Divorce Courts Cannot Make Decisions Relative to Move Away Cases Based on the Relative Incomes of the Parties

A mother and father shared joint legal child custody of their son, but agreed that the mother would have physical child custody and the father would have visitation rights. The parties had lived in Ventura County when the divorce judgment was entered. Mother later accepted a job in San Mateo County in Northern California and relocated with their son. The visitation schedule caused the son to spend three weeks in one school with his mother, and one week per month in a different school when visiting his father. Mother’s divorce lawyer’s sought to modify the visitation order so that it would not conflict with the son’s attendance in school.

The divorce court required the parties to meet with a court mediator. Father’s divorce lawyer’s filed a declaration stating the best arrangement for their son was for Mother to move back to Ventura County. The family law mediator recommended to the divorce court, that mother be required to move back to Ventura County because father was more financially stable and had a long-term business in Ventura. The divorce court ordered the son’s residence to be in Ventura County despite acknowledging the order would force mother to relocate or give up physical child custody of her son. The mother’s divorce attorney filed a timely appeal.

Upon review, the Court of Appeal found the divorce court had abused its discretion by relying on father’s superior economic position in relation to mother’s. A divorce court may not order a custodial parent to relocate because of the relative economic position in comparison to the noncustodial parent. Further, California divorce courts have only restricted a custodial parent’s choice of residence where the custodial parent was motivated by preventing the noncustodial parent’s visitation. The Appellate Court agreed with mother’s divorce  lawyer and reversed the divorce court’s decision and did not force mother to relocate with their son.

In re Marriage of Fingert (1990) 221 Cal.App.3d 221