Thursday, January 21, 2010

Child Custody: What if the move is to block visitation?

In one of my last blogs, I covered aspects of child custody when the greater time share parent plans on moving with the children. As noted, the court must take into consideration various elements including the child's best interests in the ultimate custodial placement.

To refine this point, I call the reader's attention a recent unpublished California Appellate Court decision worth one's reflection and review. As a cautionary note, keep in mind an unpublished opinion cannot be used as a definitive legal principle, however it can be helpful in assisting the courts, attorneys and ultimately the parties on the direction certain legal precedents may be heading.

Since every family law case and custody matter is unique to that individual family, interpreting this case and for that matter any case must be tempered by the reality that each case before the court will be decided on their specific needs, not just on what happened in some other case. With all this as a backdrop, lets look at the case known as Irpp of Oliver and Gaines-Unpublished opinion of District 2, Division 8 (filed December 22, 2009)

The facts of this case are as follows: The child was born in 2004 and always lived with mother. Father had no contact with the child for the first year and a half of the child's life. Father filed a petition for paternity and in a motion requested custody, visitation and support. Mother's response to the motion claimed father abused drugs.

In a hearing May 2006, the court held that father had almost no contact with the child in spite of mother's efforts to facilitate a relationship. The court also determined that the child has special needs and that father did not have the capacity to care for his son. There also was some concern over the allegations of father's drug use.

For these reasons, the court awarded mother physical and legal custody with a detailed visitation plan for father.

In November 2006, mother petitioned the court for permission to move to Houston TX. It should be noted that mother had never lived in Houston nor did she have family in that area. Mother claimed that the move would be to a better more affordable community.

Father objected to the move claiming that the move would impair his fledgling relationship with his child and consequently the request to move to the other state should be denied.

At hearing, the trial court determined that the move was inappropriate and was denied. The court reasoned that the child would be prejudiced by a move to Texas because:" at a distance, mother's tendency to look for loopholes will increase the likelihood of diminished contact with father". The trial court also noted that the expense of travel and father's limited financial means could put father in a position where he would just give up on trying to see the child due to those economic limitations.

Mother appealed and in the unpublished opinion, the court affirmed the lower court's decision to prevent the move noting that the court must consider when a parent requests to move the following factors:

1. The children's interest in stability and continuity in the custodial relationship.

2. The distance of the move.

3. The age of the children.

4. The children's relationship with both parents.

5. The relationship between the parents and their ability to communicate and cooperate effectively and their willingness to put the children's rather than their needs first.

6. The wishes of the children if they are mature enough to express them and such an inquiry is appropriate.

7. The reasons for the proposed move

8. The extent to which the parents currently are sharing custody.

In this particular case, even though father had not really started his parenting relationship with the child, the court felt keeping the child in California was the best chance that the needs of the child on developing a relationship with his father would be met.

To conclude, child custody and move away cases are extremely complex. Each fact pattern will be assessed differently by the judge to meet the needs of each case. For these reasons, getting legal representation from a highly skilled attorney with many years experience in the field of family law increases the chances of achieving your goals in developing the best outcome for you and your children.