In re Marriage of Brown & Yana

The mother, having been the custodial parent from the divorce until the child was 12, decided to relocate with her second husband, two other children and Cameron because the husband received a job offer in Nevada. The husband’s divorce lawyer 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 divorce court denied the father’s divorce lawyer’s request to restrain the relocation of their son.

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

On appeal, the Court in a split decision reversed the divorce court decision stating, “in a ‘move-away’ case, a parent without legal or physical custody is entitled to an evidentiary hearing.”

The California Supreme Court reviewed the case. First, the California Supreme Court determined that a parent without legal and physical custody has standing to seek and obtain a custody change if the custodial parent has decided to relocate with their child. The divorce lawyer representing the parent seeking a custody change must show that there has been a significant change in circumstances and that a different child 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 divorce court determines the change would be detrimental to the child’s rights or welfare. Thus a non-custodial parent may seek to modify the child 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 custody order 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 agreed with mother’s divorce attorney and 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 & Yana (2006) 37 Cal. 4th 947