## Facts

- Wendy A. Burgess (mother) and Paul D. Burgess (father) dissolved their marriage and disputed custody and relocation of their two minor children.
- Both parents worked for the California Department of Corrections; they separated in May 1992 when the children were four and three.
- By stipulation and practice, Wendy served as the children’s primary caretaker and had primary physical custody; the dissolution judgment provided joint legal custody, sole physical custody to Wendy, and liberal visitation to Paul.
- Wendy later announced an employment-related transfer from Tehachapi to Lancaster (about 40 miles away) and sought to relocate with the children.
- Wendy testified the move would advance her career and improve the children’s access to medical care, schools, and activities.
- Paul objected, claiming the move would interfere with the existing visitation schedule, though he acknowledged the commute was manageable.
- The trial court permitted Wendy to retain physical custody and relocate, adjusted visitation (alternate weekends plus at least one midweek visit), and denied Paul’s request to change custody for lack of a substantial change in circumstances.
- The Court of Appeal reversed, concluding Wendy had not shown the move was “necessary,” and the state supreme court granted review.

## Issues

1. Whether a parent seeking to relocate with minor children must prove the move is “necessary” to retain or be awarded physical custody.
2. Whether a custodial parent’s proposed relocation, standing alone, constitutes a sufficient change in circumstances to warrant transferring physical custody to the noncustodial parent.
3. What role Family Code § 7501 and the “best interests of the child” standard play in postjudgment relocation disputes and appellate review.

## Decision

- The state supreme court reversed the Court of Appeal and reinstated the trial court’s custody and visitation order.
- The court held the relocating parent does not bear a burden to establish that a move is “necessary” as a condition of retaining physical custody.
- Relying on Family Code § 7501, the court recognized a custodial parent’s presumptive right to change the child’s residence, subject to judicial power to restrain a move that would prejudice the child’s rights or welfare.
- The court concluded the trial court acted within its discretion in determining the relocation and continued physical custody with Wendy served the children’s best interests while preserving Paul’s relationship through liberal visitation.
- The court reaffirmed that a final custody order may be modified only upon a substantial change in circumstances affecting the child’s welfare; a good-faith relocation request does not automatically satisfy that requirement.

## Legal Principles

- A custodial parent seeking relocation is not required to prove the move is “necessary” in either an initial custody determination or a postjudgment relocation dispute.
- Under Family Code § 7501, a custodial parent may change the child’s residence unless the nonmoving parent shows the move would prejudice the child’s rights or welfare, allowing the court to impose protective orders when warranted.
- Family Code § 3020’s policy favoring frequent and continuing contact does not create a veto over relocation; the policy may be met through orders providing liberal visitation for the noncustodial parent after a move.
- When a final custody order exists, the parent seeking to change physical custody must demonstrate a substantial change in circumstances affecting the child’s welfare; relocation alone does not compel a custody transfer.
- Appellate review of custody and relocation orders is deferential; the question is whether the trial court could reasonably conclude its order served the child’s best interests.

## Conclusion

The court rejected a judicially created “necessity” requirement for custodial-parent relocation, reaffirmed the statutory presumption permitting a custodial parent to move absent prejudice to the child, and held that modifying a final custody order still requires a substantial change in circumstances, with broad deference to the trial court’s best-interests determination.


In re Marriage of Burgess, 13 Cal. 4th 25 (1996)