BURGESS .V BURGESS 913 P.2d 473 (1996) CASE BRIEF

BURGESS V. BURGESS

913 P.2d 473 (1996)

NATURE OF THE CASE: Appellant (W) sought the review of the order of the Court of Appeal, Fifth District, which reversed the order of the lower court, which granted W sole physical custody of her and respondent H's minor children. The lower court made this award despite H's intentions to relocate with the children.

FACTS: W and H were married and had two children. They separated in May 1992, when the children were four and three years old. The parents agreed that they 'shall share joint legal custody of the children. The mother shall have sole physical custody of the children.' At a hearing concerning custody in February 1993, W testified that she had accepted a job transfer to Lancaster and planned to relocate after her son's graduation from preschool in June. She explained that the move was 'career advancing' and would permit greater access for the children to medical care, extracurricular activities, and private schools and day-care facilities. The travel time between Lancaster and her home in Tehachapi was approximately 40 minutes. H testified that he would not be able to maintain his current visitation schedule if the children moved to Lancaster; he wanted to be their primary caretaker if the mother relocated. The trial court issued a ruling providing that the father and the mother would share joint legal custody, with the mother to have sole physical custody. It retained the present visitation schedule, but provided that after June 1993, 'the father will have visitation with the children, assuming the wife moves to Lancaster, on alternate weekends . . . with at least one three-hour midweek visitation . . . .' The father moved for reconsideration and for a change in custody, alleging that the mother 'has constantly used my contact with the children to harass me.' The trial court denied the motion for reconsideration, ruling that the father failed to file an affidavit stating any 'new or different facts.' Shortly thereafter, it held a hearing on the motion for change in custody. The father presented no testimony concerning alleged harassment. He again testified that if his children relocated with the mother he would not be able to maintain his current visitation schedule; he sought a custody arrangement under which each parent would have the children for '[a]bout a month and a half.' He also testified that he regularly traveled to Lancaster on alternate weekends, to shop and visit friends; he characterized the trip to Lancaster from his home as 'an easy commute.' The trial court issued an order on custody and visitation to the following effect. 'The court finds that it is in the best interest of the minor children that the minors be permitted to move to Lancaster with the petitioner and that respondent be afforded liberal visitation. Due to the complexity of the work schedules of both of the parties, who are employed by the California Department of Corrections, the court requests that a four-way meeting be held by the parties within ten days from the date of this order to work out a mutually agreed upon visitation schedule. In the event that such a schedule cannot be worked out, then the parties are to attend mediation. The court suggests that during the summer times and if school is on a year round basis, that respondent father be provided with 'large block of time' visitations.' H appealed from both the order denying reconsideration and the order denying change in custody; the appeals were consolidated. The Court of Appeal reversed. It formulated the following test for relocation cases. The trial court initially must determine whether the move 'will impact significantly the existing pattern of care and adversely affect the nature and quality of the noncustodial parent's contact with the child. The burden is on the noncustodial non-moving parent to show this adverse impact.' If the impact is shown, the trial court must determine whether the move is 'reasonably necessary,' with 'the burden of showing such necessity fall[ing] on the moving parent.' If it concludes that the move is 'necessary'--either because not moving would impose an unreasonable hardship on custodial parent's career or other interests or because moving will result in a discernible benefit that it would be unreasonable to expect the parent to forgo--the trial court 'must resolve whether the benefit to the child in going with the moving parent outweighs the loss or diminution of contact with the nonmoving parent.' The Court of Appeal concluded that 'no showing of necessity was made.' It reversed the orders and remanded for further proceedings consistent with the opinion.

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