Parental Relocations and Move-Away Cases
In response to a recent article I posted about the case of
F.T. vs. L.J., the mother of the Mother in
Mark T. vs. Jaime Z. submitted a comment about a new reversal of a case involving Judge Lisa
C. Schall, in San Diego, on this Blog - for which I thanked her. I am
grateful that family law litigants in these published appeals are increasingly
airing their side of the experience here, and I invite you to as well!
The decision in her daughter's case was published on Friday, last
week, so I now understand what the maternal grandmother, "Shelly,"
My sense is that appellate courts are expecting more out of trial judges,
like never before, and lawyers too, to be sure, and therapists and court
services personnel and litigants themselves! An interesting footnote is
that the father's attorneys in this case were certified family law
specialists, and (presumably) local San Diego heavyweights, and the mother
represented herself and yet succeeded "against all odds." Is
this an Elkins Aftermath, leveling the playing field for unrepresented
parties against experienced adversaries?
Mark T. and Jamie Z. (2011) 194 Cal.App.4th 1115
Mark T. v. Jamie Z. certified for publication on April 28, 2011 by the Fourth Appellate District,
a San Diego trial court was again reversed in a move-away case where she
effectively refused to permit a custodial parent to move out of state
without addressing what custody orders should issue if the parent did
move. In F.T. vs. L.J. it was the Father who wanted to relocate - here
it was the Mother but in both cases it was the same judicial officer.
Judge Lisa C. Schall doesn't like move-aways, it appears. These applications
challenge the non-moving parent and can negatively impact a child's
access to that parent, and disrupt parent-child bonding, if a holistic
parenting plan under the move-away regime is not developed.
Judge Schall bears the indignity of being reversed twice now in less than
30 days in a reported appellate decision - quite a scolding. Family law
is damned tough for judicial officers, who are doing their best to protect
children and weigh in consistently with the cutting edge policies of current
mental health science as well as their in-house (FCS) advisors. The problem
at present is that the opinions of MHP's (mental health providers),
and the wisdom of the reviewing courts, are in conflict. The science of
move-away as it affects families from the MHP perspective is still developing,
and it collides with certain cherished assumptions the law makes about
the rights of Americans, and specifically parents in California under
our current statutory scheme (see Family Code section 7501 and the
Burgess case) to move freely.
In both cases Judge Schall accepted (mostly) the independent opinions of
outside, court-appointed, mental health forensics and ignored the opinions
of the Family Court Services mediator - here the very same Lynne Waldman
who made recommendations in the F.T. case.
FCS mediator Waldman's belief was that Jamie's move away request
should be granted, noting that Jamie had been L.'s primary caretaker
since his birth, that Jamie had been unable to find a job in San Diego
and was "living in poverty," and that Jamie appeared "to
have a clear plan for the move."
Judge Schall now has two strikes against her for using judicial body language
to create a result that she felt was fair and appropriate, and her findings
on the record illustrate her dilemma. I'm reminded of my early youth
playing pool (not so much) and hoping if I twisted my body hard enough,
the ball would fall in the pocket. Most of us are doing the best we can.
Trial judges, however, have a script they must follow.
In effect, Judge Schall's mistake was to refuse to permit a move-away
by a Mom with a 22 month old child who had indeed been the child's
"primary caretaker since birth." By effectively coercing Mom
not to move by denying her move-away request, and by ignoring the question
of "in whose custody" the child's best interests were served"
or what arrangement should be imposed were Mom to move, Judge Schall committed
reversible error. The justices ruled:
"The court must decide de novo what physical custody arrangement would
be in the child's best interests, assuming that the requesting parent will relocate
." Therapist Dr. Lori Love (we can't invent this name stuff) was
appointed to evaluate the family for the Court and opined that
"[t]his examiner understands the importance of having extended family
around for support however this cannot be justified as being in [L.'s]
best interest[s] when it means removing him from a loving and capable
father. Jamie stated that she did not have an active father in her life
and very much wants that to happen for [L.] It would be virtually impossible
for Mark to be an active father from across the country." Dr. Love
urged the child was too young for the move and went on to recommend that
Mom not "be permitted to move out of the County of San Diego. At
the same time, this forensic therapist was unwilling to recommend a primary
change in custody and assumed that the mother would in fact remain the
primary caretaker in San Diego county. She made no recommendations about
what custodial arrangement should become effective when or if the Mother moved.
The appellate justices ruled: "Where, as here, a parent who shares joint custody of a minor makes a request
to relocate the child in the context of an initial custody determination,
the trial court must decide de novo what physical custody arrangement
would be in the child's best interests. In making its custody determination, the court must proceed on the assumption that the parent who is making
the request will relocate his or her own residence, regardless of whether the court grants or denies the request. In this case,
the court erroneously failed to conduct its best interests analysis based
on the presumption that Jamie would be relocating to Minnesota."
The trial court adopted the recommendations of Dr. Love, even though Dr.
Love failed to address what should happen if and when Jamie relocates
out of state. "The very issue that Dr. Love was supposed to address
is what parenting plan would be in L.'s best interests, given that Jamie intended to move to Minnesota
The court misapplied the law in adopting Dr. Love's recommendations,
because in making those recommendations, Dr. Love incorrectly assumed
that preserving the status quo parenting arrangement was an option, even
in the face of Jamie's expressed intent to move...."
At trial the Father's attorney asked Mother whether she would move
if the court were to deny her request to relocate, and Mom's response
showed she was tortured by the question. The appellate court ruled that
this question by counsel was improper - courts cannot consider whether
the primary parent might alter their plan of relocate depending upon how
the court rules. As a trial lawyer this is interesting to me, because
this question is often used to telegraph a message to the Court that implies
it can deny the move because the moving parent evidently doesn't want
to move 'badly enough.'
Apparently the trial court suspected Mother's motives for moving might
include frustrating Father's access, but the court did not actually
make such findings. "The court's comments regarding Jamie's
reasons for moving to Minnesota appear to constitute second-guessing as
to the wisdom of Jamie's decision to move (i.e., questioning the "necessity"
of the relocation), as opposed to a finding that her decision to move
was made 'simply to frustrate the noncustodial parent's contact
with the minor child.'" There is no requirement that a parent
who has the right to custody of a child establish the necessity of a proposed
move. "[E]ven where the court finds that a move away request is being
made in bad faith, the court must view this finding as only one potential
factor in deciding whether to allow the child's residence to be moved;
it does not permit the court to deny the move away request on the presumption
that in denying the request, the court can assure that the requesting
parent will not in fact move, and that the court can thereby maintain
the status quo parenting arrangement. That one parent may have been motivated,
in part, to relocate the child's residence by a desire to lessen the
child's contact with the other parent does not mean that the court
should apply any standard other than what would be in the best interests
of the child."
The Bottom Line
If a parent with the right of custody seeks to relocate with a child and
there is no final custody decree then in existence, the trial court must
determine what the new custodial arrangement should be based upon the
child's best interests under these new circumstances. The court cannot
substitute its wisdom for that of the moving parent, or refuse a move
simply because it disagrees with the parent's reasoning for leaving.
Even if it finds the moving parent is moving to frustrate visitation with
the other parent, that is but one factor among several affecting the child's
best interest and it is not itself sufficient, without more, to change custody.
Judges cannot refuse to permit the child to move in the hopes of coercing
the parent into staying locally instead. It is improper for judges and
lawyers to ask moving parents whether they would still move if they lost
custody, or to even consider this question. This means that it is similarly
improper for outside evaluators to ask or consider the question either,
or to report any such answer (or an opinion about what the answer might
be) to the Court.
Most important, recommending therapists and family court services personnel
must evaluate and render an opinion about what is in the child's best
interest, and specifically what a parenting plan should look like, by
taking it as granted that the parent who wants to move really will move.
Otherwise, they've wasted everybody's time and money no matter
how good their intentions or how firmly they feel about the current mental
health literature, or their own clinical experience, concerning the negative
effects of move-away.
The issue to be decided in move-aways is not whether a parent
can move, but what the custody and visitation arrangement should be assuming
the move will occur, once they announce that they intend to relocate.
There is something implicit here that suggests that once everybody agrees
that the moving parent is the better prime time parent, the move must
be approved (again, the real question is "who should have custody"
not whether the move is to be "allowed") and the inquiry then
shifts to what the remaining parent's visitation shall be.
Thurman W. Arnold, C.F.L.S.