http://scholar.google.com There's your link. See the option buttons under the search bar? Forget the articles, check Case law. Hit the link to select your courts. Only select your state (which should give you appeals and supreme court. Federal courts don't deal with divorce, so make sure that isn't checked). For this primer, I've selected California. Play along, because it's fun.
My search terms here are "custody move away" without the quotes. Some beautiful results appear. The first result is Burgess, so let's open that up and have a quick read. The second paragraph tells us just about everything we need to know.
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 29*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."
Basically, Burgess said a parent moving can do whatever the hell they want, and it's damn near impossible for a noncustodial parent to stop them. Almost, but not quite. Here's the real money shot from the order, a bit further down:
In a "move-away" case, a change of custody is not justified simply because the custodial parent has chosen, for any sound good faith reason, to reside in a different location, but only if, as a result of relocation with that parent, the child will suffer detriment rendering it "`essential or expedient for the welfare of the child that there be a change.'"
In short, a noncustodial parent has to show the move is so detrimental that a change in custody is necessary. That's a hell of a burden! Before we move on, let's go all the way down and look at footnote 12, because it's infamous in California:
A different analysis may be required when parents share joint physical custody of the minor children under an existing order and in fact, and one parent seeks to relocate with the minor children. In such cases, the custody order "may be modified or terminated upon the petition of one or both parents or on the court's own motion if it is shown that the best interest of the child requires modification or termination of the order."
Joint custody means it's a best interest test. You'll always see me advocate for joint custody in California, simply because of that footnote. Let me ask you, do you know your state case law?
But let's go back to the search results. Notice that green text under Burgess? Over to the right, what year is that? 1996. Hmmm. That next one down, LaMusga (law moo-shay), what year is that? 2004. Maybe that newer stuff has something a noncustodial parent likes better. Let's give that a whirl. Stop and read the case, because it's awesome.
We were quick to emphasize, however, that "bright line rules in this area are inappropriate: each case must be evaluated on its own unique facts.
Oh? Sounds like Burgess is about to get flipped. A lengthy discussion follows in LaMusga. It generally summarizes each of the move away cases that were appealed since Burgess, or at least those of note. It clearly lays out the rules for move away cases in California. Burgess was not flipped, but the Supreme Court clarified some misinterpretations. Each of those cases in blue is a hyperlink to the actual case being cited (Google scholar ricks like this). Feel free to read those for context if you like (California guys should consider it a must).
One quick tool, and then I want to show you the power of that tool. While we're in LaMusga, let's go all the way to the top and click on"How Cited". What we see here is a selection of quotes from this landmark decision, and how many cases have similar citations. This has a couple of incredible uses. One I want to focus on more than others, but let's dismiss a few first.
One, you can find newer case law. I can't even begin to tell you how elated I've been to read a 1976 decision that was turned over in the 80s, then reversed back in the 90s, then a middle ground in the 00s. It's a lot of reading, and very tedious, but you don't want to cite something that's been overturned.
Two, it's a branching out point. Burgess was itself a landmark case, but it took years (ok, a decade) to spell out what the court meant. I'm not kidding about the importance of the cases between Burgess and LaMusga. If you understand the evolution of the case law, you have a good idea where things will end up.
And that brings us to three. Each case is unique. Some elements are similar. Some are different. A move away is not a move away. The specifics of each have their own merit, their own issues, and their own nuances. What I want to do is give you an example, using the power of Google Scholar. For this, we're going to deviate from the move away issue, and get into changed circumstances.
I was looking at what constitutes a change of circumstances in this fine state. Specifically, I was looking at whether a continued negative behavior would be enough to flip custody. This would be so on a "best interest" test, but is it enough "changed circumstance"? If it's a continued behavior, is it really a change?
Following the tips I above, I found cases like Burchard v Garay, Birnbaum, Enrique M v Angelina V. It brought me to a case I want to highlight here: Andrews http://scholar.google.com/scholar_case? ... as_sdt=4,5
Judges are inclined, for good reason, to tread carefully. Often, the "changed circumstance" that prompts reconsideration of an earlier finding is a change in the judge's assessment of expert opinions or a simple change in the judge's own comfort level. Given the enormous difficulty of assessing risk, the relatively brief period of time that a child remains a child and the enormous gravity of the decision on parents and children alike, we should not impose unnecessary restraints on judicial decision making in this area.(emphasis added)
That's a pretty powerful statement. Just one problem. The case isn't published, which means it can't be cited....unless you apply for permission to cite it.
And this brings us to an excellent point for a conclusion. Lessons learned:
- Google Scholar is a springboard. Delve into every case cited by one you think might apply to you.
Google Scholar is a springboard. Delve into every case that cites one you think might apply
Know your rules of procedure. Know what you can and can't cite. Know what you have to request permission to cite.
Additional points by fellow users here:
Continuing with California as an example, searching for custody move away finds 4,610 results while searching for "custody" "move away" finds 397. Since the addition of the quotes requires the exact strings of text to be present it helps tremendously to narrow down the results.
Another example for Indiana. Additional parenting time is a specific legal term describing ROFR time that is fairly unique to Indiana. Searching on additional parenting time finds 632 results while searching for "additional parenting time" finds 37.