by Enrique A. Monteagudo, J.D.
On April 29, 2004, during our monthly meeting, SDFLCC Vice President Barney Connaughton, Esq. announced the news. The LaMusga case had been decided. With this cutting-edge opinion released only hours before, not much was known about it other than the trial court decision had been affirmed and the Burgess rule had been clarified. The Supreme Court explained that the policy of Burgess was not meant to be a broad authorization of move-aways where the noncustodial parent failed to carry the heavy burden of proving “bad faith” or “detriment making a custody change essential”. Rather, Burgess was a decision in support of deference to the “wide discretion” given to the trial courts. More importantly, the LaMusga 6-1 majority held that the focus of a move-away analysis should not be the presumptive rights of the moving parent, but instead, the needs and concerns of the child. This was a good day for kids! This article will give an overview of Justice Moreno’s majority opinion, Justice Kennard’s dissent, and will identify what may in the future be called the “LaMusga move-away test” (pronounced la-mu-SHAY).
Trial Court’s Wide Discretion
In his majority opinion, Justice Moreno first clarified the meaning of Burgess, reconciling it with the recent legislative change to Family Code §7501. Section 7501 both authorizes the court to restrain move-aways and affirms Burgess as state policy. Here, the Supreme Court generally held that the ruling of Burgess was meant to reaffirm the trial court’s wide discretion in move-away cases to fashion a parenting plan that will reflect the best interest of the child. The LaMusga Court also emphasized that the circumstances surrounding move-aways are often “heart-wrenching”, “reminding us that this area of law is not amenable to inflexible rules.”
After articulating the Burgess policy of the trial court’s wide discretion in move-away cases, the majority went on to illustrate it with several appellate decisions that applied the rules stated in Burgess. In eight of ten decisions, the Court of Appeal upheld the decision of the trial court, and deferred to its sound judgment in considering all factors relevant to the particular child’s best interest. With these cases, the majority offered a spectrum of fact patterns where the relevant factors: favored denying a move, “only slightly favored” a move, and favored allowing a move. Next, the majority distinguished the two cases where the trial court’s exercise of discretion was reversed. The Court explained that those cases involved “unusual circumstances”. In one reversed case, the trial court order resulted in separating four siblings. In the other reversed case, the trial court had failed to determine whether the proposed move would be detrimental to the welfare of the children. [Remanded for evidentiary hearing]. Together, these cases showed the Burgess holding [permitting a move-away] is to be narrowly construed to its facts, and generally stands for the policy of deference to a trial court’s principled balancing of all relevant considerations unique to each case.
Interestingly, although each illustrative case had unique facts, certain themes reoccurred often. Specifically, the courts of appeal were often faced with protecting the child’s custodial stability with his/her primary caretaker at the expense of physically separating the child from the noncustodial parent. The majority, here, repeatedly focused on the fact that the custodial parent, in those cases allowing the move-away, was supportive of the child’s relationship with his/her other parent. The majority cited and seemed to place great weight on the statutory policy of assuring that children have frequent and continuing contact with both parents, and encouraging parents to share the rights and responsibilities of child rearing. (Fam. Code § 3020 & § 3040). The majority also placed great weight on whether or not the custodial parent had interfered with the child’s relationship with the noncustodial parent. In other words, the LaMusga majority could also be interpreted as advising: “if a custodial parent wants to move, there should be a history of fostering the child’s relationship with his/her other parent.”
Detriment - Best Interest
After explaining how the appellate decisions subsequent to Burgess indeed support the policy of the trial courts’ wide discretion in dealing with move-away cases, the LaMusga Court went on to clarify the “detriment test” of Burgess and its relation to the need for continuity and stability in custodial arrangements. Under Burgess, a change of custody in a move-away case requires that the child will suffer detriment rendering the change “essential or expedient” The Court explained that the “detriment test” does not require the noncustodial parent to carry the great burden of proving a change of custody is “essential”. Rather, the noncustodial parent need only persuade the court that some detriment will occur, thus triggering a “changed circumstances” de novo review of the custody order. Then, the noncustodial parent must show that a change of custody would be in the child’s best interest.
In supporting the trial court’s determination of the LaMusga boys’ best interest, the Court first affirmed the importance of existing custodial relationships in general. Then it explained, the proposed move would be “extremely detrimental” to their welfare because it could result in the loss of their relationship with their noncustodial parent. Again, the majority focused on the custodial parent’s failure to foster and encourage a healthy relationship between the children and their other parent. The majority held: while the loss of a child’s relationship with his/her noncustodial parent does not “mandate” a change of custody, it is sufficient reason where it is in the children’s best interests in light of all the relevant factors. Thus, the Burgess “detriment test” can be met, disallowing a move-away of the child, where the trial court finds some detriment will occur and a custody change is in a child’s best interest.
Bad Faith - Trial Court Can Consider Reasons for Move
Additionally, the Court addressed whether trial courts may consider the custodial parent’s reasons for a proposed move. The majority held that a trial court may consider all the reasons for the proposed move, even where there exist good faith reasons for the move. The Court cautioned against “absolute concepts of good faith versus bad faith” as “human beings may act for a complex variety of sometimes conflicting motives.” In discussing the subtleties of the instant move, Justice Moreno pointed out, “on the surface” the reasons for the move were not in bad faith, but “underneath”, however, the motive to get away from the noncustodial parent had always been present. Nonetheless, the majority made it clear that the reasons for the move are only one factor to consider in light of all the relevant factors. Further, the Court declined to extend this analysis to cases where a motive to minimize parental contact results from an existing pattern of family abuse or substance abuse problems.
With this decision, the Supreme Court clarifies Burgess to stand for the general proposition: trial courts have wide discretion to exercise sound judgment when deciding move-away cases. Further, it specifies that a de novo custody review is appropriate where some detriment to the child can be shown, and it strongly encourages custodial parents to encourage their children to have relationships with the other parent, where appropriate.
In his dissenting opinion, Justice Kennard discussed the detriment caused by changing custody from the child’s primary caretaker to his/her other parent. He first pointed out that the Supreme Court has stressed the “paramount need for continuity and stability in custody arrangements.” Next he stated “the trial court’s explanation for its ruling provides no assurance that the trial court gave any weight to the importance of continuity and stability in custody arrangements.” While the dissent did not claim that the trial court improperly weighed the children’s relationship with the noncustodial parent as more important than their need for custodial stability, it did warn that “all exercises of discretion must be grounded on in reasoned judgment guided by [the applicable] legal principles and policies”. On the premise that the trial court did not even consider the factor of custodial stability, Justice Kennard thus concluded the trial court abused its discretion.
Although, the dissent opposes “judicial discretion … without restraint,” this is not inconsistent with the majority opinion. As the majority acknowledges, although “we must permit our superior court judges […] to exercise their discretion to fashion orders that best serve the interests of the children,” such discretion must be guided by statute and legal principle. Additionally, the majority stated: “there is nothing in the record before us that indicates that the superior court failed to consider the children’s ‘interest in stable custodial and emotional ties’.” [Justice Kennard’s response was that “it is equally true that nothing in the record indicates that the court did consider this interest.”]
In effect, the dissent differs only on procedural issues, and finds much support in the majority opinion. Since the majority agrees with the importance of custodial stability, at issue is whether a reviewing court can impute reasons for a holding where they cannot be found in the record. The majority holds that a reviewing court can impute rationale, whereas the dissent concludes otherwise. Nonetheless, Justice Moreno adds: “In future cases, courts would do well to state on the record that they have considered this interest in stability.”
Finally, the LaMusga opinion goes far to increase judicial efficiency and predictability by providing an eight-part test for move-away cases. The majority stated: “Among the factors that the court should ordinarily consider when deciding whether to modify a custody order in light of the custodial parent's proposal to change the residence of the child are the following:”
1) the children's interest in stability and continuity in the custodial arrangement;
2) the distance of the move;
3) the age of the children;
4) the children's relationship with both parents;
5) the relationship between the parents including, but not limited to, their ability to communicate and cooperate effectively and their willingness to put the interests of the children above their individual interests;
6) the wishes of the children if they are mature enough for such an inquiry to be appropriate;
7) the reasons for the proposed move; and
8) the extent to which the parents currently are sharing custody.
Clearly, this test was not intended to be exclusive, but it is a baseline from which trial courts should start their analysis. Further, it should serve as an aid to both parents and practitioners, presumably by harmonizing their arguments. Accordingly, the trial court’s difficult task of balancing all relevant competing interests will be made easier, or at least more efficient, where the parties are speaking to the same points.
In conclusion, LaMusga is a good case for kids. It keeps the court’s focus on a child’s interests. It encourages parents to share. It recognizes the importance of, and affirmatively protects, a child’s interest in having both parents. And finally, it has the potential to reduce domestic conflict by giving greater predictability in the family courts.