Move-Away When Child Already Out-of-State
**Partial Publication Only**
Sarah B. v. Floyd B.
Mother and father began dating and shortly after found that mother was pregnant; mother was in the air force in Texas, father lived in San Diego. Mother left the air force and moved to San Diego before the baby was born. Approximately six months later, mother and baby moved to Los Angeles for six month active duty tour. She and baby returned to San Diego and approximately one year later mother got a new job, with benefits and health insurance for the baby. Mother and father began fighting; father refused counseling. In February 2006, mother left father by taking baby and driving to sister's house in Colorado.
In March 2006, mother filed Petition to Establish Parental Relationship in San Diego County; the parties went to mediation later that month but could not agree on a custody plan. The mediator recommended that baby reside primarily with mother. In May 2006, court entered judgment of paternity establishing father's parentage and temporary custody orders allowing mother to keep baby in Colorado; father was granted visitation. Court delayed the custody determination pending a custody evaluation. In October 2006, court heard testimony from both parents and father's friend and considered the evaluation. The court granted primary physical custody to mother with visitation to father every other week (half in San Diego, half in Colorado).
The court found that there was a more mature and stable relationship between mother and daughter.
Father argues that trial court erred in not finding that mother was in violation of the standard temporary restraining orders (TRO) when she moved the child to Colorado; that court should not have adopted reports of the mediator and child custody evaluator; and that the court failed to apply the move-away standard appropriately.
Custody and visitation orders are reviewed for abuse of discretion under the "best interest of child" standard.
Issues:
1.) Did mother violate TRO that took affect when she filed the paternity action that prevents either parent from taking child out of state without written permission of other parent or by court order (Family Code, Section 7700; Uniform Parentage Act)? Father argues that mother should have been required to return child to Colorado when temporary orders were issued. HELD: No - the statute does not state that a child who is already residing in another state when the petition is filed must be returned to California. In the absence of a court order or custody decree, both parents have equal right to custody (Family Code, section 3010 and 7500). Cline v. Sup. Ct. (1982) 135 Cal.App.3d 943. Furthermore, even if the TRO was violated, custody is determined in "best interest of child"; therefore, court could determine that it was in child's best interest to not be returned to California.
2.) Did CA courts have jurisdiction of custody of child living out of state? Yes. CA Courts can make initial custody determination as long as child lived in California within six months before the action is filed and at least one of the parents still lives there. (Family Code, section 3421)
3.) Did court apply the "move-away" standard incorrectly? Father argues that court failed to consider the child's interest in stability and continuity; distance of the move; age of child; relationship with both parents; relationship between parents; reason for the move; and extent of current custody. HELD: court applied the correct standard. As this was an initial permanent custody determination (and thus not a true "move away" case), the court had to devise a parenting plan in the child's best interest. Pursuant to Family Code, section 7501, parent can change residence of child unless the removal would prejudice the rights and welfare of the child. See, In Re Marriage of Burgess (1996) 13 Cal. 4th 25. The record showed that court did consider best interest and commented upon which parent would be more likely to aid in the child's relationship with the other.
4.) Did court apply "best interest" standard? Yes, court concluded that mother had a more stable and mature bond with child and that father might have trouble dealing with pressure of raising a young girl. In essence, it would be more detrimental to remove baby girl from mother than from father.
Sarah B. v. Floyd B.
Mother and father began dating and shortly after found that mother was pregnant; mother was in the air force in Texas, father lived in San Diego. Mother left the air force and moved to San Diego before the baby was born. Approximately six months later, mother and baby moved to Los Angeles for six month active duty tour. She and baby returned to San Diego and approximately one year later mother got a new job, with benefits and health insurance for the baby. Mother and father began fighting; father refused counseling. In February 2006, mother left father by taking baby and driving to sister's house in Colorado.
In March 2006, mother filed Petition to Establish Parental Relationship in San Diego County; the parties went to mediation later that month but could not agree on a custody plan. The mediator recommended that baby reside primarily with mother. In May 2006, court entered judgment of paternity establishing father's parentage and temporary custody orders allowing mother to keep baby in Colorado; father was granted visitation. Court delayed the custody determination pending a custody evaluation. In October 2006, court heard testimony from both parents and father's friend and considered the evaluation. The court granted primary physical custody to mother with visitation to father every other week (half in San Diego, half in Colorado).
The court found that there was a more mature and stable relationship between mother and daughter.
Father argues that trial court erred in not finding that mother was in violation of the standard temporary restraining orders (TRO) when she moved the child to Colorado; that court should not have adopted reports of the mediator and child custody evaluator; and that the court failed to apply the move-away standard appropriately.
Custody and visitation orders are reviewed for abuse of discretion under the "best interest of child" standard.
Issues:
1.) Did mother violate TRO that took affect when she filed the paternity action that prevents either parent from taking child out of state without written permission of other parent or by court order (Family Code, Section 7700; Uniform Parentage Act)? Father argues that mother should have been required to return child to Colorado when temporary orders were issued. HELD: No - the statute does not state that a child who is already residing in another state when the petition is filed must be returned to California. In the absence of a court order or custody decree, both parents have equal right to custody (Family Code, section 3010 and 7500). Cline v. Sup. Ct. (1982) 135 Cal.App.3d 943. Furthermore, even if the TRO was violated, custody is determined in "best interest of child"; therefore, court could determine that it was in child's best interest to not be returned to California.
2.) Did CA courts have jurisdiction of custody of child living out of state? Yes. CA Courts can make initial custody determination as long as child lived in California within six months before the action is filed and at least one of the parents still lives there. (Family Code, section 3421)
3.) Did court apply the "move-away" standard incorrectly? Father argues that court failed to consider the child's interest in stability and continuity; distance of the move; age of child; relationship with both parents; relationship between parents; reason for the move; and extent of current custody. HELD: court applied the correct standard. As this was an initial permanent custody determination (and thus not a true "move away" case), the court had to devise a parenting plan in the child's best interest. Pursuant to Family Code, section 7501, parent can change residence of child unless the removal would prejudice the rights and welfare of the child. See, In Re Marriage of Burgess (1996) 13 Cal. 4th 25. The record showed that court did consider best interest and commented upon which parent would be more likely to aid in the child's relationship with the other.
4.) Did court apply "best interest" standard? Yes, court concluded that mother had a more stable and mature bond with child and that father might have trouble dealing with pressure of raising a young girl. In essence, it would be more detrimental to remove baby girl from mother than from father.
Labels: best interest, child custody, move-away, temporary restraining order
