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To Move or Not to Move [With the Kids], That is the Question

By Jennifer Jackson, JD (Family Law News, Judicial Survey, Vol. 18, No. 2)


Alameda County: The Hon. Barbara Miller
Solano County: The Hon. David Haet

The children will not leave unless I do. I shall not leave unless their father does, and the King will not leave the country in any circumstances whatever. Elizabeth, Queen Mother of England, 1940.

Just like a tree that's standing by the water, We shall not be moved. Anonymous: Spirituals

To move or not to move [with the kids], that is the question. Indeed. In today's increasingly mobile society, parents are faced with this issue on a daily basis. The courts, however, have yet to catch up with the issue, and have yet to settle on a consistent approach. In the vacuum, however, family law judges have developed approaches that appear to be working.

Let's hear from the judges.

What are the minimum procedural requirements and entitlements in a moveaway case?

Alameda: The cases are in sync in terms of procedure; a moveaway case has to be handled in a different way from your daily OSC calendar. It's clear you're not supposed to decide the case strictly on declarations. The parties have a right to have a meaningful investigation and a thorough proceeding, whether you allow an evaluation with a short hearing afterwards or you skip the evaluation and go straight to a full hearing. Regardless of how you proceed, it's the kind of issue on which you are required to spend some time.

The stakes are enormous; at Judge's College, there is a class dedicated to them called The Nightmare Cases. It's the difference between the parent seeing his child a couple of times every week or two and a couple of times a year. These and molest cases are probably the hardest cases we have in family court.

We seem to deal with these cases daily, but only about half a dozen of these cases have actually come to trial before me. If they've come to court, the first thing I want them to do is meet with Family Court Services to see if they can work it out themselves. I want them to have meaningful mediation. If it can't be worked out there, then we decide whether we go the evaluation route.

Solano: Parents are entitled to notice and an evaluation. The thing that bugs me the most about moveaways is that even though the move may be legitimate, and even though the code says you have to give notice, dad1 is usually the last to find out. The worst thing for any parent is to get a note from the other parent saying don't bother to pick up Johnny this weekend, we're moving to Texas. It comes as a complete shock; dad has to scramble around to get in ex parte, and often by the time he gets there, mom and the kids are gone and the District Attorney is involved.

When I'm making a custody order, I specify on the record that if a party is going to have to move out of state, she has to give x number of days' notice, so we don't encounter one of these surprise flights. Of course the parties can always get around my requirement by an agreement in writing, notarized.

A parent who requests an evaluation is absolutely entitled to it. Unless there is no objection from the other parent, it would be derelict for us to order such a substantial change without allowing a full investigation, including an evaluation. Having said that, it surprises me how many parents will stipulate to the move. This can be a money issue, a carrot-stick approach where dad knows he can really extract some concessions. For example, dad might stipulate to the move if support is lowered. Little does he realize they child support is likely to ultimately increase substantially.

Once your have an evaluation in place, what do you want to hear from the evaluator and how important is the recommendation?

Solano: I don't want a recommendation about the move itself: that's my job. I make my own analysis, but the evaluation gives me something to hang my hat on. I want to see the evaluator's opinion across the board. The evaluation should go into everything about the parents, the new situation, the present circumstances; the evaluator should not simply say that the move is a good idea.

The lofty ambition of an evaluation is to keep the process from being adversarial but it is often impossible to avoid that. More and more I'm seeing parents testifying rather than accepting the report. But the evaluation process gives both parties the perception that there has been a thorough airing of the issue, that they've really had a chance to spend time with the evaluator, and that they have had their say. If parents feel that they have been listened to, even though they may not like the recommendations, it may be easier to accept them. The process also gives a voice to kids. Since I don't normally allow children to testify, it's very important for the kids to be able to talk to the evaluator.

Alameda: I agree that the ultimate decision is mine. Even though evaluators and mediators are grappling with the same issues the court is, they don't understand all the law and policy that interweaves with the facts and circumstances. In Ventura County, counselors and evaluators are not allowed to make the ultimate recommendation on whether a move should take place or not; I would like to see this put in place in my county. The evaluation should focus on children's developmental needs, their relationship with their parents, their feelings, the exigencies of the new situation and the one the moving parent would be leaving behind, and should make alternative recommendations depending on whether or not the move takes place.

What is the threshold inquiry?

Alameda: The cases right now are pretty consistent that if one parent wants to change an existing custody order by moving away, the general burden of proof is on mover, especially with Burgess out of the picture. However, it is not quite clear who has the burden of proof on what issue, in terms of the complete analysis. The Burgess case was really disturbing in that in spite of there being no permanent custody order in place, this appellate court would have us apply the stringent "move-away"/"change of custody" analysis when there should have been so much more discretion.

Family law judges generally do not particularly like the burden of proof requirements, whatever they are. There is a growing demand for an even playing field. To this end, a group of judges through the California Judges Association and attorneys from the State Bar drafted a statute that got as far as the Senate Judiciary Committee last year, but is currently held "in abeyance". We proposed that neither side have the burden of proof, but that the Court should take a fresh look at what is in the children's best interests. Obviously the parties must come forward with their evidence, but the issue as a whole would be within the court's discretion.

Solano: If mom's trying to move, the first issue will be whether she is over the hurdle of showing there's a reason for her going. If there is no real detriment to dad, then I don't believe the court needs to go any further, in that then the question becomes one of paternalism: how far does the state interfere in what parents decide what is going to be best for the kids? If mom feels it is better for the children in Idaho, shouldn't she have the right to move there with the child if Dad can't show much detriment? Really, it's like we put this Berlin Wall around California and tell people they can't leave. The same argument comes up even if you are only moving 40 miles down the road.

At some point the legislature has to do something about it but the problem is, wouldn't guidelines make it worse, rather than better? These are the guidelines you have to follow and if you don't, you don't move. It will be like three strikes - no discretion at all. But no two cases are alike, and no one can follow twenty five guidelines. Why not bring back wagon trains and make them go by horse and foot - then no one would leave.

What is"Detriment"?

Solano: If dad has a pretty consistent relationship with children and the parenting situation is not too strained, then I'm going to find detriment in the proposed move. However, there is an argument to be made that in the cases of parental alienation, there is even more of a reason to solve that problem before we allow a move.

If the child is real small, I'm more likely to find detriment because of increased concern about the bonding factor: that this child won't know her dad when she next sees him. On the other hand, when I'm looking at consistency for the child, if the child hasn't started school, I'm going to have a very different opinion than when the child is a teenager.

If dad can't afford to fly, take Amtrak, or even drive to the new location - can't even get there or bring the kids here, I'm more likely to find detriment. This can be the biggest drawback; even with airline passes there are problems. In the average case, so many people don't even have the ability to pay support, let alone buy airline tickets. Sometimes I order both parents to use services that give frequent flier miles, and coordinate them to the same airline.

Alameda: I don't believe that dad must prove detriment. I don't use a detriment yardstick. Having said that, I also don't agree with the viewpoint of lobbyists who have recently pressed for legislation that ignores detriment to the parent left behind.

What is"Necessary?"

Alameda: The cases set out assorted tests, articulated differently. No one is sure if you need a compelling reason, or an imperative reason or an essential reason, or a necessary reason, or an important reason or even a reasonable reason. But Judges really need the broadest discretion because no two of these cases are alike, and the facts and circumstances are so different each time. In the statute our group proposed, we simply folded the reason for the move - and whether there was some less egregious alternative - into the list of factors the court would look at, rather than this being a threshold test or burden.

Of course the reason for the move is important. An example of an appropriate reason may be employment-related for the mover herself, or for her new spouse. By this I mean more money, power, a true advancement in the person's career goals, something distinct from just getting job in different place. I want to know that the mover can't get a comparable job here. I'm not going to support leaving a really good job with no job prospects; I do not underwrite job-fishing expeditions.

You get all kinds of bogus reasons for moving, such as: I want to go into nursing and the only suitable school is in Pennsylvania. Translation: all I want to do is get away from this jerk. I had a case where dad, who had primary custody, wanted to quit his job and move to Phoenix, as it turned out because his girlfriend, who suddenly became his fiance when it came time for trial, wanted to. This was not compelling enough for me.

Solano A new case comes out every three months; you get a headache trying to read them all, much less coordinate them. I don't even think the Court of Appeals knows what's going on. It seems to me right now that "necessary" can be anything you want it to be in the trial court's opinion, except merely "convenient", and even that is doubtful since Burgess has been vacated.

To me, "necessary" means that there are no other alternatives locally that will meet the same criteria as the opportunity presented. Appropriate reasons may be that a job has opened up that mom would not have if she were to stay here; mom's husband has been transferred because of military orders. The move could be necessary for medical reasons, which actually came up in my courtroom.

Even though I empathize with the parent who wants to get away from the other parent, this does not rise to the level of "necessary". This is a tough call, though, where there is violence. These guys can be pussy cats around their kids, but put them with their ex-wives and it's like Hiroshima. Some cases might qualify where there is actual stalking - that situation could qualify.

Vantage point: When do you approach the analysis as if the move has already taken place?

Solano: This feels like semantics to me. The question is, do I make the kind of order that if mom moves, custody changes to dad, but if she stays, the children remain with her. In some cases mom has no choice. Say mom's spouse moves to another state; Although theoretically she could say goodbye to that marriage, maybe she has other kids with that spouse and would have to choose between those kids and these kids. That's kind of unrealistic.

If there is no choice, then I have to decide if leaving kids with dad is worse than allowing them to go with mom.

Alameda Whether mom is really going to move has got to be a factor, regardless of the reason she says she has to move. It does affect a lot of judges' analyses, and whether or not they proceed to assuming the move has already taken place. Sometimes we are surprised in the end. Sometimes even though mom insists she is moving no matter what, she backs down when you say the kid can't go.

In one case, I stayed the move for a year, so that the kid, who was five, would bond with his dad. Dad had had a serious alcohol problem, but was just getting his relationship going with his kid. Mom wanted to move to Ohio, and I wasn't convinced that she couldn't do what she needed to here at least for the time being. I said I'd look at case in another year. At the end of this period, I let her go with the kid, with an elaborate arrangement to bring kid back and let dad be back there.

Balancing - What is "Best Interests"

Alameda: The kids' best interests is in my opinion the whole ball of wax, not the "detriment", not the "necessary". Therefore, the entire analysis should begin and end here.

When doing the balancing, I consider the child's age and developmental status which will affect her relationship to her parents at different stages. This is important information to get from the evaluator.

I consider the parties' finances. I think you have to know whether or not they'll be able to carry out an order for long-distance visitation. I like the Seltzer case, which acknowledged that you have be pragmatic. This is not to say that you can base your ultimate decision on who is wealthy and who is not.

I want to know about the benefits/disadvantages to the new location; I'm not going to listen to a mom who is just picking up the kids in her VW van and driving off to New Mexico. What are the schools like? What is the neighborhood like? Is there family there? What are the advantages?

Solano: I look at motive. I look at finances. Can mom afford to stay? Can either or both afford visitation?

I look at how long mom and the kids have been in Fairfield. If the kids have never lived anywhere else, they might be afraid. If these kids are moved every year like ping pong balls, you need to put a stop to it.

I look at how old the kids are. Are they in school? Are they teenagers? Sometimes I think teenagers like their friends more than their parents. Usually they love their school, their sports activities, theater, clubs and don't want to go anywhere.

I look at the distance. We always tend to think of a move away as being to another state, but moving to San Diego is just as big a problem as moving to Reno.

Show me a well thought-out plan. If mom hasn't even been out of state in four years, I'm not going to put much stock in her tales about the new location. I want to see that she has done her homework: gone back there, communicated with school authorities, can tell me what school is available, when it starts, what is the teacher-student ratio, what is the school's reputation. When does the job start, where is it, how is it unique. I want to see a well-research scenario: realtors, homes, jobs. Have the kids been there? Is it cheaper there? What is the cost of a three bedroom 2 bath house? Don't just wait to get there to find out geez this is a mess. Show me the child's interests are being considered. Show me your plan for visitation.

You can't do these cases in a vacuum. It is hard not to be biased in some way. You are always influenced by the way you were brought up, the schools you went to, your own life experiences. You can't forget those in your day to day decisions. If mom and the kids want to move to a place you once enjoyed very much yourself, you're not supposed to think about it but it creeps in. And you'd love to be in the mountains in Colorado and not stuck in downtown Fairfield (just kidding). You have to be real careful and not make those shot gun decisions.

How important is the child's opinion? Do you hear children either in your courtroom or in chambers?

Solano: A child's opinion is not going to be pivotal unless she's a teenager.
But children must have a voice, which is why I always hope that an evaluation has been done. As a rule I won't let children testify. Once in a blue moon I'll talk to them in chambers, but you get into all kinds of problems when you allow children in the courtroom. It is a shame, because they should have some voice in a situation which will so drastically change their lives, regardless of the outcome. But can they really make that judgment?

These kids hear these wonderful pollyanna stories: we're going to rent this humongous mansion in Idaho: you'll go to ice cream socials. It's an adventure, its like saying were going to yellowstone; never mind that they are moving in the middle of winter, with no friends. Or, they hear that they'll never see their dad again. You never know what is driving them.

Alameda: It is important for kids, who are very much a part of divorce proceedings, to feel like they were heard even if they're not the big part of the reason for the final decision. Sometimes the ear must be the judge, but I haven't got a bright line figured out as to when I should and shouldn't talk to them; if you open that door every kid wants to talk to you.

I have been reluctant to talk to do this because kids are so narcissistic and self-centered. They suspect that what they think or do affects the universe: their parents split up because they didn't eat their brussel sprouts. You have to be careful, because they think that what they say will effect the move, and this can either empower them or make them afraid to say what they really think. In one case, a child really wanted to live with his dad - but felt he had to protect his mom by expressing a preference to be with her. The child did not see his dad again, and grew up with horrible guilt that he made his father go away.

But I've changed my mind about talking with kids over last three years. Participation in Kids' Turn has converted me [ed. note: see insert to this issue of Family Law News for information about the Kids' Turn program. Integral to the workshops is one question-and-answer session with a family law judicial officer.] The kids themselves have convinced me. They are very angry about their voicelessness. One of the first things they ask me is "How come kids don't get to decide? How come kids don't get to say who they want to live with?" A fourteen year old girl asked me "How do you know how I feel? How can you believe what my parents say? Don't you understand that they just twist things around all the time?"

In the last six months I've talked with three or four children, and I feel good about this. The children have good instincts, and you get a whole different slant. You must consider the children's age and developmental stage. Obviously, I am not going to talk to a five year old. But when they get to be 13, 14, 15, I think they ought to have a direct voice. I am finding that there are lots of kids who have real strong genuine feelings that they are eager and willing to express directly to the court. In these and some other cases, it can be appropriate for the court to find out directly from kids how they feel and why, and to do it in such a way that kids know that what they say is not going to be the only reason you would find for or against move. Of course you can't do this in every case because if you institutionalize this, parents will go through all sorts of machinations to twist their kids' little minds and feed you whatever they want you to hear. I never come out and say "DO YOU WANT TO LIVE WITH YOUR MOM OR YOUR DAD?" I always try to talk to kids about everything but the ultimate issue: their lives, their hobbies, schools, what they think about. Out of this stream of conversation inevitably flows how they feel about mom and dad and custody. A teenager insisted in having an audience with me. No matter how hard I tried to talk to her about other things, all she wanted to talk about were absurd reasons why she wanted to live with her mom : I like her food better, dad doesn't consult me about movies I want to see. I left her with Dad.

I let everyone know ahead of time that these are the circumstances under which I will interview children: No parents. No attorneys. The Family Court Services counselor will be present and a court reporter will record the session, but I will not allow a transcript to be produced. And then I can honestly tell the children that the interview is confidential.

Having made a decision permitting a move, how do you handle california code of civil procedure section 917.7 which mandates a 30-day stay on awards permitting a move out of state or lifting restrictions on a move out of state?

Alameda: I don't think I've ever had this precise issue come up, but I am inclined to believe that I have to power to permit the child to be absent from the state immediately upon the issuing of my order, if to do otherwise destroys the function of that order. The family court has got to have that power. It would not make sense otherwise, in the context of our day-to-day operations.

This code section has to interrelate with the Family Code and other statutes. You can't make a family court responsible for a child's best interests, responsible for making a custody order, and then cripple it with technicalities.

Solano: This has never really come up for me. Ninety-nine percent of the time the attorneys litigating don't know about this code section. The parties certainly don't seem to know about it, especially when they are in propria persona.

If you allow the move, most people are driving away the day after your decision. I would take the position that I have the ability to allow immediate temporary absence from the state, if the move must take place right away. Call it a fiction, call it going on a vacation, but I can set it for another hearing at end of the 30 days "stay" to get them back.

I guess you could say that technically the parties can appeal my ruling, and there may be a "stay", but I remain on top of it and continue to monitor case from here. I'm careful to reserve jurisdiction. At the end of a lot of these orders I specifically state that this court has jurisdiction to hear followup issues, and I restrain the moving party from filing in another state without my permission, unless the other party has moved as well.

We may be doing that wrong, but what's the sense of the order then? You could be screwing up not only the moving party, but the kids. What if there is no one here appropriate to take care of them? What if they miss the start date of their new school. They might end up in three different school systems before they are finished if mom and dad live in different areas to start with: school with mom in Fairfield until the order, then with dad in Vacaville pending the stay, then with mom in Colorado once the stay has run its course and the appellate court is not inclined to extend it.

Is there a trend to liberalize move-aways?

...for it was only when they were on the move that Americans could feel anchored in their memories. Norman Mailer, The Armies of the Night, 1968.

Alameda: Society has become a whole lot more mobile. Courts now recognize that moving is a normal part of a lot of people's lives and you have to take a more pragmatic view of moving. Not that many moved in past, and when they did, it was from Lancaster to Tehachipi. Today people are routinely moving from Los Angeles to New York.

Having said that, I don't actually agree that courts are becoming more liberal about this issue. What everybody's grappling with is what is a fair test for a court to apply as to whether mom can move with kids or not? I'm delighted that the California Supreme Court has taken Burgess up, hopefully to give us a definitive answer, will set out an intelligent test.

So far, we have a glut of cases, none of which really say the same thing. There is nothing you can point to to say this is a measuring stick. This is why there is so much discussion in the legislature; but I don't believe legislation would make it easier.

The test, however, must ultimately be gender neutral. There are influential groups lobbying for legislation that provides that the "primary caretaker" should make all of the decisions while the children are growing up. What this in effect says, in the context that custodial parents are still primarily moms, is that dads are not significant in kids' lives, and that frequent and continuing contact is bunch of bunk. I completely disagree with this approach. Both parents should be involved in their children's lives. I have four brothers who are excellent fathers. They would be outraged to be told that because they have no breasts they should have a minor role.

Solano: It's a swinging pendulum. For awhile, it was very restrictive: so you want to move? forget it. Unless you could show a million things, you never were permitted to move. I used to believe that the party moving away really had to tow the line and jump hurdles because of all those previous decisions.

Now, I think the climate has become much more liberal. The basic movement in the legislature seems to be to allow custodial parents the absolute right to move anywhere they want to, and recent decisions have liberalized the ability to move. The dynamics of the situation have changed because transportation is easier and cheaper, and moving is becoming more and more the norm.

I personally am permitting them more, unless the motivation is to avoid contact with the other parent or to purposefully diminish his frequent contact with the child. I have no qualms if the staying parent's relationship with the child has fizzled. The moveaway case is at the least a weekly event in my courtroom. More and more people are leaving the state for economic reasons, military transfers and remarriages. A lot of people are really anxious to get out of here, like lemmings going out to the sea or something. These cases are more and more frequently tried, especially in summer - and now with year-round schools it's a mess. This gets to be kind of chaotic; sometimes I feel like I should have a travel agent booth out in the hall.

If these cases were so easy, they would have settled in mediation and I wouldn't have it. I get the close calls, I get the problems. A lot of it is jealousy - I don't want them to move, I don't want my role as father diminished by new husband. There is that fear of losing your children for whatever reason. And yet, you know, when they move away and even when you make the moving party pay for it, the parent who fought so hard doesn't even want them to come back sometimes; they kind of give up.

You have to be careful not to make shotgun decisions. This type of ruling is one of the hardest things you have to do. You're going to determine where these kids' friendships are, where they'll go to school, where they are very likely to ultimately settle down themselves. We have to take these cases very, very seriously, and I do.

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