More commonly, jurisdictions do not presume that relocation should be allowed and decide disputes based solely on the effect of the move on the child’s best interests. Generally, the burden is placed on the relocating parent to establish that the proposed move is in the best interests of the child. Often, the relocating parent must also demonstrate a good-faith or legitimate reason for the proposed move. Additionally, a small number of jurisdictions have seemingly placed the burden on both parents to demonstrate why a proposed relocation is or is not in the best interests of the child.
There has been a recent trend toward the application of a best-interests standard in resolving relocation cases. The effect of this trend has been to require a thorough analysis of the interests of the children involved, usually with the help of a lengthy list of factors to be considered, and necessarily implies that the resolution of relocation cases has become exceptionally fact-specific. While this trend toward focusing on the best interests of the child has had a liberalizing effect in certain jurisdictions, see Tropea v. Tropea, 87 N.Y.2d 727, 665 N.E.2d 145, 642 N.Y.S.2d 575 (1996), this trend has also had the opposite effect in other places, resulting in a stricter relocation standard in those states.
A recent example of this trend is the California Supreme Court’s decision in In re Marriage of LaMusga, 32 Cal. 4th 1072, 88 P.3d 81, 12 Cal. Rptr. 3d 356 (2004). After a contentious custody battle, the parties were awarded joint legal custody of their two children, with the mother being awarded primary physical custody. Several years later, the mother sought to relocate with the children to Ohio. A child custody evaluation was performed which established that the father’s relationship with the children would deteriorate after the relocation and that the mother’s previous conduct indicated that she would not be supportive of the father’s continued relationship with the children. The trial court found that, although the mother’s proposed relocation was not made in bad faith, the effect of the move would be detrimental to the welfare of the children because it would hinder frequent and continuing contact between the children and the father. The trial court held that if the mother chose to relocate, primary physical custody of the children would transfer to the father.
The trial court’s decision was reversed by the California Court of Appeal. The court of appeal relied on an earlier California Supreme Court decision, In re Marriage of Burgess, 13 Cal. 4th 25, 913 P.2d 473, 51 Cal. Rptr. 2d 444 (1996). In Burgess, the Supreme Court of California held that in relocation cases there was no requirement that the custodial parent demonstrate that the proposed relocation was "necessary." LaMusga, 12 Cal. Rptr. 3d at 367. Instead, the burden is on the noncustodial parent to prove that a change of circumstances exists, warranting a change in the custody arrangement. Id. The supreme court also held that the "paramount need for continuity and stability in custody arrangements . . . weigh heavily in favor of maintaining ongoing custody arrangements." Id. at 371 (quoting Burgess, 51 Cal. Rptr. 2d at 449-50). In effect, the Burgess decision established a presumption in favor of the custodial parent’s choice to relocate.
The court of appeal held that the trial court had failed to properly consider the mother’s presumptive right as the custodial parent to change the residence of the children or the children’s need for continuity and stability in the existing custodial arrangement. 12 Cal. Rptr. 3d at 371. The court of appeal also found that the trial court had "placed undue emphasis on the detriment that would be caused by the children’s relationship with Father if they moved." Id.
The supreme court rejected the court of appeal’s position that undue emphasis was placed on the detrimental effect of the proposed relocation on the father’s relationship with the children. The court of appeal concluded that all relocations result in "a significant detriment to the relationship between the child and the noncustodial parent" and, therefore, no custodial parent would ever be permitted to relocate with the children so long as any detriment could be established. Id. at 373. The supreme court accepted the validity of the court of appeal’s position but noted that the court of appeal’s fears were unfounded. The supreme court stated that "a showing that a proposed move will cause detriment to the relationship between the children and the noncustodial parent" will not necessarily mandate a change in custody. Id. Instead, a trial court has discretion to order such a change in custody even though some detriment will be caused as long as such a change is in the best interests of the child. Id. The supreme court explained its holding as follows:
The likely consequences of a proposed change in the residence of a child, when considered in the light of all the relevant factors, may constitute a change of circumstances that warrants a change in custody, and the detriment to the child’s relationship with the noncustodial parent that will be caused by the proposed move, when considered in light of all the relevant factors, may warrant denying a request to change the child’s residence or changing custody. The extent to which a proposed move will detrimentally impact a child varies greatly depending upon the circumstances. We will generally leave it to the superior court to assess that impact in light of the other relevant factors in determining what is in the best interests of the child.
Id. at 374-75.
In LaMusga, the Supreme Court of California has retreated from its much broader decision in Burgess. In Burgess, the court essentially established a presumption in favor of maintaining a custody arrangement in the interest of a child’s paramount need for continuity and stability. In LaMusga, however, the court stepped back from this presumption and found that the child’s need for continuity and stability was just one factor in determining whether to modify a custody award. The court found that other factors could also control the outcome of a custody case depending on the unique facts of each case. In adopting a best- interests analysis, the supreme court’s decision in LaMusga adheres to the principle that, due to the fact-intensive nature of relocation cases, a comprehensive review of all possible factors impacting on a child’s best interests will yield the most equitable results.
It is interesting to note that the California Family Code contains the same statutory language relied on by the Oklahoma Supreme Court in Kaiser to determine that the custodial parent had the presumptive right to determine where the child would reside. As the court in Kaiser noted, Cal. Fam. Code 7501(a) is the mirror image of Okla. Stat. Ann. tit. 10, 19. Despite the fact that California and Oklahoma both have the exact same statutory language, the respective supreme courts of the two states have fundamentally diverged on the effect of that language in relocation cases. Clearly, the California court has focused on the court’s power to restrain the custodial parent’s right to relocate depending on its effect on the child’s welfare. The Oklahoma court, on the other hand, has evinced its preference for the custodial parent’s right to control the residence of the child. The fact that two courts can interpret the exact same statutory language to assign two different burdens in relocation cases demonstrates the inherent difficulty in adjudicating these disputes.
The Georgia Supreme Court has also recently moved toward applying a best-interests standard in relocation cases. Until 2003, the Georgia courts utilized a presumption in favor of the custodial parent’s decision to relocate with the child in his or her custody. See, e.g., Ormandy v. Odom, 217 Ga. App. 780, 459 S.E.2d 439 (1995) (custodial parent had prima facie right to retain custody after relocation unless noncustodial parent proved that the child would be endangered in the new environment). This presumption was abrogated by the Georgia Supreme Court in Bodne v. Bodne, 277 Ga. 445, 588 S.E.2d 728 (2003), in favor of a determination of whether the relocation would serve the best interests of the children involved.
Pursuant to a final judgment of divorce, the father in Bodne was awarded primary physical custody of the parties’ children and the parties agreed to split equally the time each one would spend with the children. Two years later, the father planned to relocate from Georgia to Alabama and petitioned the court to modify the mother’s visitation rights. The mother opposed the father’s petition and also sought to be awarded primary physical custody of the children. While the trial court granted the wife’s request, the Georgia Court of Appeals reversed. Relying on Ormandy, the court held that the father’s proposed relocation did not constitute a change in circumstances warranting a modification of the original custody award.
The Supreme Court of Georgia reversed the court of appeals’ decision and, in the process, expressly overruled the presumption implicit in Ormandy that "the custodial parent has a prima facie right to retain custody unless the objecting parent shows that the environment of the proposed relocation endangers a child’s physical, mental or emotional well-being." 588 S.E.2d at 729.
The court noted that the motivation behind the father’s relocation was his desire to improve his economic circumstances by establishing a new medical practice and "to leave behind the pre-divorce chapter of his life." Id. The court characterized the father’s behavior as putting his interests above the mother’s and the children’s and found that his actions negatively affected both the children and the mother’s ability to be involved in their lives. The court noted that the evidence presented at trial clearly demonstrated that "the children would suffer irreparable harm in being denied regular contact with their mother." Id. Based on this evidence, the court concluded that the trial court had correctly found that a material change in circumstances existed warranting the transfer of custody to the mother. The court held that such decisions must be governed by the best interests of the children involved, and not by any presumption or bright-line standard.
When exercising its discretion in relocation cases, as in all child custody cases, the trial court must consider the best interests of the child and cannot apply a bright-line test. This means that an initial custodial award will not always control after any "new and material change in circumstances that affects the child" is considered. Scott v. Scott, 276 Ga. 372, 373, 578 S.E.2d 876 (2003). . . . [T]he primary consideration of the trial court in deciding custody matters must be directed to the best interests of the child involved, that all other rights are secondary, and that any determination of the best interests of the child must be made on a case-by-case basis. This analysis forbids the presumption that a relocating custodial parent will always lose custody and, conversely, forbids any presumption in favor of relocation.
The decisions in both LaMusga and Bodne are representative of the current trend toward relying on a best-interests standard in determining whether to allow a custodial parent to relocate. See also In re Marriage of Ciesluk, 2004 WL 1117900 (Colo. Ct. App. 2004) (holding that Colorado relocation statute as amended no longer contained presumption in favor of custodial parent); Fla. Stat. Ann. 61.13 (2004) (abrogating any presumption in favor of or against any proposed relocation). But see Hollandsworth v. Knyzewski, 353 Ark. 470, 109 S.W.3d 653 (2003) (recently adopting presumption in favor of custodial parent). These jurisdictions have clearly rejected the concept that the custodial parent should possess a presumptive right to relocate absent a sufficient showing by the noncustodial parent that the proposed move is not in the child’s best interests.
Most jurisdictions that apply a best-interests standard in relocation cases place the burden on the custodial parent to demonstrate that the proposed relocation is in the child’s best interests. "[T]he moving party bears the burden of establishing whether the requested relocation is in the best interest of the child." Rozborski v. Rozborski, 116 Ohio App. 3d 29, 686 N.E.2d 546, 547 (1996); see also Roberts v. Roberts, 138 Idaho 401, 64 P.3d 327 (2003); Brown v. Loveman, 260 Mich. App. 576, 680 N.W.2d 432, appeal denied, 470 Mich. 881, 682 N.W.2d 86 (2004); Ariz. Rev. Stat. Ann. 25-408 (2004); 750 Ill. Comp. Stat. Ann. 5/609 (2004).
However, several jurisdictions also require that the custodial parent demonstrate a legitimate or good-faith motive for the proposed relocation in addition to showing that the move is in the child’s best interests.
In order to prevail on a motion to remove a minor child to another jurisdiction, the custodial parent must first satisfy the court that he or she has a legitimate reason for leaving the state. After clearing that threshold, the custodial parent must next demonstrate that it is in the child’s best interests to continue living with him or her.
McLaughlin v. McLaughlin, 264 Neb. 232, 647 N.W.2d 577, 586 (2002); Moeller-Prokosch v. Prokosch, 27 P.3d 314 (Alaska 2001); Mo. Ann. Stat. 452.377 (2004). Reasons that have been found to be legitimate in relocation disputes are discussed in greater detail in Part IX, infra.
Finally, at least one jurisdiction has placed the burden on both parties, requiring both the custodial parent and the noncustodial parent to present evidence concerning whether the proposed relocation is or is not in the best interests of the child. Fla. Stat. Ann. 61.13(2)(d) provides the following:
No presumption shall arise in favor of or against a request to relocate when a primary residential parent seeks to move the child and the move will materially affect the current schedule of contact and access with the secondary residential parent.