Metropolitan News-Enterprise


Friday, February 3, 2006


Page 1


Supreme Court Overturns C.A. Ruling in Custody Dispute

Justices, in Unanimous Decision, Say Evidentiary Hearing Not Necessarily Required in ‘Move-Away’ Cases


By KENNETH OFGANG, Staff Writer/Appellate Courts


Staff Writer/Appellate Courts

An evidentiary hearing is not required on a non-custodial parent’s objection to the custodial parent’s plan to move with the child to another state, the California Supreme Court unanimously ruled yesterday.

The justices reversed a ruling by Div. Six of this district’s Court of Appeal that such hearings are always required. Justice Marvin Baxter said the trial judge is in the best position to determine whether such a hearing is necessary, and that a judge may permit the move without such a hearing if it is clear that the custodial parent is acting in good faith and that the child will not be harmed by the move.

At issue was a plan by a San Luis Obispo mother, Nicole F. Brown, to move to Las Vegas with her 14-year-old son, Cameron Yana. Brown’s ex-husband, Anthony Yana, who has rights of visitation but not physical or legal custody, objected, citing the high crime and school dropout rates in Las Vegas and his son’s reluctance to leave San Luis Obispo.

San Luis Obispo Superior Court Judge Donald G. Umhofer, after appointing an attorney to represent the son’s interests, approved the “move-away” request following a hearing that did not include a presentation of evidence. The son’s attorney said his client was “conflicted” about the move and said different things when he was interviewed at each parent’s home.

Unwise Parenting

Umhofer reviewed the history of the parties’ prior proceedings. The couple had divorced in 1994, and Brown won sole legal and physical custody in 1999 after a judge reviewed psychological evaluations and found that Yana had made some unwise parenting decisions, including driving with his son in the car despite having had his license suspended for drunk driving.

The judge acknowledged that moving away from a community in which a child has established relationships is uncomfortable, but said that was insufficient to block the move. Brown, he said, had established that she had a good faith reason for wanting to move—her husband had gotten a job in the Las Vegas area and the couple was planning to move  there with their two young children as well as with Cameron—while Yana had not made a prima facie showing that the move would be detrimental to the child.

A divided panel in Div. Six reversed and remanded for an evidentiary hearing. But Baxter, writing for the high court, said that no such hearing was required.

“Like the trial court, we conclude [the proffered evidence of social and educational conditions in Las Vegas and in Nevada generally ] was insufficient to justify an evidentiary hearing given the record as a whole,” Baxter wrote.

The justice did not go as far as to say that a noncustodial parent cannot object to a move-away, a position argued by Brown’s attorney, Jeffrey Doeringer of Huntington Beach. The Family Code section that authorizes courts to “restrain a removal” of a child to another community if the move would be detrimental to the child does not limit its effect to cases where the objecting parent has some form of custody, Baxter wrote.

But in the case before the court, the justice went on to say, the noncustodial parent did not make the statutorily required showing.

Good Faith Conceded

Yana, he noted, conceded that Brown did not intend to move to deprive him of visitation rights or that the move would traumatize Cameron any more than other such “move away” divorce cases.

“There was no issue of any bad faith on Brown’s part, and no concern expressed that she might use the relocation to limit Yana’s contact with Cameron,” Baxter wrote.

Doeringer told The Associated Press that the ruling clears up an unsettled area of divorce law where many judges were automatically granting requests for hearings that were expensive and emotionally taxing on children who had to testify.

“The cost of such litigation was very significant,” Doeringer said. “This shows that noncustodial parents will need some juice behind their claims to warrant a hearing.”

Yana’s lawyer, John F. Hodges of Arroyo Grande, could not be reached for comment. Judy Wood of Atascadero represented the minor.


Copyright 2006, Metropolitan News Company