Bryant

In an initial custody determination the trial court awarded primary physical custody to the mother, who intends to move with the children to New Mexico. Because the trial court found the move was not motivated by bad faith, it did not abuse its discretion. We affirm.

Facts

Michael A. and Laurel C. Bryant 1 were married in 1985. They have two children of their marriage, ages six and nine. Before the parties had their first child they decided that Laurel would stay at home and be the primary caregiver to the children, while Michael would work to provide for the family. The parties continued this arrangement even after Michael moved from the family home in September of 1998.

After Michael moved out, the parties attempted reconciliation. From the time he moved until April of 1999, the family continued to have meals together and Michael stayed in the family home with the children two nights a week. Laurel refused to allow overnight visitation outside the family home because the children had not been told about the separation.

The children were informed of the separation in April of 1999. At that time, Michael was living with his father. Laurel refused to allow overnight…

I respectfully dissent. This is the second time this court has considered the best interests of the Bryant children. Michael A. Bryant (Father) previously and unsuccessfully petitioned for a writ of supersedeas. He asked that we stop the children from relocating to Albuquerque, New Mexico pending resolution of the appeal. I dissented then to the summary denial of the petition.

The majority opinion is apparently obedient to the text of In re Marriage of Burgess (1996) 13 Cal.4th 25 [ 51 Cal.Rptr.2d 444 , 913 P.2d 473 ] (Burgess). I say “apparently” because it is unclear whether a custodial parent who moves without bad faith may automatically take the children even if the trial court believes that such a relocation is detrimental to the children. In any event, the facts of the presenting case are more than “fairly distinguishable” from those in Burgess. Consequently we should not be bound thereby and a departure is warranted. (People v. Triggs (1973) 8 Cal.3d 884, 890-891 [ 106 Cal.Rptr. 408 , 506 P.2d 232 ].)

I recognize that appellant must demonstrate, as a matter of law, that the trial court abused its discretion in order to obtain reversal. (In re Marriage of Williams (2001)…