‘Move-Away’ Cases and the Courts : Justice: Four key decisions provide guidelines for divorce proceedings in which a parent seeks to leave town with children.

“Move-away” custody cases are now being seen increasingly all over the state. Although attorneys and judges say there often is no way of determining which parents will be allowed to move and which ones won’t, four significant cases in recent years have laid the groundwork for lower court decisions.

Below is a brief description of the cases and their outcomes.

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1986--Marriage of Rosson: After the Napa couple’s divorce in 1977, the mother and father retained joint custody. For seven years, the mother’s Napa job required that she commute four hours daily, alternately to Sacramento and San Francisco. She then was offered a better job in San Francisco. When she petitioned the court to be allowed to move with her two children, ages 10 and 13, the lower court ruled it was in the children’s best interest to remain in the community where they had lived all their lives. The court gave sole custody to the father. The mother appealed, saying she had not even moved yet, but lost.

The decision: Courts need not wait until an actual moving day to change custody to the non-moving parent.

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1990--Marriage of Fingert: Pamela Besser and Michael Fingert lived together in Ventura County during their nine-month marriage. Three months after Fingert filed for divorce, in 1983, their son, Joshua, was born. Besser initially was granted sole custody, which later was modified to 67% custody and 33% for Fingert. In 1985, Besser moved to San Francisco with Joshua, putting him on a plane every fourth week to see his father. In 1987, claiming the child was suffering emotionally, Besser returned to Ventura to modify the custody agreement. But the court instead gave her what amounted to an ultimatum: Move back to Ventura County or lose custody. On appeal, the lower court was overturned.

The decision: Courts cannot order a parent to move closer to the other parent to facilitate visitation or shared custody.

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1991--Marriage of Carlson: During their marriage the couple lived alternately in Pennsylvania and California but were living near the husband’s family in San Diego at the time of divorce. The mother was given primary physical custody of their son, although both parents had a close relationship with him. The mother asked to be allowed to move near her family in Pennsylvania, but was denied the request. On appeal, she cited the Fingert case and that court’s recognition of the constitutional right to travel. The appellate court in Carlson, however, said it would not rule on her right to travel. Her request was denied.

The decision: A custodial parent may be prevented from removing a child from the state when the result would be detrimental to the relationship between the child and non-custodial parent.

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1992--Marriage of McGinnis: The Santa Barbara couple divorced in 1990, at which time they retained joint custody of their three children. The father remained in the family home, where the children stayed three days a week, and later remarried. The mother then married a football coach who lost his job but was offered another in Arcadia. She informed her ex-husband she would be moving in two weeks with the children. The lower court denied the father’s request for an outside evaluation to determine the children’s best interests. The mother was allowed to move. That decision was later overturned and the children returned to Santa Barbara.

The decision: In move-away cases where a shared parenting arrangement is working, an order changing custody requires outside evaluation; there must be adequate notice of the impending move; and then the move can be made only for imperative reasons.