De Facto Termination of Visitation Rights

[Troubledmom]

State: California

California's move away law is highly favorable to the custodial parent when there is not substantial time share. The situation is  the non custodial parent has a significantly lower income than the custodial parent (the cp pays the ncp child support) but the NCP cannot meet the substantially equal time share factor as directed in Burgess.

In a situation where the income of one parent would prevent visitation from occuring would it be likely that the court would consider De Facto termination of visitation as a factor in preventing the child's residence from being changed from the state?

Thank-You
TM

[socrateaser]

>In a situation where the income of one parent would prevent
>visitation from occuring would it be likely that the court
>would consider De Facto termination of visitation as a factor
>in preventing the child's residence from being changed from
>the state?

Burgress has been substantially modified by LaMusga, 88 P.3d 81, 32 Cal.4th 1072.

"Among the factors that the court ordinarily should consider when deciding whether to modify a custody order in light of the custodial parent's proposal to change the residence of the child are the following:

the children's interest in stability and continuity in the custodial arrangement;
the distance of the move;
the age of the children;
the children's relationship with both parents;
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;
the wishes of the children if they are mature enough for such an inquiry to be appropriate;
the reasons for the proposed move; and
the extent to which the parents currently are sharing custody."

Although the ncp generally bears the burden of overcoming the presumptive right of the cp to relocate the child, the ncp can overcome the presumption by showing that a move is detrimental to the children's best interest. In practice, this is a fact based analysis that requires the expert testimony of a court-appointed evaluator.

You present only one fact for consideration, i.e., what you refer to as "de facto" termination of visitation. Using your description and surveying the above-referenced factors of LaMusga, I find no reference to the notion of "de facto termination of visitation," and no simple means of applying the facts to the law, in order to come to any reasonable conclusion.

You can evaluate your chances by considering the facts visa vis the LaMusga factors, or you can post all the facts that you believe are relevant to the resolution, so that I can try to apply the facts to the factors. But, without a complete statement of facts, I am unable to give you any substantive advice, other than to say that the court has very broad discretion and if the matter is brought to the court, the court could very easily go either way.

Frankly, the CA courts and the legislature have botched the moveaway issue up beyond all comprehension -- as they have done with most of CA family law. But, that's what you're stuck with, so there's nothing to be done other than to try to make sense out of the nonsense.

Wish that I could be more clear -- but, I can't.