Written by attorney Anthony Payman Azemika

A California Appellate Court has ruled that a father with custody should have been allowed to move.

A California Appellate Court has ruled that a Trial Court was wrong in denying Father's motion to move to Washington State with the parties' minor child because it unduly focused on the effect of the move on Mother, failed to apply the best-interests standard properly, made the finding regarding co-parenting unsupported by the evidence, and failed to consider Mother's prior domestic violence toward the child as required by California Family Code Section 3044. In the case of F.T. v. L.J., Mother gave birth to her and Father's son in January of 2006. On February 17, 2007, Mother burned the child's arm with curling iron in an apparent effort to deter the Child from touching a hot iron. When Father arrived to pick the Child up, he noticed the Child's burn and took Child to the hospital for treatment. After hospital worker notified Child Protective Serviced and police, those authorities advised Father to keep Child in his care and allow Mother only supervised visits. On February 28, 2007, Father filed a petition to establish his paternity of the Child and for sole legal and physical custody. Father followed that up with an Order to Show Cause, seeking sole legal and physical custody and supervised visits for Mother. Trial Court ordered parties to mediation and limited Mother to supervised visitation. When mediation produced no agreement, Family Court Services (FCS) counselor recommended that Father be granted legal custody of Child, that Child live primarily with Father, and that Mother have supervised visitation. In response to Father's paternity petition, Mother admitted Father's paternity, but sought sole legal and physical custody of Child. On April 23, 2007, Mother and Father stipulated to Trial Court's adopting FCS recommendation as its order without prejudice to either party, and to Mother's paying $740 per month to Father for child support. Trial Court then adopted their stipulation as its order. On September 14, 2007, Father filed an Order to Show Cause for an order permitting him to move with the Child to Texas, where his three children from prior marriage lived with their mother, he had extended family, and he expected to find more job opportunities and lower living costs. After Mother filed an opposition, Trial Court held a review hearing, modified visitation to give Mother unsupervised visits, and referred parties back to mediation. Mother and Father met with FCS counselor, but again were unable to agree. On November 7, 2007, FCS counselor filed a report, stating that on November 6, 2007, Mother had entered a guilty plea to one count of violating California Penal Code Sections 242, 243(a) [simple battery] and had been granted four year's probation. Counselor's report also mentioned that Mother's other child lived with paternal grandparents. The counselor recommended that Father and Child be allowed to move to Texas, noting that Father had been Child's primary caregiver since Mother had inflicted harm on Child, resulting in battery plea, and that giving custody to Mother was "not an option." The counselor further recommended that Mother and Father be given joint custody of Child, that Child would live with Father, and that Mother be granted additional unsupervised visitation before and after Child's move to Texas. In December of 2007, Father took his Order to Show Cause regarding his intended move off of the Trial Court's calendar, but re-filed it on February 5, 2008. After Mother filed her opposition, Trial Court appointed Psychologist to do a psychological evaluation of Mother, Father, and Child, and to issue a report of his findings. On September 12, 2008, Psychologist filed a report in which he made general findings that Child's bond with Mother would be detrimentally affected by the move, that Mother's actions in burning the Child were impulsive and profoundly insensitive, but not indicative of "broader abusive intent," and that the move to Texas would not be in Child's best interests. Psychologist recommended that Trial Court increase Mother's custodial time with Child. On September 18, 2008, Trial Court adopted Psychologist's recommendations as temporary order. After several continuances, Trial Court referred Mother and Father for further mediation and ordered Psychologist to prepare supplemental report to be delivered five days before mediation began. When Psychologist did not comply, FCS proceeded with mediation, noting that Father now wished to move with Child to Centralia, Washington, because he intended to marry a woman who lived there. FCS mediator received information regarding Child's improved behavior at school after Father began caring for him, Child's anger issues, and the effect of the move on Child's relationship with Mother. Mediator's report expressed doubt that Father would support that relationship, given communication difficulties between Mother and him, and advised postponing the move until Child was older. Mediator recommended that Father remain Child's primary caregiver and suggested possible timeshare if move took place. On February 22, 2009, Psychologist filed a supplemental report, stating that Mother and Father seemed better able to co-parent Child than before, Child's anger issues seemed improved, Child seemed bonded to both Father and Mother and her husband, and Child needed frequent and continuing contact with Mother, who appeared to be the parent better able to share. However, Psychologist declined to make a recommendation as to whether the move should take place, and would only recommend that joint custody be ordered. On March 5, 2010, Trial Court denied Father's move-away request and asked Father's attorney to prepare written order, subject to approval by Mother's attorney. On May 6, 2010, Trial Court issued a written order, finding that (a) Father was Child's primary caregiver; (b) best-interests standard applies in this case; (c) Psychologist's statement that Mother and Father were "co-parenting in a relative[ly] cooperative and stable manner" was "red flag that the parties are not communicating"; (d) the Child's anger was, in Trial Court's opinion, the result of tension between Mother and Father; (e) the Child was working hard to maintain relationships with both parties; (f) counseling for the Child should have started immediately after Mother burned the Child; (g) the Child's relationship with Mother and emotional development could be significantly eroded by the move; and (h) Father's reasons for the move (new wife and family) are not sufficient to justify the move. Trial Court stated that it had not been told that Father would move if his request was denied; thus, he should notify Trial Court if that is his intention, at which time Trial Court will determine whether custody change is needed. Concluding that the move was not in the Child's best interests, Trial Court denied Father's request. Claiming that the Trial Court failed to apply proper standard for a move-away case and for ignoring Mother's criminal conviction, Father appealed, and a California Court of Appeal has now reversed the Trial Court's decision and has remanded the case back to Trial Court. The Appellate Court has ruled that (1) California Family Code Section 7501 does not apply because there was no existing final judicial custody determination and Mother does not have the initial burden of showing that the move would be detrimental to Child; (2) Trial Court misunderstood the proper legal standard to be applied in move-away cases because it (a) declined to consider whether the move was in Child's best interests until it was informed that Father would move even if the Trial Court denied his request (no coercive orders), (b) based its order partly on determination that Father's reasons for the move were insufficient, and (c) gave undue emphasis to the effect of the move on the Child's relationship with Mother; (3) Trial Court's finding that cooperative and stable co-parenting raised red flag is not supported by evidence; and (4) Trial Court failed to make specific finding regarding the application of California Family Code Section 3044 [rebuttable presumption that custody award to party who has harmed child is detrimental to child's best interests]. Appellate Court holds that Trial Court abused its discretion by failing to apply proper standard and denying Father's move-away request. Therefore, Appellate Court has reversed and remanded the case back to Trial Court to reconsider Father's request and to make specific findings regarding the application of California Family Code Section 3044 to these facts.

Additional resources provided by the author

Free Q&A with lawyers in your area

Avvo child custody email series

Can’t find what you’re looking for?

Post a free question on our public forum.

Ask a Question

- or -

Search for lawyers by reviews and ratings.

Find a Lawyer