The LaMusga ruling - what does it mean?

[DecentDad]

Hi Soc,

LaMusga prevailed today, Supreme Court reversed Appellate Court and found that trial court acted within discretion for best interest of child when giving father custody if mother were to move.  At least that's what I think happened, in reading the opinion.

In terms of what this means to all the rest of us... in practice does this mean that move-aways may not receive the same rubber-stamp that they did since Burgess?

Does the burden to block a move-away become less (i.e., in LaMusga, after father showed initial detriment to child, trial court had to reevaluate best interest in determining custody).

Would love to know your thoughts of how this has an impact on noncustodial parents.

DD

[socrateaser]

OK, I just read the opinion. It definitely creates some new rules for move-away issues, and perhaps for  custody issues in general.

The court has allowed a change of primary custody to the non-custodial parent as the result of the custodial parent's intent to move the children out of their status quo environment.

The court found that the non-custodial parent who opposes such a move "bears the initial burden of showing that the proposed relocation of the children's residence would cause detriment to the children, requiring a reevaluation of the children's custody."

Previously, the court has ruled in Marriage of Burgess (1996), that a custodial parent does not need to show that a move is "necessary" in order to be permitted to relocate with his/her child(ren). A custodial parent is free to move subject to a court order restraining such a move as prejudicing the child's rights and welfare.

The LaMusga ruling now emphasizes that what matters is not what either parent wants, but rather, and like just about everything that occurs in family law, whether a parent's actions are in the child's best interests, and that the court is bound to resolve any dispute between parents by making such a determination.

The court announces the following factors that should be considered in resolving move-away (and probably other) custody issues:

1. the children's interest in stability and continuity in the custodial arrangement;

2. the distance of the move;

3. the age of the children;

4. the children's relationship with both parents;

5. the relationship between the parents including, but not limited to, their ability to communicate and cooperate effectively and their willingness to put the interests of the children above their individual interests;

6. the wishes of the children if they are mature enough for such an inquiry to be appropriate;

7. the reasons for the proposed move;

8. the extent to which the parents currently are sharing custody.

Basically, the court is deferring to the broad discretion of the trial court to determine whether parental actions have or are likely to harm the children. This is good, because it gives a parent, and the parent's attorney, attempting to stop a move, some clearer guidelines to follow -- something not present since the Burgess decision.

It is also good because this ruling is based on facts that show the trial court is definitely punishing the custodial parent for her wanting to move the children so that she can remove herself and take the boys from the day-to-day interactions with the father.

For those people who always put "children first," this ruling will be seen as a positive; for those who think that parents have rights, too, it's a message that, in modern family law, parents don't really have rights -- parents are to raise and support their child(ren), and anytime that a parent's needs or rights conflict with those of their child(ren), the parent will lose.

In summary, I suggest that anyone who is headed for a custody struggle in CA, frame their facts and arguments in a manner that ONLY considers how the children will fare as a consequence, because using court time to ask the court to consider the effect on either parent, is a complete waste of time.

[DecentDad]

Hey, thanks for taking that time to help frame what LaMusga may do for future rulings.

As I was skimming through the amici curiae listed on LaMusga case, I suddenly saw that my 730 evaluator is among those on Respondent's side (i.e., father) for minors.

He had mentioned Burgess and referred to the upcoming LaMusga decision, when he was asking me about biomom's stated desire to move-away.  I just spelled out all the best interest reasons that 4 year old daughter shouldn't move away (i.e., consistency in her two known homes, negative impact on father/daughter relationship, consistency in her preschool while no preschool availability is known post-moveaway, that biomom's living/working plans aren't established for the move-away, that biomom previously interfered with father/daughter relationship when she moved without my consent and prior to court orders on visitation, that daughter has positive relationship with my wife established since daughter was a year old, that biomom's mother located in city of moveaway has contributed to alienation attempts, etc).

1.  Presuming I've clearly outlined biomom's hostility toward me, along with her stated intent (in depo) that she will minimize my contact with daughter if it were her decision after court lets her move away, along with all her kooky/unfounded allegations about me (disproven by evidence and my polygraph), along with what I presume will be a finding that my parenting skills are superior to hers (but she may be "good enough")... does knowing my evaluator filed amicus curiae brief in support of trial court's decision give me any particular strategic insight that can be exploited prior to my evaluator's report?

As there's so much wildcard element to the ultimate ruling, I'm just always trying to stack the deck as much as possible.

Thanks, Soc.

DD

[socrateaser]

None of the proposed presumptions stated in your "question" has any logical relevance to the fact that the evaluator filed amicus curiae in LaMusga -- but it certainly took up lots of space and time for me to read it, so cut it out, please.

The fact that your evaluator is well known and respected and that he files amicus briefs gives him independent weight before the court.

I gave you the new factors that the trial courts MUST now consider for a move away, issue, which is what you have. Emphasize them in your presentation and in your trial brief, so that the judge will know that you know what the court must now consider. Relate everything that you can to the LaMusga case -- your case is directly on points -- make sure that the court recognizes that the mother is trying to locate with the kids in order so that she may avoid dealing with you entirely.

If you present yourself in "exactly" the same circumstances as the father in LaMusga, then the court will be forced to rule "exactly" the same for you, based on precident.

[DecentDad]

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