In re Marriage of LaMusga
Reduced contact with noncustodial parent is a factor that can justify a custody change . . .
In reversal, California Supreme Court majority (6-1) holds that noncustodial parent who opposes custodial parent's move must show that move would cause detriment to child, after which trial court must evaluate all relevant factors to determine whether it is in child's best interests to change custody

In re Marriage of LaMusga
(April 29, 2004)

California Supreme Court, S107355, 32 C4th 1072, 12 CR3d 356, 88 P3d 81, FIRST ALERT #F-2004-1143, per Moreno, J (George, CJ, Baxter, Werdegar, Chin, Brown, JJ, concurring; Kennard, J, dissenting). First District Court of Appeal: reversed and remanded with directions. For appellant-mother: Tony Tanke, CALS, (530) 758-4530. For respondent-father: Garrett Dailey, CFLS, (510) 465-3920. CFLP §L.138.60.

Susan and Gary LaMusga (" la mooshay ") were married in October 1988. Their son Garrett was born May 5, 1992; his brother, Devlen, joined the family two years later on the same day. Shortly after the boys' birthday in 1996, Susan filed a disso petition in which she asked for sole physical custody of the kids, who were living with her in the family home. In his response, Gary asked for joint legal and physical custody. When the parents disagreed over visitation, they stipulated to having a custody evaluation done by a licensed psychologist, Dr. Philip Stahl. Meanwhile, the trial court ordered, in accordance with the parties' stip, that Gary would have the boys with him for four hours on Wednesdays and seven hours on Sundays. Susan later reported that the kids were detrimentally affected by spending time with Gary; according to her, Garrett would become " `overly aggressive, disorganized, unfocused, and . . . regress in toilet training,' " while Devlen would " `develop a facial tick, a stutter, and a squint.' "

On October 10, 1996, Dr. Stahl issued a report in which he noted that there " `has been a great deal of verbal hostility' " between Susan and Gary, and that they admitted a total lack of communication or trust with each other. Dr. Stahl observed that the strife between them had, at times, reached the point of pushing and shoving. Susan, he explained, believed that Gary's home was unsafe, and that his care of the boys was inadequate and unresponsive; she wanted them to spend less time with him, not more. Complicating things further, Dr. Stahl continued, was Susan's desire to move to Cleveland with the kids; Gary opposed the move because he feared that he would " `end up having no relationship with his boys whatsoever.' " Susan and Gary, he reported, were " `good enough' " parents, but their unrelenting conflict was the most significant problem facing the children. That conflict, Dr. Stahl went on, would be alleviated if Susan was allowed to move, but she had not shown convincingly that she would ensure contact and visitation between Gary and the boys once that took place. As it was, the bond between Gary and his sons was strong, but the psychologist feared that it would not stay that way, given the ages of the boys and the distance between their current home and Cleveland. 

After a hearing on November 14, 1996, the trial court awarded Susan and Gary joint legal custody, with Susan to have primary physical custody. The court also ordered a gradual increase in visitation for Gary over the course of several months. On December 31, 1997, it entered the parties' status-only disso judgment. In July 1998, the parents stipulated to vacation visitation that gave Gary custody of the kids for one week each in July and August, scheduled a week for Susan in the same months, and retained the existing schedule at all other times. In December 1998, acting on Gary's OSC, the court set a holiday schedule for visitation. Susan subsequently married Todd Navarro; she gave birth to their daughter on September 16, 1999. Gary remarried as well; his new spouse, Karin, had a daughter from a prior marriage.

On February 13, 2001, Susan filed an OSC, seeking an order permitting her to move with the boys to Cleveland, where she had family and her husband had been offered a higher-paying job. Along with the OSC, she submitted a declaration in which she stated that Dr. Stahl was doing a new evaluation regarding an increase in Gary's visitation. Not surprisingly, Gary opposed the motion, and asked the court to grant him primary custody if it allowed the move. In his supporting declaration, Gary said that Susan's ongoing attempts to alienate him from his sons could mean that he would lose them forever if they moved. On February 26, 2001, Dr. Stahl filed a supplemental report that focused not on Susan's proposed move, but on Gary's relationship with the boys. The psychologist stated that the parents' " `high conflict divorce' " was causing the kids to feel alienated and to have mixed feelings toward their parents. The boys were " `very critical' " of Gary, but mostly in " `rather vague terms.' " They seemed to enjoy his company, however, and to be affectionate with him. Susan appeared to be contributing to their alienation from Gary, albeit unconsciously, while Gary's self-centeredness made him unable to deal effectively with their feelings. Dr. Stahl predicted that both boys would have " `significant struggles emotionally, especially with their peers, and with authority figures.' " In the end, he recommended that Gary's visitation be increased to longer blocks of time, and he raised the possibility, if the situation did not improve, that he might recommend either true joint custody or primary physical custody to Gary. On March 19, 2001, the trial court ordered visitation increased as Dr. Stahl's report recommended, and reappointed the psychologist to evaluate the move-away issues.

Dr. Stahl submitted his report on those issues on June 29, 2001. He noted the long-standing desire of Susan to move to Cleveland, and her stated willingness to support Gary's relationship with the boys through phone calls and visitation. However, he also reported that Gary continued to be concerned that the gains he'd made in his relationship with his sons could be wiped out if they moved. Dr. Stahl expressed skepticism about the promises made by Susan to nurture the relationship, and he was concerned that she would " `inadvertently or unconsciously provoke loyalty conflicts.' " Still, he recognized that Susan had always been the primary caregiver, and that the loss of the relationship between her and the boys would cause them significant problems, as would the attendant loss of their relationships with their stepfather and half-sister. On the other hand, Dr. Stahl continued, loss of their relationship with Gary would be equally difficult for them. The success of the move, he concluded, would depend on whether Susan actually kept her promises regarding contact and visitation between the boys and Gary, or whether she would be influenced by family members to let her negative feelings about Gary govern that relationship and contribute to alienating the boys from their father.

At a hearing on August 23, 2001, Susan told the trial court that her husband had been living and working in Cleveland since March 2001. In response to a question by her attorney, Dr. Stahl testified that Susan should not be allowed to move the kids to Cleveland because, in his opinion, she would not further and encourage the boys' relationship with Gary; that relationship, he averred, was still fragile and could easily be made worse by the move. At the same time, he said, Gary was partly to blame for the situation because he contributed to the alienation of the boys by continuing the conflict with Susan, and he compounded the strain by sometimes being impatient with them. When the hearing concluded, the trial court found that both Susan and Gary " `are competent and qualified to be custodial parents.' " The larger issue, the court said, was whether the best interests of the boys would be served by allowing them to go to Cleveland, or by mandating a change of physical custody if Susan moved. It recognized that while Susan just couldn't " `let go' of her anger" at Gary, that didn't mean that she had a bad-faith motive for wanting to move. However, the court believed that the move itself would be detrimental to the kids because it would deny them frequent and continuing contact with Gary. Accordingly, it denied Susan's request to move with them to Cleveland, and ordered that if she moved there, primary physical custody of the boys would be awarded to Gary, at least during the school year.

Susan appealed, and, in an unpublished opinion, the First District reversed. The justices found that the trial court had given insufficient consideration to Susan's right to move and the boys' need for stability and continuity, while placing "undue emphasis" on the detriment to the kids from losing their relationship with Gary. The panel reasoned that a parent who seeks to prevent a move must make a " `substantial showing' " that a custody change is " `essential' " to prevent detriment to the child. Shortly after the California Supreme Court granted review, Susan filed a motion to dismiss the appeal, along with a declaration indicating that she planned to move to Arizona instead of Ohio; the high court denied her motion. While the appeal was pending, however, Susan obtained an order from the trial court allowing the children to live with her in Arizona " `temporarily' " pending the outcome of the Supremes' review. A 6-1 majority has now reversed the First District.

Burgess rules . . . The majority justices quickly determined that the case had not been made moot by Susan's move to Arizona; it still raised issues of continuing importance. With that behind them, they moved on to a discussion of their reasoning and determinations in In re Marriage of Burgess (1996) 13 C4th 25, 51 CR2d 444, 913 P2d 473, 1996 CFLR 7157, FIRST ALERT #F-96-748, on which the lower courts here had relied. The majority explained that Burgess requires the trial court, in both initial and postjudgment orders, to consider a custodial parent's presumptive right under Fam C §7501(a) to change a child's residence, as well as the prejudice to the child's best interests that might occur if the move is allowed. The moving parent does not need to show that the move is necessary, but he or she may not have a bad-faith motive for doing so. In addition, the majority justices continued, the trial court should preserve the existing custody arrangement unless the noncustodial parent shows a significant change of circumstances indicating that a custody change is in the child's best interests. That means, they said, that the trial court must look beyond the moving parent's motive to any possible detriment to the child that the move might cause, placing greater emphasis on the detriment than on the motive. Burgess , the majority found, recognized that "bright line rules [in move-away cases] are inappropriate"; thus, the trial court must exercise the broadest discretion in ruling on a move by considering a wide range of relevant factors. The Burgess court went on to say that while the interests of the child in having a stable and continuous placement with the custodial parent will most often prevail, the trial court should also consider the distance of the move, the age of the child, the child's relationship with both parents, the ability of the parents to communicate and cooperate, and their ability to put the child's interests first. Also relevant, Burgess continued, are the wishes of the child if he or she is mature enough to express them, and the extent of shared custody currently in place.

It's not easy . . . The majority then reviewed several appellate cases that applied the principles set out in Burgess , noting that only two were reversals of trial courts that had applied them. The cases generally had applied all the factors that were relevant to determining the best interests of the children involved, but at the same time the courts had all recognized how difficult it was to make a ruling that treats each parent fairly when both are fit and loving parents. The majority here noted the unusual circumstances in the two reversals, In re Marriage of Williams (2001) 88 CA4th 808, 105 CR2d 923, 2001 CFLR 8729, FIRST ALERT #F-2001-996 and In re Marriage of Campos (2003) 108 CA4th 839, 134 CR2d 300, 2003 CFLR 9329, FIRST ALERT #F-2003-1096. In Williams , the trial court erred by attempting to fashion a reasonable compromise that allowed two of the four children to move with the mother, while two stayed behind with the father. In Campos , the lower court impermissibly focused on the moving parent's right to move and lack of bad-faith motive, without giving the stay-behind parent the opportunity to present evidence of the detriment that the move could cause the children. The Campos court (anticipating the reasoning in LaMusga ) stated that the trial court must always consider both the lack of a bad-faith motive and the possible detriment to the child from the move.

Trial court gets it right . . . Turning to the case at hand, the majority first considered the appellate court's finding that undue emphasis had been placed on the detriment to the boys' relationship with Gary. These justices found nothing in the record to convince them that the trial court hadn't considered the boys' need for stability and continuity in their custody situation, or factored in Susan's presumptive right to move. In the view of the majority justices, the trial court had carefully considered Dr. Stahl's reports and the evidence presented by Susan and Gary. And while they wished that the lower court had spelled out on the record what factors it had considered, its failure to do so did not mean that the court hadn't considered the information that it should have in making its decision. The majority justices believed that it is up to the trial court to assess the weight that it gives to each applicable factor, and they saw nothing wrong in the lower court's conclusion that the fragile relationship between the boys and their father would be destroyed by the move. Moreover, it was not error for the court to have considered the parents' past conduct in fashioning a custody arrangement that was in the children's best interests. Considering such conduct does not mean that the trial court's order is punishment for that conduct; it simply indicates that prior behavior is an appropriate indicator of conduct that is likely to occur in the future. Here, the majority concluded, it was not unreasonable for the court to conclude that Susan wasn't likely to facilitate contact between Gary and the boys once she'd taken them to Cleveland.

More than just a move . . . In examining further the role that detriment to the children properly plays in move-away cases, the justices looked at In re Marriage of Edlund and Hales (1998) 66 CA4th 1454, 78 CR2d 671, 1998 CFLR 8026, FIRST ALERT #F-98-875, in which the custodial mom wanted to move with her child to another state, where her fiancé had accepted a better-paying job, their standard of living would be higher, and she would not have to work full time. In affirming the order permitting the move, the First District found that the trial court had examined both the strength of the bond between the mother and the child, and the difficulty that the stay-behind father would have in caring for the child if custody was changed. The court also stated that while the relationship between the child and her father would be affected detrimentally by the move, that circumstance was not sufficiently strong to preclude the move. The majority justices agreed with the Edlund and Hales court that there is some degree of negative impact in every move, and if that fact alone could preclude a move, no parent would ever be permitted to move. They feared, however, that the Edlund and Hales court had caused some confusion when it stated that the change of circumstances that the nonmoving parent is required to show must consist of more than the move itself. The burden for the nonmoving parent is to show that the move will cause detriment to the child; after that the court can reevaluate the custody order. In meeting this burden, the majority advised, that parent must convince the court that the likely consequences of the move, considering all relevant factors, will be so detrimental that it is in the child's best interests to change custody.

No pressure here . . . The majority then turned to the appellate court's conclusion that the order conditioning the custody change on Susan's move was coercive and impermissible. The justices agreed that an order that coerces a moving parent into canceling plans to move rather than lose custody is not permitted. However, they did not believe that was what had happened here. The trial court's order, they felt, was simply the latest in a line of orders that had gradually increased the time that Gary spent with his sons; he had been asking for joint physical custody for a long time, and his request did not come out of the blue as a response to Susan's request to move. Under the circumstances, the majority was not convinced that the order was intended to coerce Susan into staying.

Bryant blundered . . . Susan had contended that the court should give great weight to the finding that she did not have a bad-faith motive for seeking a move-away order. The majority pointed out that per Burgess , a bad-faith motive is one where the custodial parent seeks to move in order to frustrate contact between the children and the other parent. However, the rule, as set forth in Burgess , is that a custody change is not justified where a custodial parent has a good-faith reason for wanting to relocate unless the move will cause sufficient detriment to the child to require a change. The majority believed that most courts had interpreted that rule correctly, except for the court in In re Marriage of Bryant (2001) 91 CA4th 789, 110 CR2d 791, 2001 CFLR 8828, FIRST ALERT #F-2001-1012, where the Second District found that once the evidence showed that the moving parent did not have a bad-faith motive for the move, no further inquiry was necessary. That, the majority justices said, overstated the importance of a finding that there had been no bad faith; the reasons for a move are not irrelevant, even if the moving parent has a good-faith reason for wanting to do so. In fact, they emphasized, "the court still may consider whether one reason for the move is to lessen the child's contact with the noncustodial parent and whether that indicates, when considered in light of all the relevant factors, that a change in custody would be in the child's best interests." Summing up, the majority concluded that trial court judges must be given the broadest discretion to fashion custody orders that are in a child's best interests. Finding no error in the orders made by the trial court in this case, the majority justices reversed and remanded, with directions to the First District to affirm the trial court's order transferring custody of Garrett and Devlen to Gary if Susan moves to Cleveland. They also directed the trial court to consider the views expressed in their opinion and the parties' current circumstances in making any further custody and visitation orders.

Dissent . . . In her dissent, Justice Kennard found too speculative the majority's assumption that the trial court, in making its order, had considered the interests of Susan, the kids, and Gary equally, and she sees nothing in the record to indicate that it did so. This justice believes that the trial court's order was in fact an impermissible conditional custody order. She also agreed with the appellate court's determination that the trial court did not conduct a proper evaluation of the children's best interests, and that it did not give proper weight to the boys' need for stability and continuity of custody. Accordingly, Justice Kennard would have affirmed the First District.




The majority acknowledges that the Legislature codified Burgess when it amended Fam C §7501 by adding subsection (b), in which it declared that ruling " `to be the public policy and law of this state.' " However, the discussion doesn't end there, not by a long shot. Susan wanted the Supremes to apply Burgess in a straightforward way, but Gary was asking the court to interpret Burgess as simply standing for the proposition that a moving party need not prove that a move is necessary, and that the trial court has broad discretion to approve or deny a move and should be affirmed most of the time. He also wanted the court to consider the effect of Montenegro v. Diaz (2001) 26 C4th 249, 109 CR2d 575, 27 P3d 289, 2001 CFLR 8798, FIRST ALERT #F-2001-1010 [stipulated custody order is final only if language affirmatively indicates finality; best-interests test applies absent finality] on the holding in Burgess . Moreover, he contended that the test is not one of good faith or bad faith, but whether the moving parent's motive is whimsical or improper, as in Cassady v. Signorelli (1996) 49 CA4th 55, 56 CR2d 545, 1996 CFLR 7301, FIRST ALERT #F-96-769.

When the Supremes granted review, they agreed to determine what factors may properly be considered and what standards apply when a trial court evaluates a request to move. The majority justices have done that, but in doing so they've given both parties a little of what each wanted. Susan got her extensive analysis of what the Supremes meant in Burgess . As for the issues Gary wanted them to focus on, they addressed the burden of proof for the parent who opposes the move, the moving parent's need to prove necessity, the extent of the trial court's discretion in fashioning a move-away order, the role that motive plays, the role that the kids' interests play, the role of detriment in these cases, and the use of conditional orders. The only reference to Montenegro is in a footnote, in which the majority says that it doesn't apply here because it involved a stipulated custody order, while the order here was an order after hearing that was "a final judicial custody determination that the court need not reconsider in the absence of changed circumstances." We don't see that as a repudiation of Montenegro ; in fact, it seems to acknowledge that Montenegro will apply in a move-away case where the order does not have indicia of finality. In another footnote, however, the justices reaffirm the viability of Burgess footnote 12, in which they stated that de novo review is required when a parent with true shared joint physical custody seeks to move with the kids. And in both instances, the standards and factors set forth in this opinion will ensure that the trial court looks at more than whether the parent who wants to move has a good-faith motive for doing so.

One of the first things that comes to mind in reading this opinion is that it's good news for all those lonely custody evaluators who have seen business fall off while family law attorneys waited to see what the Supremes would say in this case. They'll have plenty of business now. The majority has said that the new standards are applicable in both initial custody orders and postjudgment mods, so getting a custody evaluation will be standard practice in any move-away case from now on; it'll be below standard practice not to get one for each side whenever a move is contested. That means that both family law attorneys and the evaluators they choose will have to be familiar with the latest theories regarding the effect of a move on children. There were so many amicus briefs filed in this case, we lost count of them; however, neither the majority nor the dissenting justice cites to any of them specifically. We think it is clear, nonetheless, that the majority had some of them in mind when it determined that the children's needs are as important as, if not more important than, the moving parent's presumptive right to move. Moreover, the majority has analyzed the case more from the point of view of the kids than that of either Susan or Gary. That, we believe, is a subtle nudge to trial courts to take the same view, and it is reinforced by the majority's list of factors that courts must consider: "the children's interest in stability and continuity in the custodial arrangement; the distance of the move; the age of the children; the children's relationship with both parents; 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; the wishes of the children if they are mature enough for such an inquiry to be appropriate; the reasons for the proposed move; and the extent to which the parents currently are sharing custody." These factors mirror the arguments set forth in the amicus briefs, even if the court doesn't acknowledge their influence. And these factors speak volumes about the need for courts and litigants to look at future move-away cases from the kids' point of view.

Having said all that, there are a couple of things in the majority opinion that we find hard to accept. We agree with Justice Kennard that there is really no evidence that the trial court properly focused on the detriment to the boys from being removed from Susan's care; the trial court certainly seemed to emphasize the detriment to the boys' relationship with Gary. Moreover, if this wasn't a conditional order that was intended to coerce Susan into abandoning her moving plans, we'll eat our First Alerts. At the same time, we must agree with the majority that there are no "right answers" in hotly contested move-away cases. No one outcome makes everybody happy, and trial courts simply do the best they can.