Friday, February 03, 2006

California high court favors move-aways

LA Times reports:
SAN FRANCISCO — The California Supreme Court on Thursday shifted the balance in fights between divorced parents with a ruling that eases the way for a parent with custody — usually the mother — to move away over her former mate's objections. ...

The high court disagreed, in Brown vs. Yana. The court ruled that a parent who lacks custody, usually the father, would have to show that the move would harm the child before he would be granted a hearing.

A hearing "in a move-away situation should be held only if necessary," Justice Marvin Baxter wrote for the unanimous court.

A trial court may deny a hearing if "the noncustodial parent's allegation or showing of detriment to the child is insubstantial in light of all the circumstances presented in the case," Baxter said. ...

Thursday's decision will not affect Cameron's current custody arrangement. After moving to Nevada with his mother, Cameron decided he would prefer to be with his father, and his mother eventually allowed the child to live with Yana in Santa Maria.

At a court hearing in November, "the boy testified unequivocally how unhappy he was with his stepfather and his mother," Helbert said. "He wasn't doing well in Las Vegas."

At one point, the boy refused to board a plane to return to his mother, the lawyer said.
The Frisco paper says:
The unanimous ruling overturned an appeals court's decision that a judge must always hold a trial-type hearing, with each side calling witnesses and presenting evidence, whenever one ex-spouse challenges another's decision to take their child to a new location.

In a series of decisions since 1996, the court has set guidelines for "move-away" cases, allowing the parent with primary custody of the child to relocate but giving the other parent the right to seek a change in custody or visitation rights. The parent without custody must show that the move would harm the child and that a new arrangement would be in the child's best interests.

Thursday's ruling presents a new challenge to the parent contesting the move: coming up with enough evidence of likely damage to the child to convince a family court judge that the couple, expert witnesses and perhaps the child should be called into court to testify.

Without such a hearing, there is little chance that the judge would interfere with the move.
The case is Brown vs. Yana. [pdf doc] I'll have to find it and read it, because it sounds bad.

From the above account, it should have been obvious to anyone that moving the boy away from his dad was going to bad, and yet the dad could not even get a hearing. Furthermore, the court has gone out of its way to try to block such hearings in the future.


Anonymous said...

When will the courts realize that taking a child away from either parent, especially a father, IS in itself causing harm to the child..... sigh. (of course parents who abuse or abandon children or have dangerous life-styles are an obvious exception).
It saddens me why this is such a difficult concept to grasp for so many Americans, especially ones in power to make big decisions. It should be the other way around; if you want to move away from the other parent, you should need to go to court and prove why this should be allowed. For example, just because your new spouse got a job elsewhere should rarely be cause enough....Also, children from age 12 or 13 should be given the right and easy access to the courts to chose which parent they want to live with,(if both parents are available), and whether or not they want to live full time at one house rather than have to disrupt their lives by going back and forth between homes at the whim of their parents' needs; at this age, they are old enough to have a valid say.

George said...

You are right. The court's reasoning is so bad that I intend to post a couple of more messages about it.