Final Child Custody Orders may be Modified Only if a Substantial Change of Circumstances is Demonstrated

The parties shared joint legal custody of their two sons, with the mother having primary physical custody. The mother, wanting to relocate to Ohio with her sons, retained a divorce lawyer to file a request to modify the visitation order to permit her to move away. The divorce court found that the move would be likely to severely impact the children’s relationship with their father, the noncustodial parent, and based on the mother’s previous behavior she would be unsupportive of the father’s relationship with the children. The divorce court ordered physical custody of the children to be granted to the father if the mother moves to Ohio. The mother’s divorce attorney appealed, and the appellate court awarded mother custody based on finding that the divorce court abused their discretion. The Supreme Court agreed with father’s divorce lawyer and reversed and found in favor of the father, and ordered the court to grant physical custody to the father, if the mother chooses to relocate to Ohio.

A custodial parent who wishes to relocate has no burden to demonstrate the move is “necessary” but instead a good faith showing for the basis of relocation. The parent with primary physical custody has a presumptive right to change the children’s physical residence. For a change in custody to be granted on the basis that a custodial parent is moving the residence of a child, the divorce lawyer representing a noncustodial parent has the burden to show a significant change in circumstances that would indicate a different arrangement would be in the best interests of the child. The divorce attorney representing the noncustodial parent must show the move would cause a child detriment, rendering it “essential or expedient for the welfare of the child that there be a change.” The divorce court must always consider whether the custodial parent is acting in bad faith and whether moving the child is an effort to frustrate the noncustodial parent’s relationship. The court must determine whether the best interest of the children are best served by relocating with mother to Ohio, or changing the physical custody to father, in light of all of the circumstances.

In determining whether to modify a custody order, based on a custodial parent’s desire to change the residence of a child the court must consider the following: “the children’s interest in stability and continuity in the custodial arrangement; the distance of the move’ the age of the children; the children’s relationship with both parents, the relationship between the parents including, but not limited to, their ability to communicate and cooperate effectively and their willingness to put the interests of the children above their individual interests; the wishes of the children if they are mature enough for such an inquiry to be appropriate the reasons for the proposed move; the extent to which the parents currently are sharing custody.” The Supreme Court agreed with father’s divorce lawyer and determined the divorce court did not abuse its discretion and that the best interests of the children would be served by granting custody to father, if mother were to relocate to Ohio.

In re Marriage of LaMusga (2004) 32 Cal. 4th 1072