Child Relocation: Relocation by Parent with Sole or Primary Physical Custody: Best Interests of the Child

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.