Justices Ease Relocation of Children in Divorce Cases

The California Supreme Court, decreeing a major shift in family law, ruled Monday that a divorced parent who has child custody can move to a new city or state even if the other parent objects.

The parent with primary physical custody, the court held, need not show that the relocation is essential for a new job or other reason, only that it is in good faith. If the other parent wishes to change the custody arrangement because of the move, he or she must prove that the relocation would severely injure the child.

The ruling settles, at least in California law, one of the most wrenching dilemmas in custody disputes: What burden, if any, should be placed on a custodial parent who wants to take the children and move for a new job, a new marriage or a better lifestyle?

By refusing to place any burden on such parents, the Supreme Court has made it extremely difficult for a divorced parent to fight relocation by an ex-spouse with primary custody. Previously, a custodial parent, usually the mother, had to go to court to obtain permission to move and sometimes faced choosing between the move or custody.

“In a move-away case,” wrote Justice Stanley Mosk for the court, “a change of custody is not justified simply because the custodial parent has chosen, for any sound, good-faith reason, to reside in a different location. . . .”

Lawyers on both sides of the case, which involved a Southern California couple, predicted that the ruling may put more pressure on divorcing fathers to try to obtain full custody or joint physical custody of their children because of the prospect of losing visiting time.

“Parents will be fighting hopelessly for custody or joint physical custody so they can prevent the effect of this case,” said Bakersfield lawyer Edward Quirk Jr., who represented the ex-husband and father of the children. “In cases where the other parent has moved a great distance, you are going to basically miss the whole school year of this kid, baseball . . . education and training. It is going to be tragic, really.”

Within four years of separation or divorce, three of four custodial mothers move at least once, with 11.5 million minor children changing homes each year, according to experts. In California, about 58% of mothers retain physical custody of their children.

The Supreme Court decision follows nine California appellate rulings on such cases. In five of those cases, the courts prohibited the move.

“The legal chain that held [mothers] hostage to their ex-spouse’s desires or whims has now been forever severed,” said Michael Maroko, who represented the mother in the case.

Joining Gloria Allred, his partner, in a prepared statement, he added: “Women are now free at last to relocate with their children as long as the move does not prejudice the rights or the welfare of the children.”

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In the case before the state high court, Paul D. Burgess was challenging a 40-mile relocation by his ex-wife, Wendy, and their two children. The parents, who worked at the state prison in Tehachapi, divorced in 1992, and Wendy Burgess decided to move a year later for a career-advancing position at the state prison in Lancaster.

Her ex-husband balked, arguing that it was unfair for the children to spend several hours a week commuting to visit him. But she contended that Lancaster was a better home for the children because of more accessible health care, better schools and more recreational opportunities.

A trial court ruled in her favor, but a state Court of Appeal in Fresno reversed the decision, declaring that Wendy Burgess would have to prove that her relocation was necessary for her career or other interests.

The Supreme Court, overturning that decision, noted that the trial court had found it best for the Burgess children to live and move with their mother. Children benefit if their mother has a shorter commute to work and can spend more time with them and return home more quickly if they are ill, Mosk wrote.

By contrast, the father can still enjoy all his visitation privileges, albeit with less convenience, Mosk said.

The father, who could not be reached for comment, now sees his children, Paul, 8, and Jessica, 6, four days every other week and, alternatively, for one overnight a week.

“I fully understand how important it is to have their father in their life and to see him,” said Wendy Burgess, 36. “It won’t change now.”

Some legal analysts had expected that the court might differentiate between the Burgesses’ situation and custodial parents who move great distances. But the court did not appear to make any such distinction.

“I am surprised they went to this extreme,” said Quirk, the father’s lawyer. “A child needs both parents actively involved in his or her life to have a meaningful life.”

The decision supporting the relocation by Wendy Burgess was unanimous, but Justice Marvin Baxter dissented partially because he said the majority had gone too far in favor of the parent who moves away. Justice Ming W. Chin, in his first ruling since joining the court, signed the majority opinion.

Baxter wrote that parents who wish to change a custody arrangement when their spouse tries to relocate with their children should not be forced to prove that the move would substantially harm the children.

“When a custody dispute arises,” he said, “the court must weigh the child’s best interest even where that may affect a parent’s freedom, travel, lifestyle and economic interests.”

But researcher Judith S. Wallerstein, a retired UC Berkeley professor of social welfare, praised the majority holding because she said that changing custody when one parent moves is dangerously disruptive for the children. The decision recognized that Americans have a mobile society and parents often must move, she said.

“I think the children of California are infinitely better protected today than they were yesterday,” said Wallerstein, who wrote a friend-of-the-court brief in the case.

“Nobody is saying that the children should be taken away,” she said. “But it is in the best interest of the children to maintain the stability of the post-divorce family and not to go back to court whenever the parent wants to move away.”