The Burgess decision and the Wallerstein brief

Divorcing couples traditionally incorporate into their settlement contracts a stipulation regarding relative degree of freedom to relocate, especially if the relocating parent has primary custody of the children. Typically, the primary custodial parent might be restricted from moving outside of the state in which the divorcing couple has resided, or there may be a specific mile radius or travel time radius beyond which the primary custodial parent cannot relocate. In recent years, courts have become increasingly permissive with regard to allowing relocation by primary custodial parents, and the once stringent requirements that needed to be satisfied to justify relocation are being progressively relaxed. In 1996, the Supreme Court of California in In Re the Marriage of Burgess, 913 P.2d 473 (Cal. 1996), has set a precedent for even further relaxation of these once rigid restrictions. The Burgess decision has been frequently quoted in the State of California and is receiving widespread attention elsewhere. It is the author's opinion that this precedent is ill conceived and will most likely result in significant grief and suffering for the nonrelocating parent as well as the relocating children.