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August 22, 2011

Part one in an ongoing series: CARLSON: ARE WE ASKING THE RIGHT QUESTION?

Few recent custody cases have attracted as much attention as In re Marriage of Carlson, 229 Cal.App.3d 1330 (1990), where, in a custody order, the trial court included a provision prohibiting either parent from moving the minor children outside California and the Court of Appeal affirmed. In an earlier article in this publication, Shelley L. Albaum, Seth Kramer and Harold J. Cohn provided an excellent in-depth review of Carlson. (See 13 News & Review 22 (Winter 1992).) The purpose of this article is not to provide yet another analysis of Carlson, but to focus on how the popular interpretation of Carlson may create a “lose-lose” situation for the custodial parent wishing to move, and to reframe the analysis.

A Common Interpretation of Carlson

In Carlson, following the separation, each parent had kept in close contact with the children. The mother wanted to move with the children to Pennsylvania, where her family resided, but the father contended the relocation would impair his visitation rights. The trial court found it was in the best interests of the children to maintain close ties with each parent. The Court of Appeal affirmed, holding that the trial court properly considered the impairment of the mother’s contemplated move on the father’s exercise of visitation and that the father did not have an affirmative burden to prove the move would be detrimental to the children because the best interests of children require close contact with both parents.

Carlson has been widely interpreted to mean that absent some unusual circumstance, a custodial parent may no longer move outside California with the children because of the paramount importance of maintaining contact with both parents.

The facts of Carlson fit a common pattern. If we assume that the custodial parent (1) expresses legitimate reasons for wishing to move with the children, (2) is a fit and loving parent and (3) has maintained close and continuing contact with the children, the Court is confronted with a painful dilemma. It must either (a) sever the ties between the non-custodial parent and the children or (b) frustrate the legitimate aspirations of the custodial parent to travel, seek employment, and engage in the constitutional right to travel. See In re Marriage of Fingert, 221 Cal.App.3d 1575 (1990).

To tell a custodial parent he or she cannot move outside California, even for the best of reasons, on pain of losing custody of the children, places him or her in a singularly painful dilemma.

Inevitably, the same question is asked by the Court: “On which does the parent desiring to move place a higher value, the children or the factors that influence the move, such as a job, remarriage, or the like?” As one prominent authority recently stated at a meeting of the Los Angeles County Bar Family Law Section, the question inevitably boils down to: “What will you do if the Court says the children can’t move?” Indeed, the mother in Carlson conceded that her children’s relationship with their father was more important than her educational pursuits and her emotional ties to her parents. Carlson, supra, at 1338.

It is submitted that, thus framed, this question places the parent seeking to move in a “can’t win” situation. If the answer is “I’ll go,” it guarantees that he or she will be ordered to leave the children behind, because the inference is he or she doesn’t care enough about the children to engage in the self-sacrificing act of staying put. If, on the other hand, he or she replies, “I’ll stay if I can’t take my children with me,” this demonstrates that the move is, indeed, less important than custody of the children; the children will stay and so will the parent. Carrying Carlson to its logical extreme produces a result where, in every case, the result is pre-ordained that the parent will be told that he or she cannot move without losing custody of the children. If this is truly the meaning of Carlson, it is a harsh and inflexible result indeed.

Chris Moore
Christopher M. Moore is a certified family law Specialist and a principal of Christopher M. Moore & Associates, a professional law corporation in Torrance, California.

Next week: Another Interpretation of Carlson

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