May 13, 2004

New case may make it harder for custodial parent to move away

This week’s question:
I was talking with a friend of mine in Safeway last week and she was telling me that I may have a difficult time moving back to Kansas with my young children because of a new case. Do you know anything about that case? Isn’t this a free country where I can move with my children if I want? The cost of living here in Almaden Valley is impossible!

Brittney B.
Almaden Valley

Dear Brittney:
While I wholeheartedly agree with you that the cost of living here in the Almaden Valley is impossible, one must look at father’s rights also when it comes to “move away” cases.

That’s just what the California Supreme Court did in a very recent case. It has already been called “historic” and an important clarification of case law as well as a reaffirmation of the importance of both parents in a child’s life.
The case is called the LaMusga case (04 C.D.O.S. 3687 4/29/04). In that case, a Contra Costa County custodial mother, Susan, wanted to move to Ohio with her two young sons, now 12 and 10. Gary LaMusga, father of the children, fought the move. He argued that moving would be harmful to his children because it would damage their relationship with him.

The trial court ruled in the father’s favor. And although the intermediate Court of Appeal ruled in the mother’s favor, the California Supreme Court upheld the trial court and decided in favor of the father.

The California Supreme Court held in part that: “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 ... may be sufficient to justify a change in custody.”

Since 1996, the Burgess case had been possibly misinterpreted by some courts, according to this new case. Some commentators have come to the conclusion that this older case had placed too much focus on the custodial parent’s perceived rights (e.g., the right to move) instead of the well-being of the children.

Of course, in the LaMusga case, distance is one of the most prominent factors to consider. But there are other factors to consider as well, as outlined in the new Supreme Court case. One would need to look at all of the factors involved for a balanced perspective.

The Supreme Court noted 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. Rather, the noncustodial parent bears the initial burden of showing that the proposed relocation of the children’s residence would cause detriment to the children, so as to warrant re-evaluation of the children’s custody.

In LaMusga, the court found that 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 could cause detriment to the children. Such impact, when considered in light of all of the relevant factors, may be sufficient to justify a change in custody. If there is such a showing, the trial court must determine whether a change in custody is in the best interests of the children.

Brittney, a note of caution is quite important here. It is very important to note that every case is different and it is quite unwise to focus on only one or two facts of your case. I think it is in your best interest to discuss your situation with your own attorney and then take it from there. Just reading the case and jumping to conclusions may be a little risky.

If you want to read the case for yourself, you can do so by going to the California Supreme Court website. The link is: http://www.courtinfo.ca.gov/opinions/documents/S107355.DOC. You should be able to read and print out the case for 120 days from the date of publication, April 29, 2004.

Good luck, Brittney. I hope that you can work things out.

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 e-mail 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. Want to learn about a specific legal issue or how DeVries can help you? Visit his web site at www.almadenvalley lawyers.com. Almaden Times columns since 1986 are available there. 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.