to move the children from Santa Barbara to Moorpark were not in bad faith and approved a move without further hearing. Father appealed as he wanted to offer evidence that the move would cause detriment to the children. The Court of Appeal reversed the trial court and stated that the objecting parent has a right to a hearing and a right to offer evidence on detriment. The court in every move away case must always consider if the moving parent is acting in bad faith and it must always consider if the children would suffer detriment rendering it essential or expedient for the welfare of the children for there to be a change of custody.
