Tuesday, March 14, 2006

custody - relocation - no prior custody order

Collins v. Collins - Superior Court - March 13, 2006


Trial court's order denying mother's request to relocate was reversed on appeal.

Relocation -- The Gruber factors, while important, are but one aspect of the overall best interest analysis; they "take into account only...a small corner of the best interest cosmos." Where there is no existing prior order, it is error to place a higher burden on the relocating parent and to decide relocation first, then primary custody. "Nothing in our case law suggests that...where primary custody must be decided in the context of a relocation request, relocation should take a place of prominence and be the subject of an initial decision, which then leads inexorably to the custody decision....The focus of the court must be on determining which parent and which living situation provides a familial setting that better serves the children's best interests."

Stability -- Stability is important, but physical stability, i.e., staying in the same home, is just one factor. "A child's sense of stability involves more than just physical structures and location; stability with regard to caregiver and patterns of car must also be considered."

Primary caretaker - age of children -- Primary caretaker is an important factor no matter what the children's ages. There is "no support in the case law" for a contrary notion, which the lower court expressed.

Disposition - The appellate court has the option to decide the case on the merits where the record is sufficiently developed.