San Diego County Move-Away Cases
F.T. vs. L.J. (2011) 194 Cal.App.4th 1
On April 6, 2011, the California Fourth Appellate District, Division One,
in a strongly (and painfully) worded opinion reversed a San Diego trial
judge's refusal to permit a father to relocate with the parties'
four-year old son to the State of Washington to join his new wife and
her family. While recognizing that the standard of appellate review of
trial court custody and visitation orders is the "deferential abuse
of discretion test," the appellate justices found that Superior Court
Judge Lisa C. Schall's decision was influenced by her misunderstanding
of the law applicable to several subjects, including move-away, and accordingly
that "a discretionary order based on the application of improper
criteria or incorrect legal assumptions is
not an exercised of
informed discretion and is subject to reversal even though there may be substantial
evidence to [otherwise] support that order." Traditionally most judges
have lived and ruled under the assumption that if it a decision is "discretionary"
their orders are impervious to reversal unless they almost shock the conscience
of the reviewing court. This is a big flag waving otherwise.
Following on the heels of
Duris & Urbany,
Irmo Tharp, and
Irmo Fong all within the past six months, it is clear that a movement is afoot among
the State's appellate courts to force family court trial judges to
expand their knowledge of family law beyond 'seat of the pants'
decisions. However, for the lawyers, therapists, psychologists, and family
court services folks who may read this Blog - beware: What is being demanded
from all of the [us] professionals is an entirely new level of knowledge
and expertise that is long overdue. In my opinion the appellate judges
are undertaking an admirable effort to triage and correct the very mistakes
that historically made family law - the one area that most law-abiding
citizens ever personally experience within our government sponsored legal
system - the under-appreciated step-child of the courts. Such a transformation
is vitally important to the rule of law, due process, the public's
perception of government and fairness, and the functioning of our ever-increasingly
complicated society and personal relationships.
It is time that judges, lawyers like me, mental health professionals,
and everybody else involved in the family law justice system increase
our commitment and expertise to serving the people - possibly such as
yourself - who are and will remain not only our reason for being, but
the source of our livelihoods.
Want to Understand the Move-Away Principles?
F.T. v. L.J. is an important opinion for move-away applicants and their attorneys not
just because it clarifies existing law and provides guidance on a host
of issues commonly encountered in litigation over these arguably unfortunate
situations, but it is going to be widely talked about by the mental health
community and will influence how
Evidence Code 730 and
Family Code section 3111 evaluators report to the courts because of this appellate court's
attention to the details for what various FCS ("family court service"
employees) and MHP's ("mental health professionals") opined.
It appears that some of them, including the court mediators, took their
eye off the ball as established by earlier legal precedent on this topic
and the information presented to them.
The parties in this case dated for five or six months and this brief time
together produced a bouncing baby boy in January, 2006. For the first
thirteen months of his life, the child lived with Mom. On February 17,
2007, however, Mother burned her baby's arm with a hot curling iron
"apparently to each him a lesson by showing him how hot it was."
Father picked the boy up that evening, saw the injury, and took him to
the hospital. Hospital staff called CPS and the police. Criminal charges
were filed against the mother.
The child was placed with Dad and Mother's visitations were ordered
supervised. Two weeks later he filed a petition to establish paternity
and an OSC requesting orders for sole legal and physical custody. The
parties were directed to attend custody mediation through Family Court
Services but were unable to reach agreement, and so the mediator recommended
that the child's primary residence be with Father and that Mother
have supervised visits. In April, 2007, the parents stipulated to the
recommended order "without prejudice to either party."
Five months later Father filed an OSC request seeking an order allowing
him to move with the child to Texas. The parties were ordered back into
mediation. At that time following a custody review hearing, the trial
court removed the supervision requirement for Mom's visitation. Once
again (surprise!) the parties could not agree in mediation, and the mediator
recommended that Father have primary physical custody and that he be allowed
to move, noting that in November, 2007, Mother had pleaded guilty to one
count of simple battery on the child and was given four years' probation,
and that she had an eleven year old child from a previous relationship
who lived with the paternal grandparents.
For unknown reasons Father's request went off calendar at the time
of the scheduled December, 2007, move-away hearing. In February, 2008,
he refiled his application and psychologist Yanon Volcani, PhD., was appointed
to conduct a psych evaluation of the parents and child. He issued a report
in September, 2008.
Volcani recommended against the Father's proposed move to Texas, believing
that it would interfere with this 2 1/2 year old's bonding with Mother
because of the distance (based upon current best mental health opinions
on the developmental stages of children). Volcani concluded that telephone,
webcam, and other means of contact would not be well suited for a child
this age, and had concerns whether Father would "enthusiastically"
support the child's relationship with his mother. He also felt that
mother had learned from her experience of burning the child, and while
her action was 'rash, impulsive, and insensitive' the data did
not suggest a "broader abusive intent." He recommended that
Mother's timeshare be incrementally expanded.
On September 18, 2008, the trial court adopted Volcani's proposed
parenting plan as a temporary order pending an evidentiary hearing, without
prejudice, based upon findings that this was in the best interests of
the minor. The matter was then lost in the limbo of hearing continuances
and further court services mediations ultimately until March 5, 2010.
By now Father was requesting permission to move to Washington instead
of Texas, and was intending on marrying a woman living there. Mother had
married. Lynn Waldman, a Family Court services counselor, reported to
the Court that she had learned that the minor child in 2009 began exhibiting
rage, temper tantrums, and other behavioral issues at school and that
this three year old was seeing a counselor who couldn't explain "where
[Child's] anger is coming from. She interviewed Dr. Volcani but developed
incorrect impressions about whether he'd last met with the parents
over the two ensuing years after his initial report, and other misconceptions.
She recommended against the move to Washington, but stated that Father
should remain in his role as the primary caregiver.
In February, 2010, Volcani issued a report supplementing his opinions
from September, 2008. Father by then had married his fiancé, who
herself had two teenagers. Volcani had re-interviewed the parents, the
new spouses, and the minor's preschool teacher and therapist. He noted
that since the initial evaluation that the parents had been co-parenting
in a "relatively cooperative and stable manner." The minor was
continuing to have rage issues (e.g., throwing a chair and punching another
student) but these were improving. Still, because of the child's age
it was difficult to know what was causing it.
On March 5, 2010, the trial court held a hearing but did not permit live
testimony and denied the Father's request to move. The court made
a number of findings which were not supported by the record. Chief among
them was the conclusion that the parents "are not communicating"
- when in fact Dr. Volcani actually stated otherwise and that their communications
had vastly improved over the two years that had passed. Moreover, without
any rational MHP support, the trial court concluded that the evidence
proved the child's rage, speaking out in his sleep, and bed wetting
all had to do with the parents' lack of a meaningful dialog. The court
stated it "feels that the anger is coming from the tension between
the two parties."
Maybe, but the court didn't pull this conclusion from any evidence
before it in terms of an expert assessment and conclusion that this was
the case (the child's own therapist couldn't explain the child's
behaviors). Some conclusions apparently exceed what common sense would
By the way, what is a three year old doing with a therapist?
Anyway, the Court adopted Volcani's conclusion that the child's
healthy development was being impeded, although on different grounds than
Volcani had expressed. The court concluded "Father's reasons
for the move, that is to join a new wife and family, are not sufficient
and a new wife and family in Washington is not a sufficiently necessary
reason to move the residence of [Child] to Washington...."
Moreover, the Court implied that if Father decided to move anyway that
the Court would take custody away from dad and give it to mother, a really
bad idea under existing caselaw because of its coercive overtones.
Enter the Established Law of Move-Away
This is what makes this case important - a judge that was justifiably bothered
by the impact that the relocation would have on the relationship between
a parent (mother) and child understandably struggled not to permit the
move. But she was wrong and the appellate court scolds her harshly for
it. Her decision was not an exercise of
At the same time, some of the Father's arguments were off-track as
well. For instance, he argued that he had a presumptive right to move
under authority of
Family Code section 7501 which states: "
A parent entitled to the custody of a child has a right to change the residence
of the child, subject to the power of the court to restrain a removal
that would prejudice the rights or welfare of the child." The Fourth
Appellate District ruled that 7501 only applies to "final" custody
determinations, and not those that are "temporary," following
the case of
Montenegro v. Diaz (2001) 26 Cal.4th 249. Here the parties had lived under a "stipulation"
for two years, but had never reduced it to a final agreement and no court
had ever ruled as to any contested matter within the context of an evidentiary
hearing. This is a rule that most family law attorneys already know well
(which is why the smart ones write their orders to declare the custody
agreements favoring their clients as "final" orders). The practical
effect of this fact in this case was that "Mother did not have an
initial burden to show [that] Child would suffer detriment were he to
move with Father to Washington."
Father also argued that because Mother had been convicted of battering
her son, a presumption arose under
Family Code section 3044 that she should not have custody of the boy that was possibly "conclusive"
if not merely rebuttable. While the idea that the presumption might be
conclusive based evidently upon the appalling seriousness of intentionally
burning a child is ... creative ... it doesn't track in the slightest
what California law says on the subject, and was quickly disposed of by
the appellate judges. The justices ruled that "[a] section 3044 finding
of domestic violence 'in a family law case changes the burden of persuasion
as to the best interests test, but it does not limit the evidence cognizable
by the court, and it does not eliminate the best interest requirement."
"Nor does the statute establish a presumption for or against joint
custody; again, the paramount factor is the child's health, safety
and welfare. And where the section 3044 presumption has been rebutted,
there is no statutory bar against an award of joint or sole custody to
a parent who was the subject of the order. This is particularly important
in move-away cases." In this case the trial court had not made any
express findings under section 3044 anyway, so on remand that is a subject
the court is directed to pick up.
However, what the trial court did wrong is this:
The father had no burden to prove his move was "necessary".
When the trial court opined that "Father's reasons for the move,
that is to join a new wife and family, are not sufficient and a new wife
and family in Washington is not a sufficiently necessary reason to move
the residence of [Child] to Washington...." it supplanted the rule
of law with an understandable discomfort with the effects the move would
have on Mom's relationship with her son. The issue instead was the
best interests of the child, and that decision must be considered in light
of the established rule that "the paramount need for continuity and
stability in custody arrangements - and the harm that may result from
established patterns of care and emotional bonds with the primary caretaker
[father here] - weigh heavily in favor of maintaining ongoing custody
Hence, Judge Schall's "order denying Father's motion reveals
a misunderstanding of the determination a trial court must make in deciding
a move-away motion by a custodial parent. In this case, the trial court,
in effect, avoided the ultimate question whether a change in custody would
be in Child's best interests were the custodial parent (Father) to
move to Washington.... The question ... is not whether the parent may be
permitted to move; the question is what arrangement for custody should be made [if
and when the custodial parent moves]." A custodial parent is
not required to show a planned relocation is necessary.
In other words, the trial court has to assume the plan for the proposed
move is a serious one, and has to address the issue of custody as though
the move will occur. Moreover, and this is the heart of the decision and
the basis for reversal, "[t]o the extent the trial court denied Father's
with the goal of maintaining the status quo and/or coercing Father to abandon
his plan to move to Washington, it erred." [Italics added].
Finally, while the effect of a move will naturally be detrimental to the
child's relationship with the remaining parent, this is but one factor
for the court to consider and cannot be the sole basis for denying a move.
The case of
Marriage of LaMusga (2004) 32 Cal.4th 1072 (hand's down the most important move-away case
to know), establishes a litany of factors for trial courts to consider
in their totality - which is the subject for another Blog.
This case is reversed and remanded to the trial court to evaluate all the
LaMusga factors and so exercise an informed discretion before summarily denying
Father's request to move.
Okay, sorry, I'm tired now - I'll be back to add some more thoughts!