FAMILY LAW

Relocation of Custodial Parent

In Burgess v. Burgess, ___ Cal. 4th ___, 51 Cal. 2d Rptr. 444 (1996), at the trial level, the mother received sole physical custody of the parties' children as well as permission to relocate to a neighboring town where her place of employment was located. The father received liberal visitation. Although he described the drive from his town to the mother's new residence as an easy commute, the father nevertheless appealed the custody order because it required him to revise the visitation schedule that had been established pendente lite. The court of appeal held that the trial court had abused its discretion in approving the mother's proposed move with the children absent a showing of necessity for career or other reasons.

Examining the California Family Code, the California Supreme Court found no requirement that a divorcing parent prove the necessity of a proposed relocation. Although the effect of the relocation is a factor for the trial court to consider in determining the child's best interests, the parent seeking to relocate bears no special burden of proof. Because both parents after divorce may need to secure or retain employment, pursue educational or career opportunities, or reside with a new spouse, it is unrealistic to expect them to remain in the same location. Similarly, the court continued, when a divorced parent with physical custody under a permanent order seeks to relocate with the child, the parent is not required to prove the necessity of the proposed move. Rather, the parent opposing the relocation and seeking a custody transfer must show that the move will adversely affect the child's interests. This requirement is consistent with the statutory presumptive right of a custodial parent to change the residence of the child unless relocation would prejudice the child's welfare.

Similar recent decisions have also come down in Florida and New York. See Russenberger v. Russenberger, 22 Fam. L. Rep. (BNA) 1241 (Fla. 1996); Tropea v. Tropea, 22 Fam. L. Rep. 1231 (N.Y. 1996).

Nadine Roddy

Senior Research Attorney, Family Law

Note: The Lawletter is a newsletter prepared by the attorneys of the National Legal Research Group for the attorneys who are our clients. It is not a solicitation to provide legal services to the general public nor does it represent an opinion of law. If you are not a licensed attorney and believe you need legal advice or services, you should contact a licensed attorney in your area or the state or local bar association.