California ruling on move-away cases splits family advocates.

A recent California Supreme Court ruling has sparked controversy among family law attorneys over whose interests prevail and what presumptions can be made in custody-relocation disputes. The case centered on whether a parent with primary physical custody of his or her children may move despite the objections of the noncustodial parent.

The court had previously held that the custodial parent has a presumptive right to relocate and retain custody, unless the other parent can show that the move would be detrimental to the children. (In re Marriage of Burgess, 51 Cal. Rptr. 2d 444 (1996).) But in In re Marriage of LaMusga, the court said that "just as a custodial parent does not have to establish that a planned move is 'necessary,' neither does the noncustodial parent have to establish that a change of custody is 'essential' to prevent detriment to the children from the planned move." (12 Cal. Rptr. 3d 356, 359 (2004).)

Family law practitioners are split over whether this ruling overturns a bright-line standard allegedly set in Burgess or merely clarifies the earlier decision.

Susan Navarro of Contra Costa County, California, remarried after her 1996 divorce from Gary LaMusga and had primary custody of their two children, Garrett and Devlen. In February 2001, she petitioned for a change in the father's visitation schedule to allow her to move with the two boys, then ages eight and six, to Cleveland, where her family lives and her husband had found a new job. LaMusga objected and asked for primary custody if she moved.

A court-appointed child psychologist supported LaMusga's contention that the move would disrupt his relationship with his sons, and the court ruled in his favor. The appeals court reversed, finding that the trial court had misapplied Burgess and should have required LaMusga to show that a custody change was "essential" to prevent harm to the children.

The state supreme court disagreed, holding that the trial court had been well within its discretion. "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," Justice Carlos Moreno wrote for the court.

While the appeal was pending, Navarro abandoned her plans to move to Ohio and instead moved with the children to Arizona. The trial court ruled that the children could remain with her until the end of the appeal. Navarro tried to abandon her appeal, claiming it was moot because LaMusga's objection was to her move to Ohio. The state supreme court did not allow this, insisting the custody-relocation issues were still relevant.

Navarro has asked the high court to rehear the case. In her petition, she argued that Burgess created a bright-line standard in favor of the custodial parent and that the state legislature had codified the ruling, upholding this presumption as public policy. The LaMusga ruling established a more lenient standard that would interfere with custodial parents' rights to make decisions in the best interests of the family, she said.

"The LaMusga decision effectively eviscerates the Burgess decision," said Marci Fukuroda, staff attorney with the California Women's Law Center in Los Angeles, which filed an amicus brief supporting Navarro. "Many frame the relocation issue as pitting the rights and wishes of the custodial parent against those of the child. This argument ignores the reality that a child's welfare is inextricably intertwined with the welfare of the custodial parent."

She added, "In granting primary physical custody to the custodial parent, the [trial] court has already determined that it is in the child's best interests to be in that parent's care and custody. This includes having confidence in that parent's ability to make decisions regarding the custodial family's welfare."

Garrett Dailey of Oakland, California, who represents LaMusga, disagreed, saying that his client's objections to the move involved the children's interests--in their relationship with him--and that he never asked the court to overturn Burgess.

"Our position was that he prevailed under the Burgess test and the trial court's decision was reversed because Burgess was being consistently misapplied by the lower courts," Dailey said.

Several groups that filed amicus briefs in the case argued that Burgess did not-establish a bright-line standard, but instead encouraged a case-by-case evaluation of the best interests of the children, with the understanding that the custodial parent would usually be allowed to relocate. The court agreed, saying that "bright-line rules in this area are inappropriate: Each case must be evaluated on its own unique facts."

"This ruling is less about noncustodial parents' rights than the rights of children to have their best interests considered," said Dailey. "This is why inflexible rules are seldom in a child's best interest. There are no average children and no average families. Trial judges need discretion to fashion orders that serve the needs of children. Burgess, as it was being interpreted, was all about taking that discretion away. LaMusga gives it back."