Divorce With Respect

Potential Legislation RE: La Musga

by Diane Wasznicky

The opinion in La Musga affirmed the holdings in In re Marriage of Burgess relating to move-aways.  However, La Musga appeared to expand the trial court’s discretion in what factors it balanced or considered in making the ultimate determination (specifically the impact of the move on the children’s relationship with the non-moving parent).  The majority opinion also “clarified” that the language in Burgess, regarding “essential to children’s welfare, etc.,” meant “best interests.”

The opinion got a lot of press – much of it inaccurately describing the depth and impact of this decision on the handling of move-away cases in the courts.  The result of the rhetoric about what a major change this case represented was that the Coalition for Family Equity convinced Senator Burton to carry a bill that intended to abrogate the La Musga opinion.  The response to such proposed legislation was immediate and extensive.  The Judicial Committee staff and Senator Burton’s staff received hundreds of letters expressing opposition to the proposed bill.

As a result of this opposition, a meeting was set up at the Legislature with numerous Legislative Staff, especially Drew Liebert as Chief Counsel for the Assembly Judiciary Committee, proponents and supporters of the bill, and those in opposition.  The proponents view this legislation as a “women’s” issue (e.g., La Musga prejudices women and mothers) and apparently are supported by California Women Lawyers, the Commission on Status of Women, etc.  The groups opposed to the legislation and represented at the meeting were California Judges Association, Judicial Council (through AOC, Family Law Section of State Bar (Flex Com), Los Angeles Bar Association Family Law Section, ACFLS, and Southern California Chapter of AAML.

The meeting was a lengthy one and centered on the proponent’s position that the draft of the bill then under discussion was only intended to codify actual holdings from the Burgess case.  Unfortunately, most of those present disagreed that the proposed bill language was that limited.

The bill was re-drafted after the meeting but, in the opinion of opponents to the bill, the language was still not palatable nor limited to “codifying” Burgess.  The revised bill language proposed a number of things, such as:

  1. The custodial parent has the presumptive right to change the children’s residence – would this mean a parent who has 51% parenting time gets the presumptive right to move?
  2. The court could not consider any of the factors or issues set forth in La Musga in deciding whether to allow the children to move – what’s left?
  3. The court would have no right to grant a temporary restraining order restraining a move pending mediation and evaluation;
  4. La Musga would be totally abrogated;
  5. The non-moving parent would have to prove a change of circumstances unrelated to the move, plus that relocation was “detrimental,” plus that it was essential to the children’s welfare to change custody to the non-moving parent – a nearly impossible burden!

The bill was set for hearing in the Assembly Judiciary Committee in August but as a result of the overwhelming opposition at the last minute, Senator Burton withdrew the bill.  However, Senator Burton did get a promise from the Chair of the Assembly Judiciary Committee to hold a hearing on the bill (SB730) in the fall.  To date such a hearing has not been calendared but could be before long.

The proponents are not going to stop in their attempt to do away with the La Musga opinion.

View Our Areas Of Practice