‘Move-Away’ Parents Get Green Light
The California Supreme Court on Thursday shifted the balance in fights between divorced parents with a ruling that eases the way for a parent with custody -- usually the mother -- to move away over her former mate’s objections.
Anthony Yana, a divorced father from San Luis Obispo County, tried to prevent his ex-wife from moving to Nevada with their 12-year-old son, Cameron. The ex-wife, Nicole Brown, who had full custody of the child, had remarried and her new husband had a job in Las Vegas.
Brown, who has two other children with her second husband, argued that Cameron would suffer if he was separated from his half-siblings. She also offered Yana more time in the summer with their son.
Yana argued that moving would put the boy in a community with poor schools and more crime. He also moved for joint custody. A lower court ruled that a judge should have held a full hearing on Yana’s objections before the mother could relocate.
The high court disagreed, in Brown vs. Yana. The court ruled that a parent who lacks custody, usually the father, would have to show that the move would harm the child before he would be granted a hearing.
A hearing “in a move-away situation should be held only if necessary,” Justice Marvin Baxter wrote for the unanimous court.
A trial court may deny a hearing if “the noncustodial parent’s allegation or showing of detriment to the child is insubstantial in light of all the circumstances presented in the case,” Baxter said.
The decision limits the impact of a 2002 court ruling that critics had warned would result in expensive legal battles every time a custodial parent attempted to relocate over the other parent’s objections.
Attorney Jeffrey W. Doeringer, who represented Brown in the case, called Thursday’s ruling “a step back” from the 2002 decision.
“The Supreme Court has put a little wedge in there and said wait a minute, before you open the door to move-away litigation, there has to be something substantial,” Doeringer said. “It is not fair to the parties or the children to go through the emotional and financial strain of this kind of litigation.”
Daniel Helbert, the trial attorney for Yana, said the ruling would make it harder for a divorced parent to prevent the custodial parent from moving with their child.
“You can’t just say that my son is going to be living 1,000 miles away and we won’t share the same relationship,” Helbert said. “I don’t think that is going to be enough to get a hearing anymore.”
David L. Levy, who heads the Children’s Rights Council, a Maryland-based international child advocacy group, complained that the court created “too high a bar” for obtaining a full hearing to challenge a move.
“A child should have easy access to both Mom and Dad,” Levy said. “Nobody should have to fight to maintain that relationship.”
He said there are 3 million mothers in the U.S. without custody of their children and 12 million fathers.
Kim Robinson, a family law attorney who represents custodial parents, praised the court’s decision to limit hearings.
“It requires that a parent opposing a move comes in with specific facts about this child and about this move and doesn’t just rely on a general belief that all moves are bad for children -- because they are not, " said Robinson, who believes that custodial parents who want to move should have greater say in court than parents without custody. “Not all moves are bad for children.”
Thursday’s decision will not affect Cameron’s current custody arrangement. After moving to Nevada with his mother, Cameron decided he would prefer to be with his father, and his mother eventually allowed the child to live with Yana in Santa Maria.
At a court hearing in November, “the boy testified unequivocally how unhappy he was with his stepfather and his mother,” Helbert said. “He wasn’t doing well in Las Vegas.”
At one point, the boy refused to board a plane to return to his mother, the lawyer said.
While the move-away mother was the winner in Thursday’s ruling, the California Supreme Court also offered some comfort to parents who might challenge their former mates’ relocations in the future.
The court refused to rule that a child’s unhappiness about moving could never be a sufficient reason for changing custody status. The court also said that regardless of custody status, any parent can try to stop a relocation if that parent can make a sufficient showing of potential harm to his or her children.
“Even a parent with sole legal and sole physical custody may be restrained from changing a child’s residence if a court determines the change would be detrimental to the child’s rights or welfare,” Baxter wrote.
The ultimate decision on custody would be based on the child’s stability, how far away he is moving, his age and relationship to his parents and his own wishes, Baxter said.
He observed that custody modifications have been approved by courts in two previous relocation cases because judges found that the moves would hurt the children.
In one case, the state high court ruled against a mother who the justices found had tried to alienate the children from their father. The court also held that the mother’s planned relocation 2,000 miles away would have hurt the children’s relationship with their father.
In the other case, a state court of appeal determined that a move would have prevented a child from obtaining needed medical care.