TO:
Larry Doyle, Chief Legislative Counsel
State Bar of California

FROM:
Mary C. Molinaro
4740 Folsom Boulevard
Sacramento, CA  95819
(916) 455-5200
Mary@DivorceWithRespect.com

DATE:  March 10, 2006

RE:  SB 1482 (Romero)

Position Recommended:     Oppose
Date Position Recommended:     March 4, 2006

ANALYSIS:

Existing law provides for a court to make orders regarding the relocation of a child.  Case law and statutory law dictate the process the court must follow in making such orders.

SB 1482 proposes to codify the case In re Marriage of Brown and Yana (2006) 37 Cal 4^th 947 and to limit and/or abrogate other existing law regarding relocation (more commonly known as move aways). There are other cases that currently define and clarify the law regarding move aways.

As attorneys who consistently represent not only mothers, but fathers, and also when appointed by the court, represent children, this committee has a strong interest in a balanced approach to legislation. The proposed legislation is opposed for the following reasons:

1. The proposed bill is not necessary as the case proposed to be codified namely,  Brown and Yana, is the law since it is a decision of the California Supreme Court (as opposed to an appellate court decision). The committee opposes the attempt to codify a case as cases can be fact specific and interpreted in different ways.  The courts are the best qualified to interpret what a case means for a particular move away situation it is reviewing.
    
2. The specific language in the proposed bill is confusing at best and at worst could be interpreted to abrogate or limit other cases that are good law as well. Specifically not addressed by this bill are the Montenegro v. Diaz (2001) 26 Cal 4^th 244 and In re: Marriage of La Musga (2004) 32 Cal 4^th 1072. The Brown and Yana case did not hold or even imply that these cases were in any way still not controlling on the ultimate issue. 
   
   Montenegro and La Musga  like Brown and Yana deal with further clarification of move away law and affirmed that In re: Marriage of Burgess (1996) 13 Cal 4th 25 is not a bright line rule, further that the children’s best interest must be considered. 
   
   In a situation where there is a temporary parenting order the court must review the case de novo (meaning an evidentiary hearing) and review the case on a best interest analysis.
   
   Also in a situation where there is a shared parenting arrangement where the non-custodial parent has more than minimal parenting time, the court must review in the best interest of the children with consideration of how the move will affect the child’s relationship with the non-moving parent.
   
   Last a bad motive of a moving parent must be considered in a move away analysis.  A purposeful move on one parent’s part to frustrate the relationship that another parent has with the child is a necessary consideration in whether to allow the move. 
   
   The specific language in the bill would seem to indicate that the court could deny a parents request, objecting to the move and relinquishing a change of custody without an evidentiary hearing even in the situation of a temporary order or where the parent exercised a true shared parenting arrangement or where a parent truly had a bad motive for failing to show substantial detriment.
   
   All the above situations/fact patterns require that an evidentiary hearing occur and are not the situation Brown and Yana dealt with in its holding.  This is why just a statement about evidentiary hearings (out of context of Brown and Yana) is too confusing and could have unintended negative consequences.
   
   The catch all phrase in the bill “unless otherwise legally insufficient to warrant relief” is not clear as to whether these other cases would fall into those provisions. 
    
3. This area of the law, by its very nature, demands flexibility and guided discretion, not inflexible rules. 
   
   Judges guided by statues and principles, announced in Burgess and affirmed in La Musga must be free to exercise the discretion (given the case) to fashion orders that best serve the interest of children.
   
   La Musga clarified Burgess in allowing a court to consider a number of factors when deciding whether to modify a custody order in light of the custodial parent’s proposal to change the residence of the child instead of using an overly strict interpretation of Burgess, by mandating a move without considering the children’s best interest.  These factors include the children’s interest in stability and continuity in a custodial relationship, the destination of the move; the age of the children; the children’s relationship  with both parents; the relationship between the parents including their ability to communicate and cooperate effectively and their willingness to put the interests of the children above their individual interest, the wishes of the children if they are mature enough for such input to be appropriate; the reason for the proposed move and the extent to which the parents are currently sharing custody.
    
4. If the legislature really wants to codify all Supreme Court case law on all re-locations (move away’s) then it should simply add to F.C. Section 7501 all the relevant re-location cases in subsection (c). By stating, it is the intent of the legislature to affirm the decisions in Marriage of Burgess, Brown and Yana, Montenegro and La Musga and to declare those rulings to be the public policy and law of the state.
   
   Otherwise it is best to leave the interpretation in the very complex area of “move-aways” to the courts.

(3)     Germaness:

Issues pertaining to custody and relocation of children directly affect the practice of those committee members practicing family law

Sincerely,

BARTHOLOMEW, WASZNICKY & MOLINARO LLP

MARY C. MOLINARO
Family Law Executive Committee