In Re Marriage of Burgess

N/A

OUTCOME: Reversed Court of Appeals Ruling

An order of dissolution of marriage provided for shared joint legal custody by both parents of their two children, with sole physical custody in the mother and a visitation schedule for the father, pur ... suant to a mediated temporary agreement. When the mother announced her intention to move with the children to a new city 40 miles from their current home, where she had a new job, the father sought permanent physical custody of the children. The trial court ruled that it was in the best interest of the children that they be permitted to move with the mother and that the father be afforded liberal reasonable visitation, and entered judgment for the mother accordingly. (Superior Court of Kern County, No. 541582, Gary T. Friedman, Judge.) The Court of Appeal, Fifth Dist., Nos. F020504 and F021744, reversed, concluding that the mother had not shown that the move was “reasonably necessary.” The Supreme Court reversed the judgment of the Court of Appeal. The court held that the trial court did not err in concluding that it was in the best interest of the children that they move with their mother. First, and most important, although the children saw their father regularly, their mother was, by parental stipulation and as a factual matter, their primary caretaker. Furthermore, from the outset, the mother had expressed her intention to relocate for employment-related reasons; the mother evinced no intention to frustrate the father's contact with the children. Moreover, despite the fact that the move was for the mother's “convenience,” her proximity to her place of employment and to the children during the workday would clearly benefit the children as well. In addition, the father would be able to visit the children regularly and often. The court further clarified that a parent seeking to relocate with minor children bears no burden of establishing that the move is “necessary” either in the initial judicial custody determination, or in a proceeding for modification of a permanent custody order based on changed circumstances. A trial court adequately satisfies the policy under Fam. Code, § 3020, in favor of “frequent and continuing contact” by ordering liberal visitation with the noncustodial parent if the custodial parent relocates. (Opinion by Mosk, J., with Lucas, C. J., Kennard, George, Werdegar and Chin, JJ., concurring. Concurring and dissenting opinion by Baxter, J.)