Custodial Parent Does Not Have to Show the Move is Necessary

Mother and father agreed that mother would have sole physical child custody of the children.  The father had liberal visitation.  The mother, who was the primary caretaker, wanted to re-locate 40 miles away for a career opportunity. The father retained a divorce lawyer to oppose the move and seek primary custody.  The divorce court found in favor of the mother, finding that the move would be in the best interests of the children.  However, the father’s divorce lawyer filed an Appeal and the appeals court reversed the divorce court’s decision on the grounds that the mother failed to prove the move was “reasonably necessary.”

The Supreme Court found in favor of the mother’s divorce attorney and held that it was in the children’s best interest to remain in the mother’s custody, permitting her to relocate.  The Court emphasized the presumptive right of the custodial parent to change the residence of a minor child so long as the move would not be prejudicial to the rights or welfare of the child.  The Court agreed with mother’s divorce lawyer and found that the mother’s reason to move was primarily for employment and not to frustrate the father’s visitation rights.  Additionally, the move would benefit the children because they would have more access to extra-curricular activities, health care and parental interaction due to the reduced commute.  Furthermore, the father admitted that the 40-mile drive was an “easy commute” that he regularly traveled.

The Court explained that a custodial parent seeking to relocate has no burden to show the move is “necessary.”  Thus an existing child custody order will remain unaltered unless a significant change in circumstances indicates that a different arrangement would be in the child’s best interest.  The change of circumstances must be substantial such that, as a result of the relocation, the child will suffer detriment rendering it essential or expedient for the welfare of the child that there be a change.  The issue is whether a change in custody to the non-moving parent is essential, expedient, or imperative for the welfare of a child.  Such a finding is required for the court to order a change in custody based on a custodial parent’s decision to relocation.

In re Marriage of Burgess (1996) 13 Cal.4th 25