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Divorce, Child Visitation in the Mobile Age – In re Marriage of Fields

The world is getting smaller. Technological and social advancements make it easier for people to trot the globe, raising new questions about how we live. This mobile society also creates interesting issues in divorce and family law. California’s Fourth District Court of Appeals recently considered one of those issues: How to handle child visitation arrangements when one spouse lives on the other side of the planet?

digital-map-1442178-mHusband and Wife were married in 2005 and had a son one year later. They were later awarded joint legal custody of the child after divorcing in 2008. Wife was given primary physical custody of the boy, while Husband retained visitation rights of up to 40% of the child’s time. Although Husband visited with the child under this arrangement, he moved to Australia in May 2010 and didn’t have any in-person contact with the boy for roughly 21 months. The father-son communications during this time consisted of occasional phone calls and internet communications. Husband’s father – the child’s grandfather – continued to see the boy, however, including having him stay at his home on a number of weekends. These interactions ended in August 2012 after a disagreement between Wife and Grandfather.

Husband later returned to California and resumed visitation with his son on a modified level. When he decided to go back to Australia, he asked for permission for the boy to be able to visit him there. Wife opposed the request, saying that Husband didn’t have a stable work/life situation, that he’d been couch-surfing with friends, and that he’d moved several times without always informing her and their son of his whereabouts while previously living in the country. Husband told a trial judge that he intended to return to the house in Tarneit, Australia he shared with his fiancé and a third roommate and that he planned to later move to Perth.

In February 2013, the trial court issued an order modifying the custody arrangement. Based largely on a family court services report, the trial court said that the son couldn’t visit his father in Australia until at least June 2014, when the court would reconsider the stability of Husband’s living situation.

Affirming the decision on appeal, the Fourth District said the trial court “acted well within its discretion” in limiting overseas visitation. Specifically, the appeals court observed that the trial judge was primarily concerned with the extended absence of Husband in his child’s life prior to the request, as well as the logistics of arranging a trip. “Given [Husband]’s lengthy physical absence as well as the difficulty of extended travel for a young child, the family court could reasonably conclude that, at the time of its order, it was not in [Son]’s best interest to permit visitation with Cook in Australia,” the Court determined. It also noted that Husband could renew his request for overseas visitation at any time and that the trial court could potentially allow such visitations if the circumstances changed.

San Jose divorce lawyer John S. Yohanan has extensive experience handling a wide range of divorce issues, including those related to custody and visitation rights. He has more than 30 years of family law experience and has successfully helped clients defend these and other rights. Call (408) 297-0700 or contact us online for an appointment.

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