In re Marriage of LaMusga

In In re Marriage of LaMusga (2004) 32 Cal.4th 1072, the court clarified factors the trial court should consider when determining the best interests of a child in move-away cases: the child's "interest in stability and continuity in the custodial arrangement; the distance of the move; the age of the child; the child'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 child above their individual interests; the wishes of the child if he or she is 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." In In re Marriage of LaMusga, supra, 32 Cal.4th at page 1098 the court warned that "a court must not issue such a conditional order transferring custody if the custodial parent relocates for the purpose of coercing the custodial parent into abandoning plans to relocate. Nor should a court issue such an order expecting that the order will not take effect because the custodial parent will choose not to relocate rather than lose primary physical custody of the children." In LaMusga, the court explained, "The mother's past conduct indicated that it was unlikely that she would follow through on her promises to encourage the children's relationship with their father if they moved to Ohio. Her doctor testified that 'there is no evidence that I've seen in the five years that I've known this family that the mother will really do what she said she will do. In terms of being supportive of the boys' relationship with their father in a way that truly will reduce the loyalty conflicts and truly will help them . . . feel better about things with him.'" (Id. at p. 1094.) In In re Marriage of LaMusga (2004) the trial court had ordered a change in primary custody from the mother to the father upon the mother's request to move the children to Ohio. (Id. at pp. 1093-1095.) The Court of Appeal reversed the trial court's order, essentially concluding that the trial court had not applied the presumption that a parent who has primary custody has the right to change the residence of the child, and that the court had not taken into account the "paramount need for stability and continuity in the existing custodial arrangement." (Id. at p. 1093.) The Supreme Court rejected the appellate court's analysis, and determined that the trial court had acted well within its discretion in ordering a change of custody. The Supreme Court based its decision in significant part on the detriment to the relationship between the children and their noncustodial father that the proposed move would have caused. (Id. at p. 1095.) In the case where a noncustodial parent makes the required initial showing of detriment, the trial court must proceed to the second part of the analysis, "performing the delicate and difficult task of determining whether a change in custody is in the best interests" of the child. (LaMusga, supra, 32 Cal.4th at p. 1078.) "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." (Id. at p. 1101.) LaMusga does not require that a court make specific findings as to the enunciated factors. Rather, LaMusga requires only that the trial court consider the factors that the court deemed relevant to a determination as to the child's best interests. (LaMusga, supra, 32 Cal.4th 1101 "Among the factors that the court ordinarily should consider when deciding whether to modify a custody order in light of a custodial parent's proposal to change the residence of the child are . . . .".) The Supreme Court recognized the noncustodial parent who seeks the change in primary physical custody bears the initial burden of proof regarding the proposed move away. The custodial parent in LaMusga wanted to move the children away from their existing home in California to Ohio. To prevent the move away and keep the children in California, the noncustodial parent requested a transfer of physical custody. Since the noncustodial parent bore the initial burden of showing detriment, the Supreme Court obliged him to prove detriment to the children from the planned move. The Supreme Court affirmed the custody change order precisely because the noncustodial parent met his initial burden "'that a relocation of the children out of the State of California, the distance of 2000 miles is--would inevitably under these circumstances be detrimental to their welfare.'" (LaMusga, supra, 32 Cal.4th at p. 1085.) The family court "placed 'primary importance' on the effect the proposed move would have on 'what is now a tenuous and somewhat detached relationship with the boys and their father,' concluding that the proposed move would be 'extremely detrimental' to the children's welfare because it would disrupt the progress being made by the children's therapist in promoting this relationship." (LaMusga, supra, 32 Cal.4th at p. 1093.) The Court of Appeal concluded that the family court abused its discretion because it did not take into account the "'paramount need for stability and continuity in the existing custodial arrangement. Instead, it placed undue emphasis on the detriment that would be caused to the children's relationship with Father if they moved.'" (Id. at p. 1086.) Our high court disagreed with the Court of Appeal as there was "nothing in the record ... that indicated that the superior court failed to consider the children's 'interest in stable custodial and emotional ties' with their mother." (Id. at p. 1093.) The Court stated that "A parent entitled to the custody of a child has a 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." ( 7501, subd. (a).) Accordingly, when a custodial parent proposes to relocate a child, "the noncustodial parent has the burden of showing that the planned move will cause detriment to the child in order for the court to reevaluate an existing custody order." (LaMusga, supra, 32 Cal.4th at p. 1096.) "The extent to which a proposed move will detrimentally impact a child varies greatly depending upon the circumstances. We will generally leave it to the superior court to assess that impact in light of the other relevant factors in determining what is in the best interests of the child." (Id. at p. 1097.) If the noncustodial parent carries the threshold burden of showing that the planned move would cause detriment to the child, the "court must perform the delicate and difficult task of determining whether a change in custody is in the best interests of the child." (Id. at p. 1078.) As the LaMusga court stated, "This area of law is not amenable to inflexible rules." (LaMusga, supra, 32 Cal.4th at p. 1101.) Rather, courts must "exercise their discretion to fashion orders that best serve the interests of the children in the cases before them. 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." (Ibid.) In In re Marriage of LaMusga (2004) 32 Cal.4th 1072, the Supreme Court recognized the noncustodial parent who seeks the change in primary physical custody bears the initial burden of proof regarding the proposed move-away. The custodial parent in LaMusga wanted to move the children away from their existing home in California to Ohio. To prevent the move-away and keep the children in California, the noncustodial parent requested a transfer of physical custody. Since the noncustodial parent bore the initial burden of showing detriment, the Supreme Court obliged him to prove detriment to the children from the planned move. The Supreme Court affirmed the custody change order precisely because the noncustodial parent met his initial burden "that a relocation of the children out of the State of California, the distance of 2000 miles is--would inevitably under these circumstances be detrimental to their welfare." (LaMusga, supra, 32 Cal.4th at p. 1085.) The court found that an "'Order After Hearing,' granting joint legal custody to the parties and primary physical custody to the mother, constituted a final judicial custody determination that the court need not reconsider in the absence of changed circumstances." (Ibid.) There need not be an express indication that a court order is intended to be final for it to fall under the changed circumstances rule. (See LaMusga, supra, 32 Cal.4th at p. 1089, fn. 2.) A child custody determination is conclusive with respect to all persons who have had an opportunity to be heard as to all decided issues of law and fact. (Fam. Code, 3406.) A trial court's decision to revisit the issue of visitation does not affect the finality of the original custody determination. (See LaMusga, supra, 32 Cal.4th at pp. 1088, 1089, fn. 2.) While the trial court must consider the best interests of the child when making its decision, there is no requirement that final custody and visitation orders contain a statement that the custody arrangement is in the best interests of the child. ( 3011, 3048, subd. (a).)