Child custody disputes can raise a number of contentious and complicated legal issues when both parents live in the same area. When one parent seeks to move away and take the child with them, it raises a slew of other questions. As a recent ruling out of California’s First District Court of Appeals makes clear, judges ultimately decide whether to grant a move-away request based on the child’s best interests.
Father and Mother separated in August 2009, sparking what would turn into a pitched battle over the custody of their then nine-year-old daughter. Mother obtained a two-year domestic violence restraining order against Father, based on an incident in which he allegedly grabbed her, twisted her arms, and poked her in the chest. Husband was also ordered to complete a 52-week batterer’s treatment program. As part of the restraining order ruling, a trial judge also awarded Mother full custody of Daughter. The judge allowed Father six hours of visitation time per week, a share that increased over the following years until Daughter was spending about 25 percent of her time with Father each week.
Mother filed for divorce in 2010 and soon thereafter asked the court for permission to move with Daughter to New Jersey. Presuming that Mother would move with or without the child, the court concluded that it was in Daughter’s best interest to go with Mother. It found that Mother was the child’s “primary caregiver and attachment figure.” The court also found that Mother wasn’t trying to sever the relationship between Father and Daughter by requesting the move. She grew up in New Jersey, had family there, and wanted the support in helping to care for the child.
The trial court also relied on an independent evaluator’s opinion that the move should be granted and that Father should be given specified visitation rights. The evaluator determined that Daughter would be more harmed by switching custody from Mother to Father than from having Father’s visitation time reduced. The evaluator noted that “separating a child from her primary attachment figure results in very serious emotional difficulties for the child, that are both short-term and long-term in their impact.”
Affirming the decision on appeal, the First District said there was sufficient evidence to support the trial court’s ruling. “Permitting relocation of the child inevitably results in significant detriment to the child’s relationship with the noncustodial parent,” the Court said. “The law is clear, however, that the best interest of the child, not the parent, is paramount in such circumstances.” In this case, the court said Father and Daughter were “bonded” and had a meaningful relationship. The evidence indicated that Mother was the primary attachment figure, however, as well as Daughter’s primary caregiver.
The court also said that Mother could be trusted to protect Father and Daughter’s relationship, and it noted that both parents had the resources to allow them to travel between California and New Jersey. It observed that Father persisted in an “unfounded” belief that Mother had psychological issues that prevented her from being a good parent. As a result, the court said Father couldn’t be trusted to help Daughter maintain a relationship with Mother if he were granted custody of the child.
If you’re considering divorce or are grappling with child custody issues in California, contact San Jose child custody lawyer John S. Yohanan. With more than 30 years of experience, Mr. Yohanan is an accomplished family law attorney who has helped a number of clients resolve a wide variety of marital disputes. Call our office at (408) 297-0700 or contact us online to schedule a consultation.
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