Best Interests of a Child in California Custody Change Move-away Case
In In re Marriage of LaMusga (2004) 32 Cal.4th 1072, the California Supreme Court set forth the factors a court should generally consider in determining whether a change in custody is in the best interests of a child in a move-away case.
The court stated:
"Among the factors that the court ordinarily should consider when deciding whether to modify a custody order in light of the custodial parent's proposal to change the residence of the child are the following: the children's interest in stability and continuity in the custodial arrangement; the distance of the move; the age of the children; the children's relationship with both parents; the relationship between the parents including, but not limited to, their ability to communicate and cooperate effectively and their willingness to put the interests of the children above their individual interests; the wishes of the children if they are mature enough for such an inquiry to be appropriate; the reasons for the proposed move; and the extent to which the parents currently are sharing custody." (LaMusga, supra, 32 Cal.4th at p. 1101.)
The LaMusga court explained the significance of the reasons for a proposed move. "A decision to change a child's residence ordinarily does not reflect upon the parent's suitability to retain primary physical custody." (LaMusga, supra, 32 Cal.4th at p. 1098.)
However, "'an obvious exception is a custodial parent's decision to relocate simply to frustrate the noncustodial parent's contact with the minor children. . . . Such bad faith conduct may be relevant to a determination of what permanent custody arrangement is in the minor children's best interest. ' " (Id. at p. 1099.)
Nonetheless, "even if the custodial parent has legitimate reasons for the proposed change in the child's residence and is not acting simply to frustrate the noncustodial parent's contact with the child, the court still may consider whether one reason for the move is to lessen the child's contact with the noncustodial parent and whether that indicates, when considered in light of all the relevant factors, that a change in custody would be in the child's best interests." (Id. at p. 1100.)
In a footnote that mother in the instant case relies on, the LaMusga court stated:
"We have no occasion in this case to consider circumstances in which a reason for a proposed move is to minimize contact with a noncustodial parent who has engaged in a pattern of abuse of the custodial parent or the children or who has a substance abuse problem." (Id. at p. 1100, fn. 5.)
This footnote in LaMusga does not provide support for mother's contention that the LaMusga factors do not apply in move-away cases involving domestic violence. Rather, the footnote suggests that, if a parent's reason for relocation is to limit the other parent's contact with the child, then the determination of whether a change in custody is in the best interests of the child may be affected by whether that other parent has engaged in domestic violence.
In other words, domestic violence may be a factor, among the many other factors set forth in LaMusga, to consider in the best interests analysis in move-away cases. (See F.T. v. L.J. (2011) 194 Cal.App.4th 1 at p. 28 in a move-away case, if the parent rebuts the Family Code 3044 presumption, then the court must consider the domestic violence "together with all of the LaMusga and other relevant factors" in determining the child's best interests.)