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Court Applied Wrong Standard in Move-away Case

Posted By Azemika   |   Comments (0)
Child Custody & Visitation,



California Fourth District Court of Appeals has ruled that a Trial Court failed to apply the correct standard in denying Mother’s request to move with the parties’ Child to Minnesota because it determined Child’s best interests based on the assumption that the denial would preclude Mother’s move, instead of assuming that Mother would move and determining the custody arrangement that would be in Child’s best interests in that event. In the case of Mark T. vs. Jamie Z., Mother and Father were dating when Mother became pregnant with Father’s Child. They lived together during Mother’s pregnancy. After their Child was born in December of 2007, their relationship faltered. Father moved out in May of 2008.

In July of 2008, Father filed a petition to establish his paternity of Child and sought joint legal and physical custody. Father also filed an Order to Show Cause regarding child support and attorney’s fees. When meetings with Family Court Services (FCS) failed to produce a custody agreement, Trial Court made temporary custody orders based on FCS’s report. On November 10, 2008, Trial Court made an order permitting Father to have an overnight visitation with Child after Child was one year old, and additional orders regarding child support and unreimbursed expenses, but continued the other issues to February 2009.

In December of 2008, Father filed another Order to Show Cause, seeking child support modification because he’d been laid off. Ten days later, Mother filed her own Order to Show Cause, seeking an order permitting her to move with Child to Minnesota, where she would have family financial support. Mother asserted that she had been unable to find a job in San Diego, despite months of searching, and had been forced to borrow money from her family and to seek emergency aid. Mother also said that her family would assist her with child care while she returned to school part-time and pursued unpaid internship, and that Minnesota had significantly lower cost of living.

On January 20, 2009, Father filed an Order to Show Cause, seeking legal and physical custody of Child. On February 2, 2009, Mother and Father stipulated to undergo psychological evaluation with Evaluator. After they also stipulated to Father’s paternity, Trial Court entered an order establishing his paternity and reserved jurisdiction over the remaining custody and support issues. In April of 2009, Mother and Father stipulated that Child’s primary residence would be with Mother, and Father would have visitation according to schedule. Trial Court memorialized that stipulation in a Findings and Order After Hearing filed on June 16, 2009.

In a report after the psych evaluation, Evaluator stated that each parent loved Child, who was "alert and engaging child" with "excellent temperament." Evaluator opined that Mother’s having support of extended family was no substitute for Child’s having regular contact with "loving and capable father," which Father could not be with Child in Minnesota. Evaluator believed that Mother should be Child’s primary caretaker until Child reached age five, but Father’s timeshare should be gradually increased to 50-50 split. Evaluator concluded that Child should not be moved from San Diego County.

During three days of trial between October of 2009, and November of 2009, FCS mediator recommended that Trial Court grant Mother’s move-away request because Mother was unable to find a job and "was living in poverty." Evaluator testified in accordance with the report, adding that Mother did not appear to have bad-faith motive for moving. Trial Court issued a tentative decision, expressing intent to deny Mother’s request, setting Father’s timeshare at 33%, and awarding Mother $5,000 for attorney’s fees and costs. In its final statement of decision, Trial Court found that Child needed stability of both parents, could not maintain bond with Father if move was approved, and was too young to be moved. Trial Court termed Mother’s reasons for moving "suspect" and was skeptical about Mother’s failure to find work, telling Mother to "change her approach" and not to tell prospective employers that she had previously been fired. Trial Court also said that the support of Mother’s family should not substitute for the bond between Father and Child. Concluding that the move would have "long term detrimental impact" on Child’s relationship with Father, Trial Court denied Mother’s request. In the subsequent Findings and Order After Hearing, Trial Court set up a visitation schedule for Father, continued Mother’s primary physical custody of Child, and made other orders regarding vacations, holidays, child support, and attorney’s fees.

Mother appealed Trial Court’s decisions, and now the California Fourth District Court of Appeals has reversed the Trial Court’s decisions and has remanded the case back to Trial Court. The Appellate Court has ruled that (1) when faced with a move-away request, Trial Court must decide custody based on the assumption that the move will take place and determine what custody arrangement is in child’s best interest if the move occurs; (2) Trial Court applied incorrect legal standard in ruling on Mother’s move-away request because it based its order on the assumption that Mother would not move if Trial Court denied her request; (3) Trial Court’s order was impermissibly coercive; (4) Evaluator’s report failed to address what proper parenting plan would be if Mother moved and Trial Court erred by adopting Evaluator’s recommendations; (5) Father’s attorney should not have been allowed to question Mother regarding whether she would move without Child; and (6) improper motive for the move is only one factor for Trial Court to consider and not automatic grounds for custody change. The Appellate Court further ruled that Trial Court abused its discretion by failing to apply the proper legal standard for making move-away orders. Therefore, the Appellate Court has reversed and remanded the case back to Trial Court for new custody and visitation orders based on the assumption that Mother would move.