Mark T. v. Jamie Z., D057091

In a decision filed April 28, 2011, the 4th California Court of Appeals determined that, when a joint-custody parent wishes to move to another state, the trial court must assume the parent will move and make a custody determination is in the best interests of the child, not deny the move away to coerce the parent to stay.

In this particular parentage case, decided initially by San Diego Superior Court Judge, Lisa Schall, the mother planned on moving to Minnesota citing poverty and a lack of job opportunities.  Family Court Services recommended that, as the mother had been primary caretaker of the minor child since his birth, the mother should retain custody after she moved.  The custodial evaluator, Dr. Love, disagreed, arguing that such an order would prevent the father from establishing a relationship with the child.  Judge Schall agreed, denying the mother’s request to move based on concern for a “long term detrimental impact on [child’s] ability to maintain his relationship with his father.”

The problem was that the Court actually didn’t have the jurisdiction to refuse a move-away order.  The appellate Court cited Ruisi v. Thieriot (1997) 53 Cal.App.4th 1197, 1205-1206 (Ruisi):

“[W]hen the trial court is faced with a request to modify the existing custody arrangement on account of a parent’s plan to move away (unless the trial court finds the decision to relocate is in bad faith), the trial court must treat the plan as a serious one and must decide the custody issues based upon that premise. The question for the trial court is not whether the parent may be permitted to move; the question is what arrangement for custody should be made [if and when the parent moves].

This issue had just come up in a very similar case, F.T. v. L.J. (2011) 194 Cal.App.4th 1, in which the trial court denied a move-way request to ensure that a joint-parenting father would stay San Diego.  This denial was reversed on appeal on the grounds that the trial court had abused its discretion.

Based on these precedents, the Court made determined that a court must make a custody determination based on the assumption that the joint-parent is moving.  The trial court should have determined if it was in child’s best interest to go with parent to Minnesota.  If it was not, or if the trial court determined that the mother’s move was in bad faith (to disrupt father’s access), there would be justification for changing the primary custodian.  The Court did not make a finding of bad faith in this case.

The bottom line, according to the Appellate Court, is this: The trial court did not have the jurisdiction to prevent the move of the parent.

“To the extent that the trial court denied the move away request with the goal of maintaining the status quo and/or coercing [the mother] to abandon her proposed plan to move to Minnesota, it abused its discretion.”  In doing so, the trial court had made an order that could not be effectuated if and when Jamie moved to Minnesota.  The Appellate Court thus reversed Judge Schall’s decision and remanded the case back to the lower court.

Full transcript of the Court’s decision can be found here.