In re Marriage of Burgess
In In re Marriage of Burgess (1996) 13 Cal.4th 25, a case concerning "the standards to be applied when the parent with sole physical custody seeks to relocate" ( Ruisi v. Thieriot (1997) 53 Cal.App.4th 1197, 1203), the Supreme Court held "the standard of proof is the same as in any other matter involving changed circumstances. That is, the existing custody arrangement should be preserved unless a change in custody is 'essential or expedient for the welfare of the child.'" ( Id. at p. 1202, citing Burgess, at p. 38.) Citing section 7501, the Supreme Court stated its holding was "consistent with the presumptive 'right' of a parent entitled to custody to change the residence of his or her minor children, unless such removal would result in 'prejudice' to their 'rights or welfare.'" (Burgess, at p. 38.)
The Supreme Court observed that section 7501 "applies, on its face, to cases involving removal of a child by a parent entitled to custody" and "has consistently been applied by our courts in move-away cases. " (Burgess, at p. 35, fn. 4.) The Supreme Court also observed: "It has long been established that, under Family Code section 7501, the 'general rule is that a parent having child custody is entitled to change residence unless the move is detrimental to the child.'" (Id. at p. 35.)
Based upon section 7501 as interpreted by Burgess, supra, 13 Cal.4th 25, and its progeny, LaGuardia contends that as the parent with undisputed de facto sole physical custody of Antonio, LaGuardia had an absolute right to relocate Antonio to Las Vegas unless Tamura as the objecting noncustodial parent were able to show a change in custody was warranted. LaGuardia thus concludes that when by move-away motion he sought to exercise his presumptive right under section 7501 to change Antonio's residence and Tamura opposed such motion, the dispositive issue was whether the proposed relocation rendered a change of custody to Tamura essential for Antonio's welfare. (Burgess, at pp. 37-38; Ruisi v. Thieriot, supra, 53 Cal.App.4th at p. 1202.)
The Supreme Court concluded that "in an initial judicial custody determination based on the 'best interest' of minor children, a parent seeking to relocate does not bear a burden of establishing that the move is 'necessary' as a condition of custody. Similarly, after a judicial custody order is in place, a custodial parent seeking to relocate bears no burden of establishing that it is 'necessary' to do so. Instead, he or she 'has the right to change the residence of the child, subject to the power of the court to restrain a removal that would prejudice the rights or welfare of the child.'" (Burgess, at pp. 28-29, citing 7501.)
Noting that "after a judicial custody determination, the usual 'changed circumstances' test applies in removal cases" (Burgess, at p. 35, fn. 4), the Supreme Court observed: "Ordinarily, after a judicial custody determination, the noncustodial parent seeking to alter the order for legal and physical custody can do so only on a showing that there has been a substantial change of circumstances so affecting the minor child that modification is essential to the child's welfare. As we have explained: 'The changed circumstance rule requires that one identify a prior custody decision based upon circumstances then existing which rendered that decision in the best interest of the child. The court can then inquire whether alleged new circumstances represent a significant change from preexisting circumstances, requiring reevaluation of the child's custody.'" ( Id. at p. 37, ) The Supreme Court then concluded that "the same allocation of the burden of persuasion applies in the case of a custodial parent's relocation as in any other proceeding to alter existing custody arrangements." (Ibid. )
Thus, characterizing the required showing as "substantial," the Supreme Court in Burgess, supra, 13 Cal.4th 25, stated that in "a 'move-away' case, a change of custody is not justified simply because the custodial parent has chosen, for any sound good faith reason, to reside in a different location, but only if, as a result of relocation with that parent, the child will suffer detriment rendering it '"essential or expedient for the welfare of the child that there be a change."'" ( Id. at p. 38.) After characterizing its analysis as consistent with the custodial parent's "presumptive 'right'" under section 7501, the Supreme Court stated the "dispositive issue is, accordingly, not whether relocating is itself 'essential or expedient' either for the welfare of the custodial parent or the child, but whether a change in custody is '"essential or expedient for the welfare of the child."'" (Burgess, at p. 38.)
In Burgess, supra, 13 Cal.4th 25, the Supreme Court observed that "the 'necessity' of relocating frequently has little, if any, substantive bearing on the suitability of a parent to retain the role of a custodial parent. A parent who has been the primary caretaker for minor children is ordinarily no less capable of maintaining the responsibilities and obligations of parenting simply by virtue of a reasonable decision to change his or her geographical location." ( Id. at p. 36.) However, the Supreme Court also recognized that an "obvious exception is a custodial parent's decision to relocate simply to frustrate the noncustodial parent's contact with the minor children. 'Conduct by a custodial parent designed to frustrate visitation and communication may be grounds for changing custody.' Even if the custodial parent is otherwise 'fit,' such bad faith conduct may be relevant to a determination of what permanent custody arrangement is in the minor children's best interest." (Ibid., fn. 6, )
In sum, in In re Marriage of Burgess, the Supreme Court discussed the trial court's authority to fashion visitation orders, stating "the trial court has broad discretion to modify orders concerning contact and visitation to minimize the minor children's loss of contact and visitation with the noncustodial parent in the event of a move, e.g., by increasing the amount of visitation with the noncustodial parent during vacations from school, allocating transportation expenses to the custodial parent, or requiring the custodial parent to provide transportation of the children to the noncustodial parent's home."
Although the quoted text in Burgess is phrased in the language of a "move-away" case, in which a parent who has sole physical custody under an existing judicial custody order seeks to relocate, the case actually involved an initial order of custody and visitation. (Burgess, at p. 37 & fn. 8.) Burgess discussed "move-away" cases in order to broadly clarify the law because "considerations and interests in both types of custody matters are closely interrelated." (Id. at p. 37, fn. 8.) Accordingly, Burgess does not suggest a court's authority to allocate transportation expenses is limited to "move away" cases. Neither does the decision suggest any such allocation must be made in the context of a child support order.
The Supreme Court emphasized that "the paramount need for continuity and stability in custody arrangements--and the harm that may result from disruption of established patterns of care and emotional bonds with the primary caretaker--weigh heavily in favor of maintaining ongoing custody arrangements." (Supra, 13 Cal.4th at pp. 32-33.)
In that case, the Supreme Court considered it "most important" that the mother was the primary caretaker and that the children had been in her sole physical custody for over a year. ( Id. at p. 32.)