In re Marriage of LaMusga

• Decision Date: 29 April 2004
• Docket Number: No. S107355.,S107355.
• Citation: 32 Cal.4th 1072,12 Cal.Rptr.3d 356,88 P.3d 81
• Court: California Supreme Court
• Parties: In re the MARRIAGE OF Susan and Gary LAMUSGA. Susan Poston Navarro, Appellant, v. Gary Lamusga, Respondent.

12 Cal.Rptr.3d 356

88 P.3d 81

32 Cal.4th 1072

In re the MARRIAGE OF Susan and Gary LAMUSGA.

Susan Poston Navarro, Appellant, v. Gary Lamusga, Respondent.

No. S107355.

Supreme Court of California.

April 29, 2004.

Rehearing Denied July 14, 2004.¹

Law Office of Kim M. Robinson, Kim M. Robinson and Eric H. Zagrans for Appellant.

Vicky L. Barker and Marci Fukuroda for California Women's Law Center, California Women Lawyers, Coalition for Family Equity, California Federation of Business and Professional Women, California National Organization for Women, The Feminist Majority Foundation, Children Now, California Alliance Against Domestic Violence, National Coalition Against Domestic Violence, National Network to End Domestic Violence, San Francisco Women Lawyer's Alliance, Queen's Bench Bar Association of the San Francisco Bay Area, Women Lawyers Association of Los Angeles, Lawyers Club of San Diego, Women For:, National Council of Jewish Women/Los Angeles, Women's Equal Rights Legal Defense and Education Fund, Asian Pacific American Legal Center, Arizona Coalition Against Domestic Violence, Iowa Coalition Against Domestic Violence, Minnesota Program Development Inc., New Jersey Coalition for Battered Women and Pennsylvania Coalition Against Domestic Violence as Amici Curiae on behalf of Appellant.

Law Offices of Joanne Schulman and Joanne Schulman for Margaret A. Gannon, Cheryl Sena, Carole Cullum, Joanne Schulman, Deborah Appel, Patricia Wagner, Leslie Knight, Gloria Sandoval, Stand! Against Domestic Violence, Roy F. Malahowski, Barbara Hart, Lynne Arrowsmith, Nina Balsam, Andrea Farney, Diane Post and Anne Thorkelson as Amici Curiae on behalf of Appellant.

Law Offices of Tony J. Tanke and Tony J. Tanke for Judith S. Wallersten, Paulina F. Kernberg, Joyanna Lee Silberg, Julia M. Lewis, John B. Sikorski and Stephanie Joan Dallam as Amici Curiae on behalf of Appellant.

Carol S. Bruch, Scott Altman, Edward Imwinkelried and Mary Ann Mason for Herma Hill Kay, Grace Ganz Blumberg, Carol S. Bruch, Janice E. Kosel, Frances Olsen, Joan Heifetz Hollinger, Mary Ann Mason, D. Kelly Weisberg, Jan C. Costello, Sheila James Kuehl, John E.B. Myers, Lisa C. Ikemoto, Scott Altman and Janet Bowermaster as Amici Curiae on behalf of Appellant.

Garrett C. Dailey, Oakland, and Steven A. Greenfield for Respondent.

Leanne Schlegel for Minors.

Donald S. Eisenberg, Glendora, for Constance R. Ahrons, William G. Austin, Sanford L. Braver, James H. Bray, Dr. David Demo, Robert Emery, Dr. William V. Fabricius, Dr. Michael Gottlieb, Dr. John Guidubaldi, Dr. Joan B. Kelly, Marsha Kline Pruett, Dr. Michael E. Lamb, Dr Jay Lebow, Dr. Patrick McKenry, Dr. Kay Pasley, Isolina Ricci, John W. Santrock, Dr. Richard A. Warshak, Sidney J. Brown, James R. Flens, Michael A. Fraga, Lyn R. Greenberg, Dr. Neil S. Grossman, Leslye Hunter, Eva Baranoff McKenzie, Nancy Williams Olesen, Gary R. Rick and Jan Tyler as Amici Curiae on behalf of Minors.

Leslie Ellen Shear for Association of Certified Family Law Specialists, Marjorie G. Fuller, Nancy Williams Olesen, Pamela Panasiti Stettner, Michael E. Lamb, Dawn Gray, Joan B. Kelly, Lawrence E. Leone, William G. Austin, Constance R. Ahrons, Harold J. Cohn, Sanford L. Braver, Frieda Gordon, James M. Hallett, Sidney J. Brown, Lynette Berg Robe, Michael Gottlieb, Tammy-Lyn Gallerani, Richard A. Warshak, Kenneth C. Cochrane, Neil S. Gossman, David R. Lane, Maureen Stubbs, Fred Norris, Dianna Gould-Saltman, Carol Silbergeld, Susan Ratzkin, Jeffrey M. Lulow, Dale S. Frank, Leslye Hunter, Ronald S. Granberg, James R. Flens, Rebekah A. Frye, Renée A. Cohen, Tracy Duell-Cazes, Marnee W. Milner, Jacqueline Singer, Erica L. Hedlund, James Livingston, Josephine A. Fitzpatrick, Michael A. Fraga, Timothy C. Wright, Avery Cooper, Lawrence W. Thorpe, Trevor C. Thorpe, Steven R. Liss, Mark J. Warfel, John R. Schilling and Mary McNeil as Amici Curiae on behalf of Minors.

MORENO, J.

In In re Marriage of Burgess (1996) 13 Cal.4th 25, 28-29, 51 Cal.Rptr.2d 444, 913 P.2d 473, we held that a parent seeking to relocate after dissolution of marriage is not required to establish that the move is "necessary" in order to be awarded physical custody of a minor child. Similarly, a parent who has been awarded physical custody of a child under an existing custody order also is not required to show that a proposed move is "necessary" and instead "`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.)" (Id. at p. 29, 51 Cal.Rptr.2d 444, 913 P.2d 473.)

In the present case, the superior court ordered that primary physical custody of two minor children would be transferred from their mother to their father if their mother moved to Ohio. The Court of Appeal reversed, holding that if the custodial parent "has a good faith reason to move ... the custodial parent cannot be prevented, directly or indirectly, from exercising his or her right to change the child's residence" unless the noncustodial parent makes a "substantial showing" that a change of custody is "essential" to prevent detriment to the children. We granted review to determine whether the Court of Appeal in the present case misapplied our holding in Burgess. We conclude that it did and reverse its judgment.

As explained below, we conclude that just as a custodial parent does not have to establish that a planned move is "necessary," neither does the noncustodial parent have to establish that a change of custody is "essential" to prevent detriment to the children from the planned move. Rather, the noncustodial parent bears the initial burden of showing that the proposed relocation of the children's residence would cause detriment to the children, requiring a reevaluation of the children's custody. The likely impact of the proposed move on the noncustodial parent's relationship with the children is a relevant factor in determining whether the move would cause detriment to the children and, when considered in light of all of the relevant factors, may be sufficient to justify a change in custody. If the noncustodial parent makes such an initial showing of detriment, the court must perform the delicate and difficult task of determining whether a change in custody is in the best interests of the children.

The father in the present case satisfied his initial burden of showing that the mother's planned move would cause detriment to the children, requiring a reevaluation of the children's custody. The superior court properly considered the relevant factors and did not abuse its discretion in deciding that a change in primary custody from the mother to the father would be in the best interests of the children if the mother moves to Ohio.

I. Facts

Susan and Gary LaMusga married on October 22, 1988, and had two children: Garrett, who was born on May 5, 1992, and Devlen, who was born two years later to the day on May 5, 1994. The mother filed an amended petition for dissolution of marriage on May 10, 1996, and requested sole physical custody of the children, who were living with her in the family residence. The father objected and requested joint legal and physical custody.

The parties were unable to agree on a visitation schedule and, pursuant to a court order, stipulated to the appointment of Philip Stahl, Ph.D, a licensed psychologist, to conduct a child custody evaluation. Pending this evaluation, the parties agreed to a visitation schedule under which the children would be with their father every Wednesday from 3:30 p.m. to 7:30 p.m. and Sunday from 10 a.m. to 5 p.m. The mother asserted that even this limited visitation with the father was detrimental to the children, causing Garrett to become overly aggressive, disorganized, unfocused, and to regress in toilet training, and causing Devlen to develop a facial tick, a stutter, and a squint.

In a report dated October 10, 1996, Dr. Stahl observed that "there has been a great deal of verbal hostility between Mr. and Mrs. LaMusga for years, at times escalating to some pushing and shoving between them.... Both acknowledge that communication has deteriorated completely and that there is no trust between them. Mrs. LaMusga is concerned that Mr. LaMusga lives in an unsafe environment, doesn't take adequate care of the boys and is not responsive to their needs. She would prefer that his time be even more limited."

"Additionally, Ms. LaMusga has expressed a desire to move with the boys to the Cleveland, Ohio, area.... [¶] In contrast, Mr. LaMusga is quite upset that she wants to take the boys to Cleveland, and describes the environment there as hostile to him. He believes that Ms. LaMusga has attempted to alienate him from both the boys and ... is quite concerned that, if she does get to move, he'll end up having no relationship with his boys whatsoever."

Dr. Stahl opined that, in general, both the mother and the father were "good enough parents," but noted that the mother was "struggling with supporting and encouraging frequent and continuing contact between" the children and their father. Dr. Stahl believed that "each parent has different positive qualities to give to the children and that it is in the children's best interest to maintain a relationship with each of them as they continue to grow." But he noted his concern "about the dynamic of conflict between Mr. and Ms. LaMusga and its impact on the children. They don't speak to one another, their conflict does filter down to the children, and the children do show some evidence of anxiety related to this. Additionally, their charges and counter-charges reflect the extent to which both parents are willing to go to make the other look bad, something that is clearly detrimental to Garrett and Devlen.... [T]he conflict level between the parents is the single-most significant problem, and it has been going on for years."

Dr. Stahl stated that the mother's...