A Non-Custodial Parent Has a “Very High” Burden When Seeking a Change in Child Custody and a Move Away

In this Orange County child custody case, mother and father had two boys and at the time of separation, mother lived in Wisconsin with the children while father was stationed in Hawaii on active military duty. The parties agreed to joint legal child custody in their marital settlement agreement filed with the Wisconsin court, but gave mother a majority of physical child custody due to father’s work schedule. Father was subsequently deployed to Iraq and Afghanistan which made communication as well as visitation with his children difficult.

Mother eventually moved to Orange County with the children to be with her fiancé. Mother received permission from the Wisconsin court for the move. Father was stationed in Alabama. The next year, father’s Orange County divorce lawyer filed a request for an order seeking either increased visitation time or primary physical child custody of the boys. Mother disagreed with father’s Orange County divorce attorney’s request citing serious disagreements between herself and the father as to decisions regarding the children.

At the hearing both parties testified to disagreements over a visitation schedule. Finding that the settlement agreement filed in Wisconsin was not final, the judge found father did not have to prove “changed circumstances” to justify a change in child custody. The court also found it was “father’s turn” to have the children. The judge then granted father primary child custody allowing him to move the children to Alabama, despite being in the middle of the school year.

Mother’s Orange County divorce lawyer filed a stay on the move-away orders and appealed the divorce court’s judgment. The Court of Appeal found the Orange County divorce court applied the incorrect burden and criteria and thus abused its discretion. The divorce court failed to apply the high burden imposed on a non-custodial parent (here Father), to address the disruptive impact of the out-of-state move-away and the children’s needs for stability and continuity. When requesting both a change in custody and a move-away, the burden for a noncustodial parent is “very high.” Here, father’s divorce attorney failed to meet his burden in showing the move was in the children’s best interest.

Jane J. v. Superior Court, 237 Cal. App. 4th 894 (2015)