Noncustodial Parent Must Make Prima Facie Showing of Detriment to Child From Proposed Move To Obtain Evidentiary Hearing

In re Marriage of Brown & Yana (2006) 37 C.4th 947, 48 C.R.3d 610, 127 P.3d 28, involved a mother, B, who had been awarded sole physical and legal custody of her son, C. She was planning to move with C, her second husband, and the two children from her second marriage to Green Valley, Nevada, where her husband had taken a job. Although the boy’s father, Y, conceded that B was not seeking to relocate in bad faith, he sought an evidentiary hearing and change of custody on the ground that the move would be detrimental to C. Without holding an evidentiary hearing, the trial court denied Y's request to modify custody. The Court of Appeal reversed, holding that Y was entitled to an evidentiary hearing. Held, the trial court’s denial of relief without a hearing was not an abuse of discretion. The trial court retains the right to deny a request for change of custody without an evidentiary hearing where, as here, the noncustodial parent has failed to make a prima facie showing of detriment to the child from the proposed move.

(a) Right of noncustodial parent to seek change of custody where parent with sole legal and physical custody seeks to relocate. A parent with sole legal and physical custody of a child does not have an absolute right to relocate with the child. Under Family C. 3006 and 3007, a parent with sole custody has the right to supervise and make decisions regarding the child’s residence and education. (37 C.4th 956.) However, under Family C. 7501, even a parent with sole custody may be restrained from changing the child’s residence if the court determines that doing so would be detrimental to the child. The seminal move-away case, Marriage of Burgess (1996) 13 C.4th 25, 51 C.R.2d 444, 913 P.2d 473, 10 Summary (10th), Parent and Child, §211, referred to the right of a custodial parent to move away with the child as a presumptive right that might not prevail if the move would be detrimental to the child. And subsequent decisions uniformly acknowledge that, even in the face of a permanent custody order, the custodial parent’s right to move with the child is subject to the changed circumstance test. (37 C.4th 957, citing In re Marriage of LaMusga (2004) 32 C.4th 1072, 12 C.R.3d 356, 88 P.3d 81, 10 Summary (10th), Parent and Child, §253; In re Marriage of Whealon (1997) 53 C.A.4th 132, 61 C.R.2d 559; In re Marriage of Edlund & Hales (1998) 66 C.A.4th 1454, 78 C.R.2d 671, 10 Summary (10th), Parent and Child, §253; In re Marriage of Campos (2003) 108 C.A.4th 839, 134 C.R.2d 300, 10 Summary (10th), Parent and Child, §253; and Osgood v. Landon (2005) 127 C.A.4th 425, 25 C.R.3d 379.)

(b) Right of noncustodial parent to evidentiary hearing to relitigate custody where custodial parent seeks to relocate.

(1) Initial burden. A noncustodial parent seeking to modify a permanent custody order in response to a proposed relocation has the initial burden of showing that the proposed relocation will be detrimental to the child, requiring a reevaluation of the custody order. The imposition of this burden on the noncustodial parent is consistent with the need for stability in custody arrangements. (37 C.4th 959.)

(2) Changed circumstances. Under the changed circumstance rule, a substantial showing is required to modify a final judicial custody determination. A change of custody is justified only where the relocation will result in detriment to the child that renders it “essential or expedient for the welfare of the child that there be a change.” (37 C.4th 960, quoting Burgess.) “If the noncustodial parent makes the required initial showing of detriment, the court must then ‘perform the delicate and difficult task of determining whether a change in custody is in the best interests’ of the child.” (37 C.4th 960, quoting LaMusga.)

(3) When hearing is appropriate. Family C. 3170 and 3185 provide that a disputed custody issue must be mediated and, if not resolved by mediation, set for hearing on the unresolved matter. (37 C.4th 961.) In re Marriage of Dunn (2002) 103 C.A.4th 345, 126 C.R.2d 636, in which a parent sought modification of a postdissolution child custody order, observed that these statutes contemplate an oral hearing “if necessary.” Similarly, a hearing in a move-away case should be held only if necessary. Thus, the noncustodial parent’s request for a hearing may be denied if the allegation of detriment is “insubstantial in light of all the circumstances presented in the case, or is otherwise legally insufficient to warrant relief.” (37 C.4th 962.) A hearing serves no legitimate purpose where the noncustodial parent cannot make a prima facie showing of detriment, or has failed to identify “a material but contested factual issue that should be resolved through the taking of oral testimony.” (37 C.4th 962.) Here, Y offered only generalities concerning the standard of living and education in Nevada, and particularly in Las Vegas. Even if established, this evidence would merely show detriment in the abstract, rather than specific prejudice to C’s “rights or welfare,” as required by Family C. 7501(a). (37 C.4th 963.) And although C appeared uncomfortable at the prospect of moving, this reaction is not unusual in a move-away situation. (37 C.4th 964.)

(4) No absolute right to hearing. In determining that Y was entitled to a hearing, the Court of Appeal relied primarily on In re Marriage of Campos. In Campos, the trial court failed to consider the father’s evidence that the move would be detrimental to the children. The Court of Appeal remanded the matter for consideration of that evidence. However, Campos does not stand for the proposition that a parent opposing a move-away has an absolute right to an evidentiary hearing. It simply recognized the trial court’s duty to consider all relevant issues in a move-away case. Where, as here, the trial court considers the noncustodial parent’s offer of proof, but finds it insufficient to establish the detriment required for custody modification under the changed circumstance rule, the court does not abuse its discretion in denying custody modification without holding an evidentiary hearing. (37 C.4th 965.)

Witkin References

On changed circumstance test, see 10 Summary (10th), Parent and Child, §251.

On modification of custody in move-away cases, see 10 Summary (10th), Parent and Child, §253.

On Family C. 7501(a), see 10 Summary (10th), Parent and Child, §211.