In re Marriage of Burgess and In re Marriage of LaMusga are the leading cases in this type of custodial situation. In Burgess, the court held that a custodial parent who wishes to relocate does not have to prove that a move is necessary. So, the ultimate result of this case was that the noncustodial parent had to prove that the move is a change of circumstances that warrants a change in custody, similar to any proposed modification of a child custody, child support, or spousal support order.
In re Marriage of LaMusga reinforced In re Marriage of Burgess, by holding, “The likely consequences of a proposed change in the residence of a child, when considered in the light of all the relevant factors, may constitute a change of circumstances that warrants a change in custody, and the detriment to the child’s relationship with the noncustodial parent that will be caused by the proposed move, when considered in light of all the relevant factors, may warrant denying a request to change the child’s residence or changing custody” (In Re Marriage of LaMusga (2004) 32 C4th 1072, 1079).
The LaMusga court set out many factors to be considered in determining whether a move would be detrimental to the child. These factors include:
- The likely impact of the move on the noncustodial parent’s relationship with the children
- The children’s interest in the stability and continuity in the custodial arrangement
- The distance of the move
- The ages of the children
- The children’s relationship with both parents
- The relationship between the parents
- The wishes of the children
- The reasons for the move
- The extent to which the parents are currently sharing custody
The result of LaMusga expanded the need for the trial court to exercise its discretion by weighing a broader set of factors and a more expansive set of facts.
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