Friday, February 3, 2006

Case Development: Relocation Decisions Following Constested Custody Determinations Do Not Require Evidentiary Hearings

The California Supreme Court addressed the issue, "In a case where sole legal and sole physical custody of a child has been awarded to one parent after a contested custody dispute, and the custodial parent's subsequent decision to relocate with the child is opposed by the noncustodial parent, is the noncustodial parent entitled to an evidentiary hearing on the matter?" and held that it is not error to deny an evidentiary hearing.

The court rejected Mother's argument that, having been awarded sole physical and legal custody of her child, she had the absolute right to relocate.  Nonetheless, the court did recognize that "even a parent with sole legal and sole physical custody may be restrained from changing a child's residence, if a court determines the change would be detrimental to the child's rights or welfare."  The non-custodial parent must show that the changed circumstances of the the move will be a detriment to the child.  Having made that prima facie showing, the court must then determine whether the move or a change in custody is in the best interests of the child.

In this case, Father was unable to establish through the hearing on the petition any detriment to the child or that the move was being proposed in bad faith.  His offer of proof on the evidence he would introduce on best interests was insufficient to convince the trial court that a full evidentiary hearing was necessary.  The Supreme Court held that the trial court's failure to conduct a full evidentiary hearing under these circumstances was not error.

In re Brown, 2006 Cal. LEXIS 1895 (February 2, 2006)

http://lawprofessors.typepad.com/family_law/2006/02/case_developmen.html

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