Relocation of Minor Child – Test for the LaMusga Factors Weighed by California Courts
Imagine this: your family law case is done. You have your judgment with child custody and visitation provisions that you may or may not particularly like; but you can still sigh in relief, because the custody battle is over and you can finally move on from this litigation nightmare.
Just as you start to relax, regroup, and acclimate to your custodial timeshare with your child; a process server shows up at your door and hands you a packet of court documents. You hold up the packet and immediately recognize your family court case number on the front page just before you read words that will empty your savings account and thrust you back into the throws of litigation for the next year: Request for Order re Move Away.
Move-away requests, or requests to relocate with a minor child, can be highly emotional, contentious, and exhaustively litigated. This is no surprise considering both parents are facing the possibility of a substantially reduced physical presence in their child’s life.
Knowing what factors the family court will consider in deciding whether to modify a custody order based on a custodial parent’s proposal to change the residence of the parties’ minor child can help parents to temper their emotions and perhaps even work towards a compromise with their co-parent.
Among the factors that the court ordinarily 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 the following: the children’s interest in stability and continuity in the custodial arrangement; the distance of the move; the age of the children; the children’s relationship with both parents; 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; the wishes of the children if they are mature enough for such an inquiry to be appropriate; the reasons for the proposed move; and the extent to which the parents currently are sharing custody. Marriage of LaMusga (2004) 32 Cal. 4th 1072, 1101
Checklist for Parents Seeking to Relocate with Minor Children or Prevent Relocation of Minor Children
- The child’s interest in stability and continuity in the custodial arrangement (i.e. what is the current custodial schedule and how much would the move disrupt it?);
- Each parent’s ability to provide and care for the child compared to the other parent (i.e. each parent’s actual ability to physically, emotionally, psychologically, and financially care for the child);
- A significant change in of circumstances indicating that a custody change would be in the best interest of the child (i.e. a change that overcomes a custodial parent’s presumptive right to relocate pursuant to Marriage of Burgess (1996) 13 Cal. 4th 25, 37-38 and Family Code 7501);
- The distance of the move (how far are we talking? What will the travel time be for visitation? Who will pay for travel costs and how much will they be?);
- The age of the child and developmental needs (younger children are still forming bonds with the caregivers, while older children generally have established bonds);
- The child’s relationship with both parents (how bonded is the child to each parent? Would extended periods away from one of the parents be detrimental to the child?);
- The relationship between the parties, including, but not limited to (a) their ability to communicate and cooperate effectively, and (b) their willingness to put the interests of the child above their individual interests (chances are, if parents can’t co-parent from 2 miles apart, 2,000 more miles won’t solve the problem);
- The wishes of the child if he or she is mature enough for such an inquiry to be appropriate;
- The reasons for the proposed move (is there a legitimate job offer or is the custodial parent just looking to get away from the non-custodial parent?); and
- The extent to which the parents currently are sharing custody (changing a child’s routine from week on/week off to only seeing the non-custodial parent for two weeks over Summer Break is less likely to be in a child’s best interest than going from, for example, alternating weekends to two months during Summer Break, and a couple of weeks over Winter Break).
Courts are given the widest discretion to fashion orders and make determinations under these circumstances because each case is unique and these orders determine where, and with whom, minor children will live.