Does Burgess apply pre-judgment?

[DecentDad]

Hi Soc,

I've had three years of temporary orders (i.e., no terminology noting that the orders are final).  We have trial now in May 2004.  It's a child custody case.

730 evaluator feels that pre-judgment, the burden is on the de facto custodial parent to demonstrate a move-away is best interest.  His report will include recommendations whether or not the move-away that biomom wants should occur.

I overheard opposing counsel discussing that Burgess could apply here, that Montenegro isn't as applicable.

Dynamics of my case, BTW, are very similar to Montenegro.  Biomom clearly doesn't want to share 4 year old child, as long history of evidence shows.

Case is California, obviously.

Many other issues involved in determining best interest, but regarding the core question...

1.  At trial, who has the burden of proving yay/nay about the move-away?  Is she responsible for proving why it's best interest to move, or is it on me to try to prove harm to child?

[socrateaser]

>1.  At trial, who has the burden of proving yay/nay about the
>move-away?  Is she responsible for proving why it's best
>interest to move, or is it on me to try to prove harm to
>child?

I don't believe that there is appellate law on the subject, mainly  because no one can appeal a temporary order. Thus, ALL of the case precedent revolves around permanent judgments.

Theoretically, until a final judgment is entered, both both parents are entitled to a presumption that "joint custody" is in the child's best interests, and neither parent has the right to relocate the child in a manner that would interfere with the other parent's custody rights, pending judgment. Furthermore, the court must decide every issue based upon the child's best interests.

So, both parents will reach the court on an equal footing (theoretically),  each parent will attempt to prove his/her case, and the court will rule in the child's best interests.

But, as I've been telling you all alone, as a practical matter, the parent with de facto or temporary primary custody always has the advantage, and unless you can show that that parent routinely acts against the child's interests, you will probably lose.

Remember, the judge doesn't want to consider Burgess, or any other matter. He/she wants you to SETTLE so that the court has no responsibility for the outcome. When you make these judges work, they get onery.

[DecentDad]

Thanks, yes, I'm aware (through your prior comments and other sources) that I've got a huge challenge to switch CP and NCP at trial.

We'll see how eval report turns out (this week or next) to assess just how big (or perhaps not) my challenge is upon going to trial.

Thanks again.

DD