The Burden on a Non-Custodial Parent to Prevent a Move Away is to Show that the Move Would be Detrimental to the Child

For a non-custodial parent who seeks to prevent the custodial parent from moving the child out of state to obtain a hearing contesting the move, the non-custodial parent must show specific harm to the interests of the child, not just difficulty in visiting the child or generalized harm occurring in the state where the move will occur.

A mother who received sole legal and physical custody of her son, Cameron, in the divorce judgment wanted to move to Nevada and relocate the son's residence. The father, who was the non-custodial parent, opposed the move to another state and asked the court to hold a hearing to re-evaluate the custody order.

The mother, decided to attempt to relocate with her second husband, two other children and Cameron, age 12, because her new husband received a job offer in Nevada. The father attempted to prevent them from moving away on the basis that it would cause detriment to Cameron because Nevada had poor education and high crime rates in general. The trial court denied the father's request to restrain the relocation of their son.

At the hearing, the father argued that moving Cameron should be prevented from "if it would prejudice the rights or the welfare of the child." However, the father was only prepared to offer evidence about poor education and high crime rates in Nevada, generally. The trial court denied the father's request, stating that given there was a final custody order in place the father was required to assert specific detriment to the child because of the move. The detriment has to be more than showing a child will be disoriented by the move. The trial court granted the father a hearing on visitation and established a modified visitation schedule but did not grant the father a hearing on custody itself because he failed to show a non-abstract detriment.

On appeal, the court reversed the trial court decision stating, "in a 'move-away' case, a parent without legal or physical custody has standing to seek and obtain a custody change if the custodial parent has decided to relocate with their child.The parent seeking a custody change must show that there has been a significant change in circumstances and that a different custody arrangement would be in the best interest of the child. The court further explained that the custodial parent's right to relocate the child may be restrained if a court determines the change would be detrimental to the child's rights or welfare. Thus a non-custodial parent may seek to modify the custody order if they can show the intended move would cause detriment to the child's well being.

Second, the California Supreme Court determined that if a parent seeking to change a child's residence does not establish that the intended move will cause specific detriment to the child then they are not entitled to an evidentiary hearing. Ultimately the Court found the father did not show sufficient detriment to warrant a hearing and the mother was permitted to relocate the child to Nevada.

In Re: Marriage of Brown and Yana (2006) 37 Cal. 4th 947