Move Aways and California Family Law

move aways

Move aways are among the most emotionally and legally complex issues that commonly arise in a divorce setting. Often one party needs to move for her own peace of mind, to be with relatives and family, to be with a new spouse, or to obtain a new job. In any case, the parent who is left behind can be devastated as visitation is no longer plentiful. Moreover, studies have shown that move aways often detrimentally affect the children.

The courts must balance the right of the custodial parent to have freedom of travel versus the right of the non-custodial parent to parent. This balance has been struck sometimes onthe side of the moving parent and sometimes on the side of the remaining parent. Shifting views in society have resulted in a variety of court decisions that have set different standards at different times.

In 1992, the courts struck the balance on the side of the remainor with the case of In RE Marriage of McGinnis. In this case, the court stated that the move must be for an "imperative and essential reason."

However, the California Supreme Court struck a different balance in the 1996 case In RE Marriage of Burgess. The court made it much easier to move away by eliminating the "imperative and essential" language and replacing it with a simple best interest analysis.

Since Burgess there have been numerous cases refining the meaning of Burgess including Cassady v. Signorelli (1996), Marriage of Whealon (1997), In RE Marriage of Condon (1998), Marriage of Edlund and Hales (1998), Marriage of Bryant (2001), Marriage of Williams (2001), Marriage of Laswich (2002), Marriage of Abrams (2003), Marriage of Campos (2003), and Marriage of Abargil (2003).

In the spring of 2004, family law judges and attorneys eagerly awaited the California State Supreme Court's ruling in In RE Marriage of Lamusga. Experts predicted that the court would modify Burgess and return to a more restrictive move away standard.

Instead, the court affirmed the Burgess decision and clarified a number of issues. The mother in the Lamusga case asked the court's permission to move to Cleveland with the couple's two sons. The Superior Court denied the request and the Court of Appeal reversed. The California Supreme Court then reversed the Court of Appeals restoring the Superior Court's ruling. The Supreme Court provided a list of factors that should be considered in a move away case.

Move away litigation is very complex and should only be attempted by an expert child custody attorney. If you are thinking of representing yourself in a move away case, think again!

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