Jacob A. v. C. H. (2011) , Cal.App.4th

FACTUAL AND PROCEDURAL BACKGROUND
Mother and Jacob A., father, were never married but they have a daughter, K.A., now seven years old, who suffers from Type I juvenile diabetes. When mother and father ended their relationship in December 2007, mother moved to Washington with the minor child. Mother indicated that she moved to escape an "unhealthy environment." Father claimed mother moved only to deny him his parental rights. Mother returned to California with the child and, in January 2008, father petitioned for custody of the minor child. Shortly thereafter, mother filed her first motion seeking permission to move to Washington with the minor child. After a brief evidentiary hearing, the court denied mother's request to move with the child and ordered joint legal and physical custody to the parents.

Mother and father ultimately agreed to the mediator's parenting plan, which precluded mother from relocating to Washington with the minor and gave the parents relatively equal parenting time. In August 2009, mother filed another request to move to Washington with K.A. and modify the parenting schedule accordingly. Mother said that, despite her best efforts, she could not find work where she was currently living, but she had a job waiting for her in Washington, as well as her extended family.

On October 16, 2009, Mark Cudney was appointed as the minor's counsel and the hearing on mother's request for a move-away order was continued to October 30, 2009. Prior to the continued hearing, Cudney prepared his own report. In his report, Cudney concluded that "[t]he parties are entitled to a full evidentiary hearing on [m]other's request to move the primary residence of the minor child to Washington. In the interim, the child should continue to reside in El Dorado County. The matter was then set for trial in March 2010.

At trial, mother testified about her failed efforts to find work locally. She described her extended family in Washington, as well as the two job offers she had pending in Washington. Mother opined that she would be better able to support K.A. financially in Washington, where finally she would have full-time employment. Mother described the parenting plan she envisioned if K.A. were permitted to move to Washington with her. Mother further agreed father could visit K.A. with "as little as 24-hours' notice." Father testified that if K.A. moved to Washington his contact with her would be "limited to nonexistent" because he could not afford the airfare to and from Washington. Father also testified he has significant experience with Type I diabetes, having lived with mother and K.A. He indicated that he believes he is perfectly capable of caring for K.A. when she is in his custody. Mediator Wilson testified that one of her greatest concerns about K.A.'s moving to Washington with mother was father's inability to pay for regular trips to visit K.A. In Wilson's opinion, it would be detrimental to K.A.'s relationship with father if they were not able to have frequent contact. The minor's counsel, Cudney, argued against mother's request. Cudney also expressed grave concern for the relationship between K.A. and father if K.A. was relocated to Washington. Cudney was further concerned with the effect a move would have on K.A.'s relationships with her paternal grandparents, her friends, her long-term babysitter, and her doctors.

The trial court subsequently ruled that mother's move was not motivated by bad faith. Nevertheless, the trial court concluded, "under the circumstances, given all of the evidence that has been presented, I do not feel that a move to Washington would be in [K.A.'s] best interest[s]. So I'm going to have to deny the request for the move-away.

DISPOSITION
The order of the trial court is reversed. The matter is remanded to the trial court for a new determination of custody and visitation based on mother's proposed move to Washington. Mother is awarded her costs on appeal.