Move-aways, also called relocation cases, occur when one parent wants to relocate to another location with the children of a marriage or prior relationship. In the Bay Area, a relocation can be a short distance; Marin County to Contra Costa County would be considered a move-away. Courts tend to favor parents living in close proximity of each other, and generally speaking, move-aways are disfavored. It is important to understand two landmark cases Marriage of Burgess and Marriage of LaMusga, when discussing move-aways.
Regardless of whether the move-away contest arises in an initial custody adjudication (as in Burgess) or a modification proceeding (as in LaMusga), once the parent contesting the move alleges detriment to the child from the proposed relocation, the trial court must consider all of the relevant factors in deciding whether a change in custody would be in the child’s best interest. Marriage of Burgess (1996) 13 C4th 25, 32, 51; Marriage of LaMusga (2004) 32 C4th 1072, 1094. (Codified public policy in Fam.C. Section 7501(a)(b).)
The LaMusga Court enumerated the following factors that should be considered when deciding whether to modify a custody order in light of the custodial parent’s proposal to change the residence of the child. Family law judges, guided by statute and the principles announced in Burgess and LaMusga, are free to exercise their discretion to fashion orders that best serve the interests of the child. In re Marriage of Burgess (1996) 13 Cal.4th 25; In re Marriage of LaMusga (2004) 32 Cal.4th 1072, 1101. The following are commonly referred to as “LaMusga Factors.”
1. The reason for the proposed move.
2. The child’s interest in stability and continuity in custodial arrangement.
3. The Distance of the Move.
4. The Age of the Child.
5. The Child’s Relationship with Both Parents.
6. The Relationship between the Parents (IE: how likely will the moving parent support a relationship with the parent left behind).
7. The Wishes of the child(ren).
8. The Extent to Which the Parents Currently are Sharing Custody.
Move-aways are typically binary matters, since it is unlikely one parent would agree to be separated from his or her children. As such, move-aways typically proceed to trial. If you are requesting or opposing a move-away, it is important to consult with Certified Family Law Specialist, experienced in litigating move-aways.
