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Jacob A. vs. C.H.:

It is not proper for a court to determine a custodial move-away request based on an assumption that denial would stop a custodial parent from moving.

 

California Court of Appeals; C064741; June 30, 2011

Jacob A. and C.H. ended their relationship in December, 2007. C.H. moved with their seven-year-old daughter, K.A., to Washington. In 2008, C.H. and her K.A. returned to California. When the pair returned, Jacob filed for custody. C.H. filed a request to move with K.A. to Washington. In that case, a court appointed mediator recommended the court deny C.H.’s request to move, but to grant her custody if she remained in California. The trial court adhered to the recommendations.

In 2009, C.H. made another request to move. The court appointed a mediator to determine K.A.’s best interest. At trial, C.H. offered testimony in support of her position that a move would be in K.A.’s best interest. The court-appointed mediator testified that she “had an impression” that C.H. would not move to Washington without her daughter.

The Judge concluded that that the move was not in K.H.’s best interest, stating that C.H. would not move away from her daughter absent court approval. The Court denied C.H.’s request, leaving a joint custody order in place. The court did not consider whether a move to Washington would be better for K.A. than staying with her father and visiting her mother in Washington. C.H. appealed the decision.

On appeal, the Justices reversed the decision of the trial court stating, “[t]he question for the trial court is not whether the parent may be permitted to move; the question is what arrangement for custody should be made [when the parent moves].” The trial court made their custody decision based on the premise that the refusal to allow C.H. to take the child to Washington would stop her from moving.

Instead, the court should have determined whether it was better for K.A. to move with her mom and have visitation with her dad or stay with her dad and have visitation in Washington with her mom. Accordingly, the appellate court remanded the case back to the trial level for a new custody determination based on the move.

What does this mean for your California custody case?

If you are petitioning to remove your child out of state, the court is not allowed to consider whether a denial of the request to remove the child will prohibit you from moving.

 

Terence Daniel Doyle, Esq. is the founder of the Family Law Group, Danville, California. Our vision brings together a team of highly experienced and distinguished family law attorneys all of whom deliver specialized knowledge, strategic insight and tactical planning.  Since 1984, we have dedicated ourselves to this mission.  We are very proud of our five attorneys and our talented support team which includes California State Bar Certified Family Law Specialists, brilliant staff attorneys, and committed and experienced Certified Paralegals and family law technical staff. At Doyle Golde Grossman, we practice our profession with integrity, strength and commitment to our clients.

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