You can find the unpublished appellate decision of In Re Marriage of McCown here. "Unpublished" means that this case cannot be cited in court as any legal authority; however it is always a good exercise to read and analyze appellate court opinions to understand how certain child custody decisions are reached. As a San Diego Certified Family Law Specialist my office handles many child custody move away cases. These cases are also known as child custody relocation cases. Specifically, these cases involve a custodial parent's decision to move away, or relocate to another area, with the minor child or children. If the other parent opposes the relocation, a motion is filed in the family law court to permit the move and the court rules on whether the custodial parent may move the children.
In the unpublished McCown case, the mom argued that she was the custodial parent. Dad had visitation on the first, third and fifth weekends of every month. The family law trial was located in the Coachella Valley (Riverside County). Mom's new Husband was a pilot in the military and he was stationed at Miramar in San Diego (a military base located down the road, east of my La Jolla Family Law Office). The dad objected to the move stating that the child had always lived in the Coachella Valley where the child was very involved with the relatives on the Father's side of the family. The court appointed mediator (similar to the Family Court Services mediator of the San Diego Family Court) opined that the child was doing well under the parenting order but did not make a recommendation as to the move away request. The court found that it was in the best interest of the child to remain in Coachella Valley.
According to this decision the mom would have to remain living in Coachella Valley rather than to move to San Diego County where she would reside with her new Husband. Mom appealed the court's decision to the Fourth District, Division Two, Court of Appeals.
The appellate court found relied on the trial court’s finding that the parents had joint physical custody, rather than, as the mom claimed, that she was the custodial parent. (However, does the dad having the child on the first, third and fifth weekend per month equal “joint physical custody”?) The appellate court stated that the standard of the appellate review was whether the trial court abused its discretion to the detriment of the best interest of the child or whether the trial court did not properly follow the law.
The appellate court could not find abuse of discretion therefore; the ruling of the trial court was upheld. The focus of this posting is not to question the rulings of the two courts or the handling of mom’s case in the trial court because we were not there at the trial where the evidence was presented. The focus of this posting is to demonstrate to the reader the critical importance of trial preparation for move away cases. The custody relocation case must be built on a correct analysis of In re Marriage of Burgess, In re Marriage of LaMusga, and other cases and statutes. It is critical that the evidence presented to the trial court establish the custodial parent’s right to relocate with the child pursuant to California law.
The San Diego divorce attorneys at the Law Office of Thomas M. Huguenor handle child custody cases and custody move away cases.
