Yes, you may move...
Paul D. Burgess (hereafter the father) and Wendy A. Burgess (hereafter the mother) were married and had two children, Paul and Jessica. Both parents were employed by the State Department of Corrections at the state prison in Tehachapi and owned a home in a suburb.
They separated in May 1992, when the children were four and three years old. The mother moved with the children to an apartment in Tehachapi; the father remained in their former home, pending sale of the property. The mother petitioned for dissolution shortly thereafter.
In July 1992, the trial court entered a "Stipulation and Order" dissolving the marriage and providing for temporary custody and visitation in accordance with a mediation agreement between the parties. The parents agreed that they "shall share joint legal custody of the children. The mother shall have sole physical custody of the children."
The mediation agreement expressly identified as "[a]t [i]ssue" the visitation schedule for the father "if the mother leaves Kern County." The parents agreed to a detailed schedule for weekly visitation by the father, as well as an alternative schedule for biweekly weekend visitation, depending on his work schedule.
At a hearing concerning custody in February 1993, the mother testified that she had accepted a job transfer to Lancaster and planned to relocate after her son's graduation from preschool in June. She explained that the move was "career advancing" and would permit greater access for the children to medical care, extracurricular activities, and private schools and day-care [13 Cal.4th 30] facilities. The travel time between Lancaster and her home in Tehachapi was approximately 40 minutes.
The father testified that he would not be able to maintain his current visitation schedule if the children moved to Lancaster; he wanted to be their primary caretaker if the mother relocated. The trial court issued a ruling providing that the father and the mother would share joint legal custody, with the mother to have sole physical custody. It retained the present visitation schedule, but provided that after June 1993, "the father will have visitation with the children, assuming the wife moves to Lancaster, on alternate weekends ... with at least one three hour midweek visitation ...."
The father moved for reconsideration and for a change in custody, alleging that the mother "has constantly used my contact with the children to harass me." The mother opposed a change in custody, alleging that the father "does not utilize all of the time with our children that is available to him now."
In July 1993, the trial court denied the motion for reconsideration, ruling that the father failed to file an affidavit stating any "new or different facts." Shortly thereafter, it held a hearing on the motion for change in custody. The father presented no testimony concerning alleged harassment.
He again testified that if his children relocated with the mother he would not be able to maintain his current visitation schedule; he sought a custody arrangement under which each parent would have the children for "about a month and a half." He also testified that he regularly traveled to Lancaster on alternate weekends, to shop and visit friends; he characterized the trip to Lancaster from his home as "an easy commute."
The mother testified that she had been working in Lancaster for four months and planned to move there. She identified several advantages to the children to living in Lancaster, including proximity to medical care and increased opportunities to participate in extracurricular activities. She also testified that the father objected to her move, at least in part, in order to retain control of her and the children. To her understanding, he did not want to change his work shift "because it keeps me in Tehachapi." She expressed her willingness to accommodate weekend visitation with the father as well as extended visitation in the summers.
In August 1993, the trial court issued an order on custody and visitation to the following effect. "The court finds that it is in the best interest of the minor children that the minors be permitted to move to Lancaster with the petitioner and that respondent be afforded liberal visitation.
Due to the [13 Cal.4th 31] complexity of the work schedules of both of the parties, who are employed by the California Department of Corrections, the court requests that a four-way meeting be held by the parties within ten days from the date of this order to work out a mutually agreed upon visitation schedule.
In the event that such a schedule cannot be worked out, then the parties are to attend mediation. [¶] The court suggests that during the summertimes and if school is on a year round basis, that respondent father be provided with 'large block of time' visitations."
The father appealed from both the order denying reconsideration and the order denying change in custody; the appeals were consolidated.
The Court of Appeal reversed. It formulated the following test for relocation cases. The trial court initially must determine whether the move "will impact significantly the existing pattern of care and adversely affect the nature and quality of the noncustodial parent's contact with the child. The burden is on the noncustodial non-moving parent to show this adverse impact."
If the impact is shown, the trial court must determine whether the move is "reasonably necessary," with "the burden of showing such necessity fall[ing on the moving parent."
If it concludes that the move is "necessary"-either because not moving would impose an unreasonable hardship on custodial parent's career or other interests or because moving will result in a discernible benefit that it would be unreasonable to expect the parent to forgo-the trial court "must resolve whether the benefit to the child in going with the moving parent outweighs the loss or diminution of contact with the nonmoving parent."
On the facts before it, the Court of Appeal concluded that "no showing of necessity was made." "[T]he reality here is that in moving, [the mother] primarily gained convenience." It reversed the orders and remanded for further proceedings consistent with the opinion. We granted review. We now reverse.
This matter requires us to determine whether a parent seeking to relocate after dissolution of marriage is required to establish that the move is "necessary" before he or she can be awarded physical custody of minor children. In this case, a parent with temporary physical custody of two minor children sought a judicial determination of permanent custody and expressed the intention to relocate with the children from Tehachapi to Lancaster, California, a distance of approximately 40 miles. The trial court ordered that it was in the "best interest" of the minor children to remain in the physical custody of that parent even if she moved to Lancaster; it ordered "liberal visitation" with the noncustodial parent. The Court of Appeal reversed, on the ground that the custodial parent failed to carry her burden of establishing that relocating with the minor children was "necessary." fn. 1
We conclude that, in an initial judicial custody determination based on the "best interest" of minor children, a parent seeking to relocate does not bear [13 Cal.4th 29] a burden of establishing that the move is "necessary" as a condition of custody. Similarly, after a judicial custody order is in place, a custodial parent seeking to relocate bears no burden of establishing that it is "necessary" to do so. Instead, he or she "has the right to change the residence of the child, subject to the power of the court to restrain a removal that would prejudice the rights or welfare of the child." (Fam. Code, § 7501.) Accordingly, we reverse the judgment of the Court of Appeal.
