F.T. v. L.J.
194 Cal. App. 4th 1
| Cal. Ct. App. | 2011Background
- Father seeks move with his son to Washington; no final custody order at time of move-motion; prior orders provide Father as primary caregiver with supervised visitation for Mother; psychologist Volcani opines detriment to move; subsequent supplemental findings show improved coparenting but court denied move; no clear final custody determination under Montenegro; trial court emphasized risk to Mother-child relationship and continuity concerns; appellate reversal directs de novo consideration with correct standards; record includes Mother’s battery conviction as background but no judgment included in record.
- Mother previously abused Child in 2007 leading to initial custody modification; mediation reports and FCS recommendations favored Father with primary residence; later move-away hearings considered evidence from Waldman, Volcani, and therapist observations; at remand, court should reassess under proper LaMusga and Burgess standards.
- Volcani supplemental report in 2010 indicated improved cooperation between parents, but court did not give it full weight; Waldman’s prior report relied on outdated conclusions; the court’s order denied move away citing potential detriment to Mother-child relationship without assessing other factors.
- Statutory framework includes Burgess (presumptive right), LaMusga (multifactor move-relocation test), Montenegro (final custody determinations), and 3044 (domestic violence presumption); question presented is whether the move-away denial was error under these standards; the Court of Appeal reverses for de novo review with correct application of law.
- Record reflects disputed facts and discretion; the case emphasizes stability and child’s best interests as central guides; remand permits updated expert input (Volcani/Waldman) and a full best-interests assessment.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Father has a presumptive right to relocate under §7501. | Father contends presumptive right applies. | Mother asserts no final order exists to trigger §7501 presumption. | No final judicial custody determination existed; presumption does not apply. |
| Whether the trial court properly applied move-away standards (LaMusga/Burgess) to determine best interests. | Court should assess detriment to Father-child relationship and continuity. | Court focused on detriment to Mother-child relationship and communication issues. | Court misapplied standards; remand for de novo review with proper factors. |
| Whether §3044 DV presumption was considered and weight given appropriately. | Mother’s 3044 status should raise presumption against custody change. | Presumption is rebuttable and must be weighed with all factors. | No explicit 3044 finding; remand to determine if DV presumption applies and its impact. |
| Whether there was error in treating the plan to move as non-final and avoid addressing custody post-move. | Court should adjudicate custody implications as if move would occur. | Court avoided altering custody status to avoid coercion. | Court abused discretion by not addressing custody arrangement if move occurred; remand. |
Key Cases Cited
- In re Burgess, 13 Cal.4th 25 (Cal. 1996) (custody relocation factors; burden on noncustodial parent to show detriment)
- LaMusga, 32 Cal.4th 1072 (Cal. 2004) (multifactor relocation analysis; stability and best interests)
- Montenegro v. Diaz, 26 Cal.4th 249 (Cal. 2001) (final custody determinations; Montenegro rule on final orders)
- Niko v. Foreman, 144 Cal.App.4th 344 (Cal. App. 2006) (move-away considerations; conditional custody orders possible)
- Ruisi v. Thieriot, 53 Cal.App.4th 1197 (Cal. App. 1997) (conditioning custody orders on relocation plans; treat plan seriously)
- Linder v. Thrifty Oil Co., 23 Cal.4th 429 (Cal. 2000) (abuse of discretion standard; need for proper legal grounding)
- Keith R. v. Superior Court, 174 Cal.App.4th 1047 (Cal. App. 2009) (3044 presumption; rebuttable; weigh with best interests)