In a recent "Not To Be Published" (this case cannot be cited in legal Points and Authorities) appellate court decision, In re the Marriage of CELIA L. and ROBERT N. BURNS, a Father's appeal of a trial court decision, allowing the Mother to move away with the minor child, was dismissed. The purpose of this posting is to provide a brief analysis of this case to better understand why the motion was successful for the Mother and why the Father's effort to block the move away failed.
As a San Diego Certified Family Law Specialist lawyer, I have handled many child custody move away cases (also known as child custody relocation cases). With a La Jolla family law office, we see clients who are financially mobile. We see clients who have school or work opportunities in other parts of the country or the world. Also, it is common that when a marriage breaks up, the primary custody parent will want to move back home with his/her family in another state. The United States is a very mobile country. People have a desire or a need to move. It is our job to know when the Court is likely to allow the move or likely to deny that a parent may relocate with a child.
In the Burns case, the Father stated that when the mother left the marriage, she moved, with a child of the marriage, to another city, and that relocation was unlawful and should not have permitted by the trial court. The parties met in 2004 and married in 2005. The marriage was unsuccessful, almost from the start. Allegations of anger, domestic violence and irreconcilable differences led to the Mother filing for divorce in 2007. Amidst Order to Show Cause motions for custody and Domestic Violence Restraining Order filings, the Mother moved away with the child. Immediately we see that the Father made procedural mistakes at this early stage of the case. Possibly the Father was a self represented litigant at this stage as the court proceedings contain many over the top statements by the Father in connection with the custody case. Hyperbole and drama is not a good substitute for evidence.
Child custody mediation took place and the report was favorable to the Mother. It appears that the combination of the Mother’s evidence of the Father’s anger issues, the mediation report, the Father’s dramatic statements and the procedural issues at the beginning of the case all led an order in 2008 awarding primary custody of the child to the Mother. Much more litigation took place and at the end of the case the Father filed an appeal contesting the trial court’s permission to allow the Mother to relocate with the child. The appellate court stated that the appeal was filed too late; it was “untimely” and therefore the appellate court lacked jurisdiction to hear the appeal. Therefore, the appeal was dismissed.
The case is educational as to the many mistakes that were made in this case. However, even without any mistakes it cannot be said that the outcome would have been any different. We may revisit this case to discuss the legal authorities the Courts used in ruling in favor of the Mother’s custody motion and in discussion of move away law. Such an analysis always considers the rulings in the cases of Burgess and LaMusga. The San Diego divorce lawyers at the Law Office of Thomas M. Huguenor handle child custody move away and child custody relocation cases.
