”Move Away” Orders California

In In re Marriage of Burgess (1996) 13 Cal. 4th 25, the Supreme Court discussed the so-called "move-away" orders.

As in all cases where an initial custody determination is at issue, the trial court has " 'the widest discretion to choose a parenting plan that is in the best interest of the child.' " (Id. at p. 31.)

This requires the court to consider all the circumstances. (Id. at pp. 31-32.) Among the circumstances the trial court must consider are the presumptive right of a custodial parent to change the residence of the minor children and the effect of such relocation on the children's rights and welfare. (Id. at p. 32.)

Neither party has the burden of persuasion to justify a choice of residence as a condition of custody. ( Id. at p. 34, 51 Cal. Rptr. 2d 444, 913 P.2d 473.) In In re Marriage of Burgess, (Cal. 1996) the California Supreme Court also modified its prior approach of requiring a custodial parent to prove that relocation was "necessary" before permitting the move. Burgess, 913 P.2d at 480-81.

The court concluded that the necessity of relocating "has little, if any, substantive bearing on the suitability of a parent to retain the role of a custodial parent." Id.

Moreover, the court noted that given that both parents may need to secure or retain employment or pursue educational or career opportunities, "it is unrealistic to assume that divorced parents will permanently remain in the same location after dissolution or to exert pressure on them to do so." Id. at 480-81.

Of paramount concern in the best-interest analysis, however, was the need for continuity and stability in custody arrangements. Id. Like Texas, the California Family Code pronounced a public policy in favor of "frequent and continuing contact" between the parents and children. Id. at 480 (quoting CAL. FAM. CODE § 3020); see TEX. FAM. CODE § 153.001(a)(1).

The court in Burgess held "the policy of Family Code section 3020 in favor of 'frequent and continuing contact' does not so constrain the trial court's broad discretion to determine, in light of all the circumstances, what custody arrangements serve the 'best interest' of minor children." Burgess, 913 P.2d at 480.

And, as did the courts in Baures and Tropea, the court pointed out that "bright line rules in this area are inappropriate: each case must be evaluated on its own unique facts," and identified factors to consider, such as the nature of the child's existing contact with both parents, the child's age, community ties, and health and educational needs. Id. at 483.