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Are We Asking the Right Questions? (Part 2)

August 29, 2011

Part 2 of 2 in the series: CARLSON: ARE WE ASKING THE RIGHT QUESTION?

Another Interpretation of Carlson

Does Carlson lead inescapably to this result? I believe it does not.

First, Carlson may be viewed as simply another affirmance of the trial court and a reaffirmation of the trial court’s broad discretion in custody cases. If the trial court had decided Carlson the other way, it might well have been affirmed on appeal also.

The Carlson court based its affirmance of the trial court’s restriction on moving the children on Civil Code section 4600(a), adopted in 1980, which declares that it is the policy of California “to assure minor children of frequent and continuing contact with both parents after the parents have separated or dissolved their marriage …” The gloss that has been placed on Carlson by many observers appears based on a misreading of the court’s holding. Carlson has been misinterpreted to equate “frequent and continuing contact with both parents” with “the best interests of the child.” As the Carlsonopinion itself makes clear, however, frequent and continuing contact with both parents is only one of many factors to be considered in determining the child’s best interests. The Court expressly stated:

“[W]e do not make the noncustodial parent’s ability
to exercise visitation the sole or preeminent
fact in cases such as this. We do, however, call
attention to it as one of the significant considerations
the trial court must take into account in
evaluating the best interests of the child in light
of all the evidence before the court.” Carlson,
supra, at 1336.

The Court further recognized that, in framing a custody order, the Court may consider all relevant factors, and must consider the child’s health, safety, and welfare, any history of abuse against the child, and the nature and amount of contact with both parents. Carlson, supra, at 1337.

The Carlson opinion itself, therefore, provides the proper framework for analyzing this perplexing issue:

1. The “best interests” rule still governs custody decisions.
2. The policy favoring “frequent and continuing
contact” is important, but it is not the sole criterion
to use in determining the best interests of
the child and is not to be equated with the “best interests”
rule.
3. The trial court continues to have wide discretion
in making custody orders, and the trial
court’s determination will not be reversed unless
an abuse of discretion is shown.

Conclusion

The “frequent and continuing contact” rule is important, but, as Carlson itself declares, it is not paramount. It is a consideration that must always be taken into account in determining the best interests of the children when deciding on the custodial parent’s right to move without losing custody of the children. There are many other factors, however, which must be decided and weighed in each case. If the “frequent and continuing contact” policy is accorded its proper place, but not made controlling as some would suggest, each trial court will be able to apply the facts of the particular case, exercise its discretion, and arrive at a sound result. The parent seeking to move for legitimate reasons will not be doomed to a form of serfdom, where he or she is forced to choose between parenthood and a new and presumably better life for herself or himself and the children. If Carlson is analyzed correctly, trial courts will refrain from asking the custodial parent the fatal question, “What will you do if the court orders the children to stay?” Instead, they will ask “Why do you feel the move is in the best interests of the child?” Attorneys representing parents seeking to move will suggest just such a question to the Court.

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

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