BILL ANALYSIS
SENATE JUDICIARY COMMITTEE
Senator Joseph L. Dunn, Chair
2005-2006 Regular Session
SB 1482 S
Senator Romero B
As Amended April 17, 2006
Hearing Date: May 9, 2006 1
Family Code 4
GMO/BCP:cjt 8
2
SUBJECT
Child Custody: Move-away Cases
DESCRIPTION
The bill would create a statutory presumptive right
affecting the burden of proof for a custodial parent to
change the residence of the child.
The bill would require a noncustodial parent to make a
prima facie showing of the harm the child will suffer as a
result of the relocation, which would necessitate a change
in custody. It would provide that normal incidences of
moving, as specified, would not suffice to require an
evidentiary hearing on the relocation.
Finally, this bill would make the rules on the prima facie
showing and the need for an evidentiary hearing applicable
to an existing custody arrangement, whether established by
court order, stipulation, de facto arrangement, or
otherwise.
BACKGROUND
Move-away cases involve instances where the custodial
parent chooses to relocate with the minor child.
Noncustodial parents may be faced with a situation where
their child moves too far away, such as out of state, so
that their visitation rights or custody arrangements are
substantially affected. Over the past decade, much case
law has developed on the right of custodial parents to
(more)
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relocate their children away from noncustodial parents.
In 1996, the California Supreme Court decided In re
Marriage of Burgess (1996) 13 Cal.4th 25, which clarified
the standard for move-away cases. That court stated that
modification of custody in move-away cases, as in every
other case, requires a showing of a "change of
circumstances so affecting the minor child that
modification is essential to the child's welfare." [In re
Marriage of Burgess (1996) 13 Cal. 4th 25, 37.] The
holding, combined with existing Family Code provisions,
requires any order modifying custody based on change of
residence to be based upon detriment to the child as a
result of the move. SB 156 (Burton), Ch. 674, Stats. of
2003 declared that In re Marriage of Burgess was the public
policy of the State of California. This bill would not
affect this declaration of public policy.
Burgess, as well as subsequent cases Montenegro v. Diaz
(2001) 26 Cal.4th 249, In re Marriage of Navarro and La
Musga (2004) 32 Cal. 4th 1072, and In re Marriage of Brown
and Yana (2006) 37 Cal. 4th 947, are discussed collectively
in Comment 2.
CHANGES TO EXISTING LAW
1. Existing law states that a custodial parent has a
right to change the residence of a child, subject to the
court's power to restrain a removal that would prejudice
the rights or welfare of the child. [Fam. Code 7501.]
Existing case law places the initial burden on the
noncustodial parent to demonstrate that a change in
residence would result in detriment to the child
sufficient to warrant modification of custody. After
that initial burden is met by the noncustodial parent,
existing case law requires the court to determine whether
a change in custody is in the best interests of the
child. [In re Marriage of Burgess (1996) 13 Cal.4th 25;
In re Marriage of Navarro and La Musga (2004) 32 Cal. 4th
1072, 1078; Fam Code 3011.]
Existing law states that the Burgess ruling is the public
policy and law of the state. [Fam. C. 7501(b).]
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This bill would instead state that the custodial parent
has a presumptive right affecting the burden of proof to
change the residence location of the child.
This bill would place the burden of proof on the
noncustodial parent to demonstrate both that a change in
residence would result in detriment to the child
sufficient to warrant modification of custody, and that a
change of custody is in the best interests of the child.
2. Existing case law does not require a court to hold an
evidentiary hearing in move-away cases where the
noncustodial parent's evidence of detriment to the child
"is insubstantial in light of all the circumstances
presented in the case, or is otherwise legally
insufficient to warrant relief." [In re Marriage of
Brown and Yana (2006) 37 Cal. 4th 947, 962.]
This bill would require a noncustodial parent seeking to
restrain a child's relocation to make a prima facie
showing of specific facts showing the detriment the child
will suffer as a result of relocation. Additionally,
this bill would require those facts to demonstrate that a
change in custody is necessary.
This bill would provide that evidence of normal
incidences of moving would be insufficient, in and of
themselves, to establish detriment to the child, and on
that basis no evidentiary hearing would be required
regarding the relocation.
3. Existing case law , Montenegro v. Diaz, holds that the
changed circumstances rule in move-away cases applies to
final judicial custody determinations and that a
stipulated custody order is a final judicial custody
determination for purposes of the changed circumstance
rule only if there is a clear, affirmative indication the
parties intended such a result.
This bill would apply the changed circumstances rule, as
well as the burden of proof and evidentiary hearing
thresholds, to existing custody arrangements, whether
established by court order, stipulation, de facto
arrangement, or otherwise.
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COMMENT
1. Stated need for the bill
According to the author, under existing law, the courts
are misallocating the burden of proof in relocation
cases, and compelling a child's custodial parent to
undergo a lengthy and expensive trial when there is scant
evidence from the noncustodial parent that the proposed
move would be harmful to the child. The author believes
that the California Supreme Court's decision in In re
Marriage of Navarro and La Musga (2004) 32 Cal. 4th 1072
undermines the Burgess decision which was codified in
2003 as the law of the state.
SB 1482, the author states, seeks to reestablish the
presumptive right of custodial parents to relocate after
a divorce. "This bill seeks to provide clear guidance
for when a relocation would be prohibited, focusing on
the welfare of a child and preserving the stability of
the existing custodial placements?This bill will achieve
the above aims by codifying Part B of the California
Supreme Court decision In re Marriage of Brown and Yana
(2006), which discusses and clarifies the showing
required by a noncustodial parent to warrant a trial on
the relocation issue."
2. Burgess, La Musga, Yana and Montenegro are not
inconsistent
After Burgess, several cases further clarified the
detriment to the child standard in these move-away
situations. The two most relevant to SB 1482 are In re
Marriage of Navarro and La Musga, supra, and In re
Marriage of Brown and Yana (2006) 37 Cal. 4th 947. La
Musga clarified that the "detriment to the child's
relationship with the noncustodial parent . . . caused by
the proposed move, when considered in light of all the
relevant factors, may warrant denying a request to change
the child's residence." [32 Cal. 4th 1072, 1097.] Thus,
after La Musga, "just as a custodial parent does not have
to establish that a planned move is 'necessary,' neither
does a noncustodial parent have to establish that a
change of custody is 'essential' to prevent detriment to
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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." [Id. at 1078.]
Advocates for protecting the custodial parent's
relocation rights saw this as a weakening of the Burgess
holding. Others saw this as strengthening the court's
ability to distinguish cases and make relocation
decisions in the best interests of the child or children.
The second case, Yana, held that no evidentiary hearing
is required by a trial court unless the noncustodial
parent makes a prima facie showing of detriment to the
child as a result of the proposed move. The original
version of SB 1482 sought only to codify the holding in
Yana; however, recent amendments expanding the scope of
SB 1482 revisit the holding of La Musga, supra.
In fact, SB 1482 in its current form, if enacted, would
also abrogate another Supreme Court case, Montenegro v.
Diaz (2001) 26 Cal.4th 249. Montenegro affirmed that
the changed circumstances rule applies to "final judicial
custody determinations" and that a stipulated custody
order is a final judicial custody determination for
purposes of the changed circumstances rule only if there
is a clear, affirmative indication the parties intended
such a result." (See Comment 4)
Some proponents of SB 1482 argue that the bill is
necessary in order to ensure that trial and appellate
courts are faithful to the Supreme Court's relevant
precedents. They state that "codification is imperative,
as the lower courts have often ignored the commands of
the Supreme Court through misapplication of the
principles SB 1482 spells out." [Letter from Carol S.
Bruch, Professor Emeritus of the UC Davis Law School,
dated April 28, 2006.] However, the statement ignores
the fact that by labeling "normal incidences of moving,"
such as increasing the distance from the noncustodial
parent, change of schools or neighborhoods, or alteration
of the custody or visitation schedule, as non-factors in
the context of the changed circumstances rule, the bill
ignores, or attempts to discredit, the Supreme Court's
decision in La Musga.
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3. SB 1482 would recodify the presumptive right to
relocate articulated by Burgess, reduce the impact of La
Musga, barely codify Yana and abrogate Montenegro
SB 1482 would give the custodial parent a presumptive
right affecting the burden of proof to change the
residence of the child, already the law under Burgess and
its progeny. Additionally, SB 1482 would require a prima
facie showing by the noncustodial parent of facts
demonstrating harm to the child as a result of a proposed
relocation that necessitates a change in custody. No
evidentiary hearing would be required if the noncustodial
parent's asserted detriment to the child consists of
normal instances of moving (factors enumerated in Burgess
and La Musga as relevant to the court's determination of
the best interests of the child). Finally, the rules
articulated here would apply to existing custody
arrangements, whether established by a court order, by
stipulation, de facto arrangement, "or otherwise,"
(abrogating the Montenegro decision).
Thus, in one fell swoop would SB 1482 deal with the four
major cases affecting move-away cases decided by the
Supreme Court so deliberately over the last 10 years.
The Judicial Council, as well as the California Judges
Association, is opposed to SB 1482. They argue that SB
1482 would unduly limit the discretion of the court in
child custody cases to make decisions in the best
interest of the children involved. While current law, as
expressed in statute as well as the series of Supreme
Court cases, recognizes that a parent who has primary
custody pursuant to a final custody order has the right
to relocate with his or her child, it also imposes on the
other parent a requirement to make a showing that the
move would be detrimental to the child before the court
can consider a change in the custodial arrangement. SB
1482, the Judicial Council states, would severely limit
the authority of the court to consider the necessity of
making a custodial change in response to an intended move
by a custodial parent.
In particular, the Judicial Council points out that while
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SB 1482 is sponsored by the same group that sponsored the
bill that declared Burgess to be the public policy of the
state, many of the provisions in SB 1482 are at odds with
the decision in Burgess, and fail to strike the
child-centered balance made by the Burgess court:
SB 1482 would bar the court from granting an
evidentiary hearing based solely upon the
distance of the move (regardless of how far),
changes in schools or neighborhoods, or an
alteration of the custody and visitation
schedule. Some of these prohibited categories
are exactly the kinds of issues that the Burgess
court stated were appropriate for a court to
consider in determining whether a relocation was
sufficiently detrimental to warrant a change of
custody. The court needs to retain the
discretion to determine whether these "incidences
of moving" are sufficient to warrant an
evidentiary hearing based on the facts presented
in an individual case.
4. SB 1482 would abrogate the court's unanimous holding
in Montenegro, place temporary orders and short-term de
facto arrangements on equal footing with final judicial
custody orders or by stipulation of the parties
The opponents are particularly troubled by the apparent
intent of SB 1482 to abrogate the Supreme Court's
unanimous holding in Montenegro, that held the court is
required to make child custody determinations using a
"best interests of the child standard" until a final
custody order has been entered. Once a final order has
been entered, a party seeking to change the custody of
the child must show that there has been a substantial
change of circumstances that supports the court reopening
the custody determination. But prior to that point the
court is required to review the case using the best
interest standard.
The Judicial Council states,
This principle is an important one to preserve
because it allows the court and the parties to
make short-term arrangements upon separation
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without a full consideration of the best
arrangement for the child on a long term basis.
SB 1482 would undermine this principle? It would
create a disincentive for parties to voluntarily
enter into any agreement that might allow one
party to relocate under the terms of section 7501,
and for those parties who are able to temporarily
achieve the status of a custodial parent and are
not acting in the best interest of the child, it
would create an incentive to relocate with the
child to strengthen the strategic position of the
parent in the custody litigation.
The California Judges Association echoes this concern,
stating that "[i]t is vital to maintain clear and uniform
standards in this area of the law. SB 1482 fails to
address the distinctions between initial decisions and
modifications to final orders. The bill also does not
reflect the differences between the best interest and
changed circumstances standards. Finally, SB 1482 would
restrict judicial discretion to make appropriate orders
in these custody cases."
The Family Law Section of the State Bar also opposes the
bill on the basis that relocation (move-away) law is a
very complex area and because of its complexity, the
courts are the best qualified to interpret under existing
law what is best for a particular child or family
situation it is reviewing and how to best interpret
applicable case law.
SHOULD THE COURTS BE ALLOWED TO APPLY THEIR DECISIONS IN
BURGESS, LA MUSGA, YANA, AND MONTENEGRO ON A CASE-BY-CASE
BASIS?
5. Supporters' arguments
SB 1482 is supported by many women's groups. They
believe that freedom to relocate is of paramount
importance to custodial families, "most of which are
headed by women." Considering that unmarried women and
their dependent children are the poorest of the poor in
California, compounded by the state's poor economic
outlook, the increasing demands for mobility within the
employment market, sponsor California Women's Law Center
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states, emphasize the critical need for the courts to
have clear statutory guidance for resolving cases in
which relocation by a custodial parent and child is
opposed by a noncustodial parent. "SB 1482 promotes
judicial efficiency and consistency, as well as promotes
the well-being of families, by creating legal standards
for move away cases, including codifying basic principles
for deciding these cases as established by case law."
Other supporters join the issues raised by SB 1482 to
domestic violence, stating that its provisions, while not
directly addressing domestic violence, are "critical to
ensuring the safety and overall well-being of domestic
violence victims who have courageously left their
abusers." [Letter from Haven Hills Inc., dated April 12,
2006.] They argue that after separation, abusers often
use the family court system as a "symbolic battleground"
on which to continue to abuse and punish their victim and
to drain them both emotionally and financially, citing
the American Psychological Association Presidential Task
Force on Violence and the Family, Violence and the Family
(1996) and Issues and Dilemmas in Family Violence (1998)
studies. They assert that SB 1482 helps ensure that
domestic violence victims will not be forced to engage in
frivolous, costly and prolonged litigation with their
batterers over relocation issues.
Support: National Council of Jewish Women (Los Angeles);
Sojourn; California Commission on the Status of
Women; Coalition for Family Equity; California
National Organization for Women (California NOW);
California Partnership to End Domestic Violence;
Haven Hills, Inc.; Coalition to Abolish Slavery and
Trafficking (CAST); Marin Abused Women's Services;
Women For; BPW USA; Santa Clara County Domestic
Violence Advocacy Consortium; Janet Bowermaster,
Associate Dean of California Western School of Law;
Carol S. Bruch, Professor Emeritus at the UC Davis
School of Law
Opposition: Judicial Council; California Judges
Association; Family Law Section of the State Bar
of California; California Psychological
Association; California Alliance for Families and
Children; Alliance for Children Concerned About
Move-Aways; California Parents United, Inc.; San
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Diego Men's Center; National Coalition of Free Men
San Diego; Men's Advocacy Network; 10 individual
letters; form letters from over 1,000 individuals
HISTORY
Source: California Women's Law Center
Related Pending Legislation: None Known
Prior Legislation: SB 730 (Burton, 2004), died in the
Assembly Judiciary Committee.)
SB 156 (Burton, Ch. 674, Stats. 2003)
codified Burgess into
Family Code 7501.
SB 1367 (Burton, 2004), died in the Senate
Judiciary Committee.)
SB 504 (Wright, 1995), died in the Senate
Judiciary Committee.
SB 1238 (Watson, 1995-06), would have
authorized a study of move-away cases. Died
on file, after passing in Senate Judiciary
Committee and Senate Appropriations
Committee.
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