Jacob A., v. C.H.; C064741, (Super. Ct. No. PFL2008-0012)
The California Third District Court of Appeal reversed the decision of the El Dorado Superior Court to deny the move-away of a mother on the grounds that the trial court’s order, “was based on incorrect legal assumptions and failed to address the legal issue presented by mother’s request to relocate with the child,” specifically, what custody arrangement would be in the child’s best interest. This decision was filed June 30, 2011.
The matter involved a post-judgment custody dispute in which mother wanted to move from California to Washington with the minor child. Third-party recommendations stated that even if mother was a better parent and potentially more attentive to the child’s medical issues (the child had diabetes), prolonged lack of contact with the father was deemed not in the best interest of the child. The court denied mother’s request to move to to keep the child accessible to father. The appellate court found this to be an abuse of discretion. Instead, the appellate court stated, the trial court should have assumed mother would be moving and made custody orders in the best interest of the child based on this new situation.
“…whether the minor’s counsel, the mediator, or it [the trial court] believes mother will not move without the child, is legally irrelevant. Mother has a right to move and she has decided to move; that is the premise from which the legal analysis must begin.”
“The decision to move a child away from one of his or her parents is one of the most difficult decisions a judge will ever have to make. Nevertheless, the decision cannot be avoided by coercing the moving parent into staying or prohibiting her from moving.”
The matter was remanded to the trial court for a new determination of custody and visitation. Mother was awarded her costs on appeal.
Full transcript of the Court’s decision can be found here.