January 13, 2005

Devries Column

Non-custodial parent entitled to court hearing in move-away case

This week’s question:
My ex-wife is threatening to move away with our two children, ages 6 and 8. This is just going to tear me up and maybe them too. I have read all about joint legal custody and joint physical custody, but unfortunately, my ex-wife has both sole legal and sole physical custody. I do have visitation rights and I love my kids very much. Is there anything I can do?

Brandon B.
Almaden Valley

Dear Brandon,
Until a few weeks ago, I would probably have said there is not much that can be done. But now there may be a ray of hope for someone in your situation.

A case was announced on Dec. 22, 2004, entitled In re Marriage of Brown and Yana that may be helpful. That case arose in San Luis Obispo County. Nicole (Mom) and Anthony (Dad) were divorced and had a son, Cameron, age 12. Nicole had sole physical and legal custody of Cameron. Anthony had visitation rights.

Nicole wanted to move to Las Vegas with her new husband with whom she had two children, ages 6 and 2. Mom gave Dad notice of her intended move out of state. Anthony opposed the move since he would then see his son much less frequently and since the boy evidently did not want to move away with his mother.

Mom filed a move-away motion with the court, seeking to adjust Dad’s visitation with the boy since she planned to move to Las Vegas where her new husband had taken a new job. She argued that Cameron was doing well, was very close to his two half-siblings and that there was no reason why she couldn’t move away with the child.

Dad filed papers with the trial court, too and the trial court temporarily restrained Mom from leaving with Cameron, appointed an attorney for the boy, and set the matters for a hearing.

When the matter came on for a brief hearing in the trial court, Dad requested a custody evaluation and a full evidentiary hearing. Mom opposed this, of course, since she had sole legal and physical custody. The trial court denied Dad’s request for a full evidentiary hearing and Dad appealed. (An “evidentiary” hearing generally is one with witnesses, reports, other documents, etc., sometimes quite long and involved.)

The Court of Appeal for the Second Appellate District, Division Six, held that Dad was entitled to a full evidentiary hearing even though he had only visitation rights and Mom had sole legal and physical custody of the 12-year old boy.

The Court of Appeal cited Dad’s attorney’s argument that Cameron’s ties to San Luis Obispo County, Cameron’s reluctance to break those ties and the boy’s desire to live with his father.

The Court referred to earlier cases entitled Burgess, LaMusga, and Campos and stated that:
“The wishes expressed by ‘mature enough’ children are one of the factors cited by LaMusga that the court should consider. Campos makes it clear that the consideration should be in the context of an evidentiary hearing.”

The court also referred to possible “problems in his mother’s home” that should be explored in more detail in a full hearing.

In an interesting comment, the Court of Appeal stated:
“Child custody matters present some of the most difficult questions a court can face. Move-away cases are particularly difficult. When a parent moves away with a child, invariably there are impediments, some insurmountable, for the noncustodial parent wishing to maintain a close relationship with the child. The gravity of the trial court’s decision mandates that the parties have a full opportunity to present, and the trial court have a full opportunity to consider, the relevant evidence. Here there are a number of issues for the court’s consideration. Since 1999 Yana [Dad] has had neither legal nor physical custody. Although his status calls into question his fitness as a parent, it is nevertheless not an insuperable barrier to a hearing to determine custody.”

The Court emph-asized that it was only holding that the non-custodial parent, Dad in this case, was entitled to a full evidentiary hearing, not necessarily that he would eventually prevail.

It should also be noted that a dissenting opinion was filed by Justice Yegan. He stated that a full evidentiary hearing should not be given to the non-custodial parent, finding that the proposed relocation of a parent having sole legal and physical custody of a minor child does not warrant a re-examination of the custody order.

Since the opinion was just issued, it is difficult to say whether the case could reach the California Supreme Court.

If you want to read the entire case for yourself, feel free to log onto the following free link: http://caselaw.lp.findlaw.com/data2/californiastatecases/b170252.doc.

And good luck, Brandon. I hope everything turns out well for you and your son.

Donald J. DeVries
Almaden Valley

Donald J. DeVries is an attorney practicing law in Almaden Valley. If you would like him to answer your question in his next Almaden Times column, you can reach him by email at don@almadenvalleylawyers.com, fax at (408)268-6502, telephone at (408) 268-9500, or mail at, 6475 Camden Avenue, Suite 200, San Jose, CA 95120. Your matters are personal and private, so of course, he will not disclose your identity or any details about your situation. Visit his Web site at www.almadenvalleylawyers.com to view Almaden Times columns since 1986. DeVries writes this column to provide you with general information about important legal matters affecting California residents—not to give you legal advice about your specific matter. No attorney-client relationship is created by these articles. The law is complex and constantly changing and varies from state to state. So you should consult an attorney before taking any action that would affect your personal or business matters.