Parents Cannot Prevent the Divorce Court from Allowing a Custodial Parent to Relocate with a Child

A divorce court’s child custody order granted the parents joint legal child custody of their children. The mother being the custodial parent with physical child custody and the father having substantial visitation. The parties had previously agreed to a move away provision that stated, “the children’s place of residence could not be moved from Sacramento County ‘without the written consent of both parties or until further order of the Court.’” Mother, wanting to move to the San Francisco Bay Area to live with her fiancé, and care for her aging father, retained a divorce lawyer to file a petition for modification of visitation because she needed a court order or the father’s consent to move the children’s residence. The divorce court appointed a mediator and decided that if the mother was to relocate to San Francisco, physical child custody would be granted to the father but if she chose to remain in Sacramento she would retain physical child custody. The divorce court allowed the mother to move to San Ramon and retain child custody, as well as ordered the father pay for the mother’s divorce lawyer’s fees.

The father’s divorce lawyer appealed the decision and argued, mother had the burden to show that relocation of the children was in their best interests and would not be detrimental to their wellbeing. The court disagreed and explained that mother had the affirmative burden to show she had a good faith reason for moving the children’s residence and was not doing so to frustrate the father’s visitation. If the burden was met, then father’s divorce lawyer would have to show that the relocation would be detrimental to the children’s welfare and a change of child custody was essential or expedient. Once a divorce court establishes a custodial arrangement is in the best interest of the children the arrangement will be preserved unless there is a significant change in circumstances that shows a different arrangement is necessary. Further, the court stated the move-away provision did not change this burden and all applicable laws that were in existence at the time of the agreement are considered part of the contract between mother and father.

The court had determined that mother’s divorce attorney had met her burden of showing a good faith reason for her desired move and allowed her to retain child custody of the children and relocate to San Ramon for employment reasons. Additionally, the court remanded the decision to the divorce court to award mother’s attorney’s fees and declined to award mother attorney’s fees for the appeal. Thus, an order that requires consent for a move away does not prevent the divorce court from applying applicable laws relative to a move away.

In re Marriage of Abrams (2003) 105 Cal. App 4th 979