In re LaMusga case on child custody issues when one parent wants to move away

Filed 4/29/04

IN THE SUPREME COURT OF CALIFORNIA S107355
Ct.App. 1/5 A096012

In re the Marriage of SUSAN and GARY LAMUSGA

SUSAN POSTON NAVARRO,
Appellant

v

GARY LAMUSGA
Respondent

Contra Costa County Superior Court case # D95-01136

In In re Marriage of Burgess (1996) 13 Cal.4th 25, 28-29, we held that a parent seeking to relocate after dissolution of marriage is not required to establish that the move is “necessary” in order to be awarded physical custody of a minor child. Similarly, a parent who has been awarded physical custody of a child under an existing custody order also is not required to show that a proposed move is “necessary” and instead “ ‘has the right to change the residence of the child, subject to the power of the court to restrain a removal that would prejudice the rights or welfare of the child.’ (Fam. Code, § 7501.)” (Id. at p. 29.) In the present case, the superior court ordered that primary physical custody of two minor children would be transferred from their mother to their father if their mother moved to Ohio. The Court of Appeal reversed, holding that if the custodial parent “has a good faith reason to move . . . the custodial parent cannot be prevented, directly or indirectly, from exercising his or her right to change the child’s residence” unless the noncustodial parent makes a “substantial showing” that a change of custody is “essential” to prevent detriment to the children. We granted review to determine whether the Court of Appeal in the present case misapplied our holding in Burgess. We conclude that it did and reverse its judgment.

As explained below, we conclude that just as a custodial parent does not have to establish that a planned move is “necessary,” neither does the noncustodial parent have to establish that a change of custody is “essential” to prevent detriment to the children from the planned move. Rather, the noncustodial parent 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. The likely impact of the proposed move on the noncustodial parent’s relationship with the children is a relevant factor in determining whether the move would cause detriment to the children and, when considered in light of all of the relevant factors, may be sufficient to justify a change in custody. If the noncustodial parent makes such an initial showing of detriment, the court must perform the delicate and difficult task of determining whether a change in custody is in the best interests of the children.

The father in the present case satisfied his initial burden of showing that the mother’s planned move would cause detriment to the children, requiring a reevaluation of the children’s custody. The superior court properly considered the relevant factors and did not abuse its discretion in deciding that a change in primary custody from the mother to the father would be in the best interests of the children if the mother moves to Ohio.

Text of entire decision