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Author Topic: KICKASS! LaMusga prevailed!!  (Read 4523 times)

DecentDad

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KICKASS! LaMusga prevailed!!
« on: Apr 29, 2004, 11:24:38 AM »
http://www.courtinfo.ca.gov/opinions/documents/S107355.DOC

New move-away precedent established in California!


kiddosmom

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RE: KICKASS! LaMusga prevailed!!
« Reply #1 on: Apr 29, 2004, 12:30:30 PM »
OK, I read it, or most of it, and have no clue what is is.

Anyone speak ENGLISH care to translate?

mango

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RE: KICKASS! LaMusga prevailed!!
« Reply #2 on: Apr 29, 2004, 12:50:36 PM »
I read it too, confused.

DecentDad

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Here's what technically happened...
« Reply #3 on: Apr 29, 2004, 01:59:48 PM »
Hi,

I'm not a lawyer, so I don't quite know what the implication of this case will be on move-away orders in California.

But... here's the basic history of the LaMusga case and what the Supreme Court ruled about.

1.  Parents divorced, biomom is ordered primary custodial parent.

2.  Biomom's new husband gets a good job in Ohio.  Biomom asks trial court to let her move.

3.  Biofather (also remarried) says the move will be detrimental to the children's relationship with him.

4. Trial court said that biofather had presented enough evidence that a re-evaluation was warranted before ruling on the move-away.

5.  Custody evaluator said that move would be bad for kids' relationship with dad, that mom has a history of contributing to alienation.  Evaluator said that if mom moves and kids stay with dad, that would also be bad for them because they have good relationship with mom, stepdad, and half-sister.  Evaluator said that both parents were "good enough" parents, but they have high conflict between them.

6.  Trial court weighed all evidence and said that mom will remain primary custodial parent unless she moves to Ohio, in which case custody will switch to dad, as that would be in kids' best interest.

7.  Mom appealed.  Appellate Court found that trial court abused discretion and didn't follow Burgess (i.e., case law regarding move-away).

8.  Dad asked Supreme Court to review.

9.  In meantime, Mom decided she wanted to move to Arizona instead of Ohio.  She asked the Supreme Court to drop the case, since the original orders were about moving to Ohio.

10. Supreme Court denied Mom's request, saying that the ruling on this case could have public benefit.

11.  In Aug 2003, Mom got temporary orders to move to Arizona, pending outcome of Supreme Court.

12.  Today, Supreme Court reversed the Appellate Court's ruling.  Supreme Court found that Appellate Court made inaccurate presumptions about intent of Burgess, and aside from custodial parent's presumed right to move, that trial court still has obligation to use discretion and rule in best interests of the children.

So... it's a very interesting case because the primary parent was not allowed to move away with the children at the trial court level, and the Supreme Court found that the trial court was acting within its discretion for the best interest of the children.

The LaMusga parents/kids may still have unresolved issues on their hands, because the kids have been in Arizona for 8 months now, and now it's a new examination of what's in their best interest (i.e., bounce them back to Dad in CA?!  Their situation has changed since the original ruling).

However, it would appear that this ruling makes it easier to argue detriment to kids on move-aways without having to prove a very narrow "bad faith" cause for the move.

But again, I'm not an attorney, so I really don't know how this will have an impact on move-away custody rulings.

DD

antonin

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RE: Here's what technically happened...
« Reply #4 on: Apr 29, 2004, 04:06:36 PM »
My God! How much did all this cost! Did you see the lists of attorneys for each side!
(It looks like she got alot of free assistance from NOW)


tryingtohelp

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RE: Here's what technically happened...
« Reply #5 on: Apr 29, 2004, 05:33:10 PM »
what is NOW?

hskrstepmom

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RE: KICKASS! LaMusga prevailed!!
« Reply #6 on: Apr 29, 2004, 06:34:40 PM »
Check out Socrateaser's interpretation. Looks like it could be much more difficult for CPs to move children away.

antonin

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RE: Here's what technically happened...
« Reply #7 on: Apr 30, 2004, 05:30:05 AM »
The National Organization for Women

3wishes

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RE: KICKASS! LaMusga prevailed!!
« Reply #8 on: May 01, 2004, 08:39:28 AM »
Link?

olanna

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If the kids have been in AZ for 8 months...
« Reply #9 on: May 02, 2004, 07:47:48 AM »
the Court there could very well take jurisdiction. Most any atty on the mother's side would advise her to take that route.

Rakkasan

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RE: If the kids have been in AZ for 8 months...
« Reply #10 on: May 02, 2004, 12:28:32 PM »
11. In Aug 2003, Mom got temporary orders to move to Arizona, pending outcome of Supreme Court.

Rakkasan

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Here's your link
« Reply #11 on: May 02, 2004, 12:35:08 PM »
[a href=http://www.deltabravo.net/dc/dcboard.php?az=show_mesg&forum=106&topic_id=1525&mesg_id=1528&page=]http://www.deltabravo.net/dc/dcboard.php?az=show_mesg&forum=106&topic_id=1525&mesg_id=1528&page=[/a]

olanna

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Supreme Court for California?
« Reply #12 on: May 02, 2004, 05:28:08 PM »
As the federal mandates are the state where the child has lived for the past 6 months takes jurisdiction.  I do feel for this father but I also know how the family courts work. A change in custody will most likely only happen after a GAL or CASA evaluates the children *and* finds the custodial parent unfit.  While this might look like a wonderful thing, I would be cautiously optimistic.  The longer she is primary custodian, the less his chances for changing custody.  I would also be inclined to think that even allowing her to move temporarily to AZ shows the most likely way the court will rule.

:(

SLYarnell

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RE: Supreme Court for California?
« Reply #13 on: May 02, 2004, 05:52:29 PM »
The dad has already stated publicly that he doubts this will help him get his children back but he hopes in will make a BIG difference for the future.  I think he deserves our biggest thanks for his incredible effort!

olanna

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I agree 100%.
« Reply #14 on: May 02, 2004, 06:15:16 PM »
I was under the impression that the original poster believed it would make a difference for *this* Dad...and to that end, I am sad to say it most likely will not.

Rakkasan

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RE: I agree 100%.
« Reply #15 on: May 02, 2004, 07:26:24 PM »
I am of the belief that the Temporary Order allowing the children to be moved to Arizona gives the California court juristiction still, as the Mother would have to have agreed to the terms that the move was allowed pending the outcome of the California case, plus I don't believe Arizona can claim jurisdiction as there are matters still pending in California.

This could be argued as forum shopping where one party knowing they are going to lose in one state moves to another in the hopes of gaining a more favorable ruling. My PBFH did this filing in Kentucky while matters were pending in Florida. Kentucky could not hear the case without the Florida judge relinquishing jurisdiction, which the Florida judge would not do.


olanna

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Each state is like a small country when it comes to family court
« Reply #16 on: May 03, 2004, 12:15:09 AM »
What happens with one judge in one state doesn't necessarily hold up in another state. I had the only final custody order giving me custody of my kids after the divorce. The child had lived in CA for years with me but the judge in SC insisted he had jurisdiction and ordered me to send my son back. I didn't know enough to fight on the grounds that CA had jurisdiction as the child was living with me in my home.  If I had of known that, I would have thumbed my nose at the SC judge and kept him here with me.

Again I say...the longer those children remain with Mom, the less of the chance the custody will be turned over to Dad.

I guess time will prove me wrong or right...




DecentDad

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RE: I agree 100%.
« Reply #17 on: May 04, 2004, 10:02:30 AM »
Hi,

I'm the original poster, and in my original post that LaMusga prevailed, my comment was that a new precendent was established for California [case law].

In my subsequent post in the same thread, I clarify that it would seem it's thrown back to the trial court to determine best interest now, and the fact that the kids have been in AZ for 8 months is a new situation.

His kids are still relatively young, and there's no telling what the future will hold for them.

However, if during these past 8 months, the mother has been just as alienating and uncooperative as the evaluator in the case has described, there's no doubt that the issue will once again be addressed by the trial court-- and the trial court may still see that another one-time move back to California for the kids may be less damaging to them than losing their relationship with their father.

In any event, the Supreme Court emphasized in its ruling that the trial court is obligated to use its discretion to make judgments in the best interest of the child, weighing all evidence.

DD

 

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