Still cooling off from its explosive emergence into the family law arena in late-April, the holding in the recent California Supreme Court case, In re Marriage of LaMusga (2004) No.S107355 is already changing the issues courts must consider in "move-away" cases. In a move-away case, the custodial parent petitions the court for leave to move away with the children from the children’s customary residence. This typically has far-reaching, practical ramifications for the non-custodial parent.

Prior to last week, the seminal case for move-away issues in family court was In re Marriage of Burgess (1996) 13 Cal4th 25. The Burgess decision consisted primarily of two prongs. First, it substantiated the presumptive right of a custodial parent to move away with the children, absent a showing of bad faith on the part of the custodial parent. Two, Burgess set forth an arguably oversimplified test, warranting a change of custody only if the non-custodial parent sufficiently demonstrated the children would suffer detriment as a result of the relocation, rendering change of custody ‘essential’ or ‘expedient’ for the children’s welfare.

Fast forward to 2004: LaMusga is a generally regarded as a more non-custodial parent friendly decision, though it proclaims to fit within the parameters set by Burgess. LaMusga simply states that the non-custodial parent has the burden to make an initial showing that the move would cause detriment to the child. Once the non-custodial parent meets this burden, the court, in its own words, must "perform the delicate and difficult task of determining whether a change in custody is in the best interests of the children."

Critics of LaMusga rightfully point out that the recent decision almost entirely disregards the first prong of Burgess: the presumptive right of a custodial parent to move away with the children.

At the same time, however, LaMusga puts teeth in the factors Burgess initially formulated. The factors courts must now consider when determining whether a modification of custody is necessary for the children’s welfare are the following: the children’s interests in stability and continuity in the current custody and visitation schedule, the distance of the proposed relocation, the age of the children, the children’s relationship with both parents, the parents’ abilities to community and cooperate effectively, the parents’ willingness to put the interests of the children above their individual interests, the wishes of the children (if the children are of appropriate age), the custodial parent’s reasons for the move, and the extent to which the parents currently share custody.

It will be interesting to see how family courts reconcile these two precedents. Stay tuned.

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