In a previous San Diego Divorce Attorney blog post, I discussed the factors the court looks at when a party is requesting to move with the children.In two recent San Diego divorce cases, the court of appeal determined that the trial court misapplied the applicable legal standard when denying move away requests.

In both Mark T. v. Jamie Z. and F.T. v. L.J., the trial court was reversed for failing to assume that the move by the parent requesting the move will take place, and then under those circumstances, make a decision about with whom and under what circumstances the child should live. Instead, in both cases, the court denied the move-away and made its orders on the assumption that if the move was denied, the custodial parent would not move.

In Mark T. v. Jamie Z., Mother who had primary physical custody of Child, requested to move to Minnesota with the Child because she was unemployed and could not find work in San Diego, despite receiving child support and emergency state aid she was borrowing money from relatives to make ends meet, and she had family in Minnesota with whom she could live and provide child care assistance, the cost of living was lower and she planned to return to school part-time and had an internship in Minnesota. Although the FCS mediator recommended that Mother be allowed to move, the child psychologist believed the move should not be permitted because it was in the Child’s best interest not to remove him from a loving and capable Father. The psychologist’s recommendation assumed Mother would remain the primary care-taker with Father’s time increasing from 30% to 50% when the Child turned 5 years old. The court denied the move-away and adopted the psychologist’s recommendations, assuming that if the move-away was denied, that Mother would remain in San Diego with the child. The court of appeal reversed holding that the court misapplied the legal standard and avoided the ultimate question – what custody arrangement would be in the Child’s best interests, assuming Mother moved. The court also did not base its decision on all of the move-away factors and the one’s that were used, such as finding the move “suspect”, were without a basis for the findings.

In F.T. v. L.J., Father, who had primary custody of Child, requested to move Washington state with the Child because he was marrying a Washington state resident. Father originally obtained primary custody after Mother abused the Child, and Mother was convicted for battery against the Child. Mother had supervised visitation, which was later modified to unsupervised visitation. Both FCS and the psychologist recommended against the move. FCS proposed alternative child sharing schedules depending on whether Father remained in San Diego or moved. The court denied the move-away, finding that the move was not in the Child’s best interest and made an order assuming that Father would remain in San Diego. The Court of Appeal reversed holding that the court misapplied the legal standard, did not treat the Father’s plan to move as serious, erroneously required Father to show the move was necessary, only considered impact on Child’s relationship with Mother instead of all the move-away factors and failed to apply Family Code Section 3044’s rebuttable presumption that Mother should not be awarded custody because of her criminal conviction for battery of the Child.

The court must apply all of the move-away factors, including:
• Reason for the move;
• Whether the move is to frustrate the other parent’s contact;
• The child’s interest in stability and continuity;
• Distance of the move;
• Age of the children;
• Child’s relationship with both parents;
• Current child sharing.
• Child’s Existing contact with both parents;
• The relationship between the parents;
• The wishes of the children if mature enough;
• Child’s community ties;
• Child’s health and educational needs;
• Child’s circle of friends; and • Child’s sports/academic activities.
and make orders based on the assumption that the party requesting the move will move regardless of the court’s decision. The court can also make conditional orders, stating what the parenting plan will be effective upon the party actually making the move.
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TMZ.com reports that Charlie Sheen and Brooke Mueller have reached a custody agreement, which includes mutual drug testing. In the case of Sheen and Mueller, it appears the parties volunteered to submit to drug tests. But what if they didn’t volunteer to do so? Could the court order one, or both of them, to take a drug test?

Family Code section 3041.5, provides that “[i]n any custody or visitation proceeding…the court may order any person who is seeking custody of, or visitation with, a child who is the subject of the proceeding to undergo testing for the illegal use of controlled substances and the use of alcohol if there is a judicial determination based upon a preponderance of evidence that there is the habitual, frequent, or continual illegal use of controlled substances or the habitual or continual abuse of alcohol by the parent…”

Thus, the court may order a drug test, but only if it first determines, by a preponderance of evidence, that there is the habitual, frequent, or continual illegal use of controlled substances. Among the ways to show this is a conviction within the last five years for the illegal use or possession of a controlled substance. Family Code section 3041.5.

Last month, recording artist Ashlee Simpson filed for divorce from Fall Out Boy band member Pete Wentz. The parties have a 2 year old son, Bronx.

According to People.com, in Simpson’s Petition for Dissolution of Marriage she requested sole custody of their son with visitation rights to Wentz. On Tuesday, Wentz filed his Response requesting joint custody of their son. While there is speculation that this may mean Simpson and Wentz are headed for a custody battle, my experience as a San Diego divorce attorney tells me that isn’t necessarily the case.

One of the first steps in the divorce process is to file the Petition or, depending on what side of the case you are on, the Response. When there are children involved, the Petition and Response are how the parties first tell the court what type of custody and visitation order they would like. The options include: legal custody to the Petitioner or Respondent or joint legal custody, physical custody to the Petitioner or Respondent or joint physical custody, and child visitation to the Petitioner or Respondent. Because the Petition and Response are forms, once a party determines which option is best, they simply check the appropriate box. (Of course, this is just what is being requested, and not necessarily what the court will ultimately order.)