In Re Marriage of Condon

JOHNSON, Acting P.J.

This case tests the very outer limits of a legal principle the California Supreme Court first announced in 1996. That principle allows a spouse with primary physical custody of a child to move away unless the other spouse can demonstrate the move would be against the best interests of the child. ( In re Marriage of Burgess (1996) 13 Cal.4th 25 [ 51 Cal. Rptr.2d 444 , 913 P.2d 473 ].) In Burgess, the approved move was 40 miles — from Tehachapi to Lancaster and was within the state of California. Here, respondent argues Burgess applies to justify a move-away of some 8,000 miles — from this state and nation to another, and from this continent on one side of the Pacific Ocean to another continent on the other side of that vast body of water.

With some reluctance we conclude this court should not interfere at this late date with the trial court's carefully constructed order allowing this relocation of mother and children. However, we find the order is not guaranteed enforceability in the Australian courts in its present form and remand for the trial court to obtain an enforceable concession of jurisdiction from respondent wife, a concession that party…