The court is required to order “reasonable visitation”, unless visitation would be detrimental to the best interests of the child (See Family Code §3100(a)). The court attempts to establish “continuous contact” of the minor with both parents, as long as there is no danger to the child.
If there is a domestic violence order in place or if there are protective orders in place, the court must consider special rules when making orders for visitation. As such, the court may order
- Third Party Monitored Visits,
- Supervised Visits,
- Suspension of Visits, or
- Denial of Visits
In cases involving domestic violence, the court shall consider
- the Nature of Acts enjoined or restrained as to the batterer;
- the passage of time since the order was made, and
- any continuation of prior violence or enjoined action(s).
The court is encouraged to make efforts to determine if emergency protective orders or other restraining orders are in effect protecting the minor (See Family Code §3031). Notwithstanding, the court order must be in best interest of the child(ren).
Where the non-custodial parent seeks to enforce rather than modify visitation rights, a contempt action may be brought against the custodial parent, if there has been a violation of a prior visitation order issued by the Court.
The reality is that a contempt procedure takes time, and rarely accomplishes much unless the contemptible act occurred several times. It also depends on the temperament of the judicial officer. Courts are often reluctant to put the custodial parent in jail because of the negative effect on the child. Methods used to enforce visitation rights include contempt, the posting of a bond by the violator, and the award of attorney fees.
At Nouri Law, we have handled move away cases and we are able to guide you and explain the process, including your legal rights. The decision in the famous case, In Re Marriage of Burgess (1996), placed the burden on the moving parent to show the necessity of the move. The custodial parent has the presumed right to relocate absent a bad faith motive for the relocation.
There are a series of other cases involving the move away issue, with which your attorney should be familiar. In the case In Re Marriage of LaMusga (2004), the Trial court ruling was appealed and reversed. The Higher Court looked into balancing parents’ rights. In the case of In Re Marriage of Brown and Yana (2006), the Court held that the parent seeking to prevent the move of the custodial parent has the burden to show detriment to the child as a result of the relocation, with legally sufficient evidence.
Today, we refer to a “Brown and Yana Motion for Relocation”, which arises from the ruling of this case. When one parent has sole legal and physical custody, the court can deny the right for an evidentiary hearing and permit the move. Here, the burden is on the parent resisting relocation by the parent with full or sole legal and physical custody.
In a move away case, there is a need for Procedural Due Process, which means there must be Notice of Relocation to the non-moving parent and an opportunity for the non- moving parent to prepare his/her case, with a meaningful opportunity for mediation under Family Code §§3171(a), and 3172. The court must consider factors for relocation as enunciated in the case In Re Marriage of LaMusga.
Without question, move away cases require an immediate review by your attorney to determine the best way to proceed, either by the moving parent or by the resisting parent. If the moving parent seeks to interfere or diminish the custodial time of the non-moving parent, the court may consider it a bad faith relocation, based upon the factors raised in In Re Marriage of Ciganovich (1976).
When one parent decides to move out of the State of California with the child(ren) without having full legal and physical custody, that parent needs to obtain a court order in the absence of an agreement by both parents or prior court order. The Court may require an evaluation of whether such a request is in the best interest of the child. The Court is reluctant to deprive the minor(s) of the love and affection of one parent unless it is not detrimental. Frequent visitation and contact with the minor(s) by the non-moving parent weigh heavily in the Court’s decision since the Court needs to determine whether it is in the best interest of the minor(s) to be separated from the non-moving parent. When frequent contact exists between the child(ren) and the non-moving parent, a move away order is more difficult to obtain by the moving party.