In Re Marriage of Burgess
13 Cal.4th 25, 51 Cal. Rptr. 2d 444, 913 P.2d 473 (1996)
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Rule of Law:
A parent with physical custody of a child has a presumptive right to change the child's residence and is not required to prove that the move is necessary. The noncustodial parent seeking to prevent the move bears the burden of showing that the relocation would be detrimental to the child's welfare, rendering a change in custody essential.
Facts:
- Paul D. Burgess and Wendy A. Burgess were married, had two children, and both worked at a state prison in Tehachapi, California.
- The couple separated in May 1992, and Wendy (the mother) moved with the two young children to a nearby apartment in Tehachapi.
- Wendy and Paul stipulated to a temporary order where Wendy had sole physical custody of the children.
- Wendy later accepted a job transfer to Lancaster, a city approximately 40 miles away from Tehachapi.
- Wendy testified that the move was for career advancement and would provide the children with better access to medical care and extracurricular activities.
- Paul (the father) testified that he would be unable to maintain his current visitation schedule if the children moved to Lancaster and requested to be their primary caretaker if Wendy relocated.
Procedural Posture:
- Wendy Burgess petitioned a California trial court for dissolution of her marriage to Paul Burgess.
- The trial court entered a temporary order based on the parents' stipulation, granting Wendy sole physical custody and Paul visitation.
- At a subsequent hearing to determine a permanent custody arrangement, the trial court granted Wendy sole physical custody, permitting her to move to Lancaster with the children and ordering liberal visitation for Paul.
- Paul's motions for reconsideration and for a change in custody were both denied by the trial court.
- Paul, as appellant, appealed the trial court's orders to the California Court of Appeal.
- The Court of Appeal, an intermediate appellate court, reversed the trial court, ruling that Wendy, as the moving parent, had the burden of showing her relocation was 'necessary' and had failed to do so.
- The California Supreme Court granted review of the Court of Appeal's decision.
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Issue:
Does a parent seeking to relocate with a minor child, either in an initial custody determination or after a custody order is in place, bear the burden of establishing that the move is 'necessary'?
Opinions:
Majority - Mosk, J.
No. A parent seeking to relocate with a child does not bear the burden of proving that the move is necessary. The governing standard in an initial custody determination is the 'best interest of the child,' and a parent with existing custody has a presumptive right under Family Code § 7501 to change the child's residence. The court's role is to ensure the move would not prejudice the child's rights or welfare, not to second-guess the parent's reasons for moving. In cases seeking to modify an existing custody order due to a move, the noncustodial parent must show a substantial change of circumstances and that the move would cause such detriment to the child that a change in custody is 'essential or expedient for the welfare of the child.' The paramount need for continuity and stability with the primary caretaker weighs heavily against changing custody simply because of a relocation.
Concurring - Baxter, J.
No. The author agrees that a parent seeking to relocate does not have a special burden to prove the move is 'necessary.' However, he writes separately to express concern that the majority's focus on 'prejudice' and 'detriment' sets too high a bar for the noncustodial parent. The standard should always remain the 'best interest of the child.' A proposed relocation is a significant change in circumstances that may warrant a modification if the noncustodial parent can persuade the court that a different custody arrangement would be better for the child than the existing one, without having to prove the move would cause positive harm or detriment.
Analysis:
This decision significantly strengthened the rights of custodial parents in California to relocate with their children. By rejecting the 'necessity' test, the court shifted the legal focus from the parent's motives for moving to the actual impact on the child's welfare. It established a high threshold for noncustodial parents to block a move, requiring them to prove detriment to the child rather than simply arguing that the status quo is preferable. This ruling favors the mobility of custodial parents and prioritizes the stability of the relationship with the primary caretaker over maintaining the noncustodial parent's specific visitation schedule.
