Attorney Blog
When one parent moves across the country,
do the kids get to go with?
By Gary Smith
The law on “move-away” cases continues to morph in California. In the case of F.T. vs. L.J.,[1]the Fourth District Court of Appeal (Orange County) [March 8, 2011] spent 12 pages going over all the cases which have been decided in the last few years, and then sent the case back to the trial court to decide the issue again, based on the appellate court’s discussion of the law. This is a good review of the current law on move-away situations, but leaves us without any clear rules on when even the primary-custody parent can move away with the children.
The trial court here refused to allow Dad to move with the child. I’ll bet the trial court lets him move away second time around, even though the appellate court disagreed with some of Dad’s legal arguments on appeal. Here are the highlights:
No, Dad doesn’t have an automatic right to move to Washington with his son. However, Mom (who has been convicted of battering the child!) doesn’t need to show or prove anything to keep the child here. Hello? How does this happen? Section 3044 of the Family Law Code specifically says that if the court finds a person has committed domestic violence against a child within the last five years, there is a rebuttable presumption that an award of sole or joint physical custody is detrimental to the best interest of the child. The appellate court dances around this by saying it changes the burden of proof, but not the best-interests test. (She was just trying to teach the child a lesson—not wise, but not all that bad after all??)
Keep in mind that the appellate court reversed on the basis of an abuse of discretion by the trial court. You have to really abuse that discretion for an appellate court to interfere! But it appears the abuse was one of application of law and not of facts.
The appellate court points out that, absent a final existing judicial custody determination, there are no presumptive rights when it comes to children. Thus, the test is the “best interests” of the children test. (It is difficult to craft a custody order so that the court will accept it as really final.)
The appellate court goes through a long list of factors the trial court must consider when determining whether a move away is in the best interests of the child. The trial court, in this case, did not properly consider the effects of relocation on the “best interests” of the minor child. So, the appellate court says, “yes, trial judge, you purported to use the best interests test, but you misunderstood the proper legal standards to be applied in determining what is in the best interests.”
This leaves in place the need for an evidentiary hearing any time a move away is in the offing. It also mandates that any lawyer involved, for whichever side, must look at all the “best interests” factors and present cogent admissible evidence on all of the factors which favor his client’s position.
[1]201 DJDAR 5001 is the temporary citation until publication.
SS&B Wins Appeal in Million-Dollar Separate Property Case!
On May 29, 2008, the Court of Appeals, 4th Appellate District, filed an opinion regarding the case In Re Marriage of Henry and Rebecca Isensee. The Court of Appeals affirmed the lower court’s ruling in favor of SS&B client, Henry Isensee. Mr. Isensee retained SS&B to represent him in the dissolution of his 7-year marriage. Mr. Isensee was 86 years old when he married Rebecca who was 58 years old. Both parties executed a comprehensive prenuptial agreement that confirmed Mr. Isensee’s property, valued at almost 1 million dollars, would remain his separate property. However, over a short period of time all of Mr. Isensee’s property was put into joint name until, ultimately, almost every dime of his life savings were put into the sole name of Rebecca Isensee. Superior court commissioner, Walter D. Posey, agreed with the arguments presented by SS&B and ruled that Rebecca Isensee exerted undue influence over Mr. Isensee. Therefore, the court confirmed Mr. Isensee’s life’s savings to him as his sole and separate property. Rebecca Isensee appealed the decision and the Court of Appeals affirmed the lower court and Mr. Isensee retained his life's savings.
