The Long and Winding Road of a Custody Battle

Father comes to our office after having difficulty with the mother of the child. Mother had filed a request for a temporary restraining order alleging domestic violence. After jumping through some court hoops, father begins the long custody battle. Mother at all times during the custody battle has been a restrictive gatekeeper and has attempted to limit father’s access to the child which were based on her preferences and not on actual evidence.

Father and mother have a very contentious relationship because their child is special needs; the child has Down’s Syndrome. Mother feels that she is more qualified to be the child’s primary caretaker simply because she is mother. Father has received special education training and has vastly more experience in dealing with special needs children. After a couple of years of this ongoing court battle, father has approximately 40% custodial timeshare with the minor child despite the mother being a very restrictive gatekeeper.

Mother now meets someone on the internet and wants to move with the child to another state. This is the so-called “Move Away” case. Considering the animosity between the parties, history of the case, and the child’s special needs, the court orders an Evidence Code, Section 730 evaluation for all parties. This code section authorizes the court to appoint an expert to make a recommendation to the court about the proposed move away. The expert in this case was a widely used and respected local forensic psychologist. The report comes back in and the recommendation favors mother’s request to relocate with the minor child. The case was set for trial on mother’s request for a move away. Trial was conducted over several days where mother, father, the doctor and other witnesses testified.

The first question to consider in any move away is the burden on the non-custodial parent. If the parents have a true shared custodial arrangement, then the burden on the non-custodial parent is merely best interest of the child and the court will look at the custodial situation de novo. Neither parent is this situation has a better position. However, if the custodial arrangement is not a shared custody arrangement (less than 25% percent) then the custodial parent has the presumptive right to move and the non-custodial parent must prove that the move would be detrimental.

Mother cited Family Code section 7501, which states that “[a] parent entitled to custody of a child has a right to change the residence of the child, subject to the power of the court to restrain a removal that would prejudice the rights or welfare of the child.” However, the court must also consider “the presumptive right of a custodial parent to change the residence of the minor children, so long as the removal would not be prejudicial to their rights or welfare. Accordingly, in considering all the circumstances affecting the ‘best interest’ of minor children, it may consider any effects of such relocation on their rights or welfare.” Stated another way, mother felt that she was the primary parent and that it was not a shared custody arrangement and that she has presumptive right to move.

This was important during the custodial evaluation because the doctor mistakenly assumed that father’s custodial time was only 20% rather than 40%. This was a significant issue for the judge because a different standard would need to be applied notwithstanding that it was factually incorrect.

The court held in La Musga (full opinion here) that the factors for the court to consider in a move away case are: Among the factors that the court ordinarily should 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: 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.

The custody evaluator in this case also did not consider the extensive evidence of the mother’s failure to communicate and cooperate with the father. In essence, if she is unable to communicate with father when the live in the same town, how will she be able to communicate with father when she lives in another state?

After the presentation of evidence and argument of counsel, the court ruled that mother could not move away with the minor child and awarded father primary custody. One would think that the battle stopped there.

The other intriguing element in this case, all move away cases in fact, is that the court does not make conditional orders. In other words, the court does not say if mother moves then this will be the court order. Mother kept repeating that she would not move if the court denied her request to move-the court keep repeating that I must assume that you are moving and I cannot assume that you will stay if I deny your request. The court must assume that the mother was moving and then the choice was who should be the primary custodial parent.

Despite living close, the parents did not reside in the same school district. The court ruled that father had primary custody because mother is now moving to another state. Considering the court’s ruling that father had primary custody, father attempted to enroll the child in the school nearest his house. Mother argued that father could not do that because she now was not moving. Another ex-parte motion was filed with the court on father’s behalf and the court reiterated its position that father now has primary custody and that his residence will be considered the primary residence for school enrollment purposes. Mother quite angry with the court’s decision now, simply states then fine then, now I am really moving.

So, father initially presents to our office with a restraining order that is really disguised as a custody issue. He does everything that the court asks of him. He complies with the court’s orders, he communicates with the mother. Mother is a restrictive gatekeeper and does not comply with the court’s orders, she has a difficulty with communication. She wants to move. Court’s evaluator agrees with her and recommends the move. Father does not give up but contests the move and Attorney Jeremy Roark tries the case. Attorney Roark presents evidence that the evaluator should have considered but did not. He presents communication records that should have been considered but were not. He argues successfully that the evaluator based the agreement on a presumption of 20% timeshare when in fact it was not. The takeaway here is: Don’t give up. When you have the facts and the law on your side, effective legal representation in vital and we are here to help.

Contact the Edgar & Dow and/or specifically Attorney Jeremy Roark if you are facing a difficult custody and visitation case or a move away case.