Family law and relocation in the age of ‘CalExodus’.

The practice of family law can be both rewarding and emotionally trying. I often ask my peers what cases and situations are the most difficult and challenging and without a doubt everyone agrees that relocation cases can be the most difficult and stressful of them all. Mediators and attorneys do not like relocation cases because there is no room for negotiation. Judges do not like relocation cases because it is often impossible to choose between two good parents who are both acting in good faith. Whether the Court allows or denies the move, one parent is left emotionally devastated. This is not to mention the enormous burdens that fall on the children in relocation cases, the largest burden being the burden of travel. The children are often the ones having to travel the distance between one parent and the other. Then there is also the burden associated with having less contact with a parent. Most children find electronic access via Skype, email, and telephone to be less satisfactory than visiting with a parent in person. California experienced an exodus of its residents beginning in 2020 and lasting throughout 2021. This widely termed “CalExodus” saw more than 20% of the population leaving in one year. One consequence of this was an increase in relocation cases.

Understanding California law on relocation requests
Prior to 1980, when California became the first state to authorise “Joint Custody”, move away requests were not complicated at all. At that time custodial parents could move with children, usually without restriction. At most, they might have to give notice of the move, but there were rarely provisions that interfered with this move. This would result in the noncustodial parent having to disengage and become marginally involved in their child’s life following the move.

California Family Code § 7501 has always stated, in essence, that the custodial parent has a presumptive right to move the child, absent a showing of harm to the child. This means that by statute, the parent with sole physical custody of the children has the presumptive right to change the children’s residence. Courts will not interfere with this move unless the move is detrimental to the child. However, to have this “presumptive right” to move, the parent must have been awarded custody by way of a final judicial custody determination.

With joint custody and the notion of shared parenting came the influx of relocation cases. California family law pertaining to relocation requests is essentially dependent on the type of custody and visitation the parties share. In an initial custody determination, the Court has the widest discretion to choose the parenting plan that is in the “best interest of the child”, and this includes determining whether a move away would be in the child’s best interests. However, this standard changes if the move away contest comes after a final (permanent) custody order is already in place, i.e. in a custody modification proceeding. In that case, the standard shifts to the “changed circumstances” rule: the noncustodial (nonmoving) parent has the “substantial burden” of demonstrating a material change of circumstances of a kind that renders it “essential or expedient” for the welfare of the children that custody be modified.

California Family Code § 7501 has always stated, in essence, that the custodial parent has a presumptive right to move the child, absent a showing of harm to the child. This means that by statute, the parent with sole physical custody of the children has the presumptive right to change the children’s residence. Courts will not interfere with this move unless the move is detrimental to the child. However, to have this “presumptive right” to move, the parent must have been awarded custody by way of a final judicial custody determination.

In 1996, the California Supreme Court held in the In re Marriage of Burgess case that “a parent seeking to relocate after dissolution of marriage is not required to establish that the move is “necessary” in order to be awarded physical custody of a minor child.” Similarly, a parent who has been awarded physical custody of a child under an existing custody order also is not required to show that a proposed move is “necessary” and instead “has the 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.”

In 2001 in California’s landmark relocation case, In re Marriage of LaMusga, the Supreme Court stated that the “noncustodial parent has the burden of showing that the planned move will cause detriment to the child in order for the court to reevaluate an existing custody order.” The Supreme Court reaffirmed that, according to California law, the noncustodial parent has the initial burden of showing that there is detriment in the proposed move. This substantial change in California case law created a two- part test: the noncustodial parent must first show detriment associated with the move of the child. Then, if that showing is accomplished, the court needs to determine whether a change of custody is in the best interests of the child. This two-part test has been key in court decisions after LaMusga.

LaMusga also included a variety of factors that Courts must consider before deciding whether to modify a custody order in light of the custodial parent’s proposal to change the residence of the child. These factors include:

  • the children’s interest in stability and continuity in the custodial arrangement;
  • the distance of the move and 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 and the reasons for the proposed move and
  • the extent to which the parents currently share custody.

Addressing international move away requests
International relocation cases bring with them an entirely new host of considerations. A proposed relocation of minors to a foreign country raises special issues. In addition to the factors affecting a domestic move-away, courts must also consider:

  • Cultural conditions and practices in the foreign country
  • Visitation difficulties
  • Jurisdictional issues with enforceability of the California custody/ visitation order

One crucial factor is whether the country to which the moving parent wants to take the child is a partner with the United States on the International Hague Convention on Private International Law. The Convention is designed to help host countries obtain the return of children who have been removed to another Hague Convention country, but non-signing countries will not participate. The thought — and hope — is that if a child is moved legally to a Hague Convention country, the country to which the child has moved will support court orders and enforce access promised in orders from the original country. Furthermore, courts are authorised to impose restrictions associated with international moves including the ordering of bonds to help ensure that funds are available if the orders are not followed

Conclusion
Relocation cases can be difficult and emotionally trying for everyone involved. The adverse effects of divorce are further exacerbated by today’s increasingly mobile society. Today, more than ever, multiple moves by each parent are common as people seek better employment, remarriage, or just a fresh start in life. California courts have attempted to minimise the adverse consequences of relocation by keeping the best interests of the children paramount.