California Child Custody Laws
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Custody Move Away Rules Have Not Changed
© Robert Kroll, August 8, 2004

La Musga case has not made moving away more difficult for good parents

Since the end of April, 2004, parents throughout the country have been concerned that the rules regarding child custody and parental relocation have changed and now favor the non-custodial parent who seeks to stop the custodial parent from moving away. That is not the case.   For Californians, the rules have been set clearly since 1996 under the state Supreme Court ruling in Marriage of Burgess. 13 Cal.4th 25. The very recent and widely publicized California Supreme Court decision in Marriage of LaMusga (pronounced “La Moo-shay”) did in fact affirm Burgess butupheld a trial court ruling that a mother seeking to move to Ohio should relinquish custody of the couple’s two children to the father if she moved. The court’s rule is as follows:

The likely impact of the proposed move on the noncustodial parent's relationship with the children is a relevant factor in determining whether the move would cause detriment to the children and, when considered in light of all of the relevant factors, may be sufficient to justify a change in custody. If the noncustodial parent makes such an initial showing of detriment, the court must perform the delicate and difficult task of determining whether a change in custody is in the best interests of the children. La Musga at 32 Cal. 4 th 1072, 1079.

The most significant fact of the La Musga case for the high court, rarely reported in the media discussions, is that the couple had done a formal, extensive custody evaluation prior to determining originally that the mother should have custody. The evaluator had noted that Mrs. La Musga was “struggling with supporting and encouraging frequent and continuing contact between the children and their father” and the father alleged that mom was actually moving to further her efforts to alienate the children from him. The trial court had apparently taken that issue very seriously in its determination to do what was in the best interests of the children. The court awarded custody to the father. Had Mrs. La Musga not been characterized as a mother who actively fought efforts of the father to spend time with his children, the case would likely have turned out otherwise.

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In California, and most other states, the "best interests of the child or children" is the key to any decision about parenting and custody. One of the fundamental bases for a child’s well being is that the parents foster frequent and continuing contact between the child and the other parent. A general rule that many judges follow is that custody should be awarded to the parent most likely to share custodial time with the other parent. And, the reverse is also true: custody should not be awarded to a parent, apparently like Mrs. La Musga, who is “struggling” with the problem of her anger at her ex- husband and the children’s needs. The implication of the evaluation report, perhaps harsh: that Mrs. La Musga was putting her own needs ahead of her children’s, was most likely the basis of the trial court’s decision and of the state Supreme Court’s upholding of it (and the reversal of the middle level Court of Appeal’s decision that struck down the trial court’s ruling).

Contrary to popular and media belief, La Musga does not stand for the proposition that parents ought not to be allowed to move with their children. La Musga still places the initial burden of proof on the non-custodial parent to show that a move would be detrimental. But the case holds that once that detriment is credibly alleged (with some evidentiary basis), the burden shifts back to the moving parent to show either that there is no detriment or that any detriment is out-weighed by the benefits of maintaining the current custodial arrangements. If a judge believes a parent is moving in "bad faith", i.e. to distance the children from the other parent, the judge may order a change of custody.

There will always be judges who feel that placing large distances between children and their parents is so detrimental to the children’s needs that a custody change is required. That would be a minority opinion, I suspect, because ultimately, the children are better off remaining with one primary parent who will share time reasonably, happily, and share the burden of the added distance.

See also How to Play the Move Away Game

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