| BY JAMES D. SCOTT, CERTIFIED FAMILY LAW | | | | These special circumstances include, but |
| SPECIALIST | | | | are not limited to the following:" |
| COPYRIGHT 2007 | | | | The special circumstances listed do not |
| When the parent with the most child | | | | include sharing the costs of |
| sharing time moves across the country, | | | | transportation in a move-away case, but |
| extra efforts must be made for the child | | | | appellate courts have recognized that |
| or the children to keep frequent and | | | | code section as providing just this kind |
| continuing contact with the parent and | | | | of relief. |
| other family members who remain behind. | | | | In the appellate case of Wilson v. Shea |
| A move-away by the custodial parent | | | | (2001) 87 Cal.App.4th 887 the trial |
| diminishes the percentage of calendar | | | | court was found to have discretion to |
| time spent by the child with the parent | | | | reduce Guideline support to allow the |
| who remains behind. This has the double | | | | creation of a travel fund to be managed |
| whammy or triple whammy of causing an | | | | by the paying parent. To do this, the |
| increase in the child support payment | | | | trial court had to compute the regular |
| when the parent left behind has been | | | | Guideline amount first, take evidence of |
| ordered to pay support. A second | | | | the cost of the transportation, and then |
| unfortunate effect of the move-away is | | | | note the special circumstance. |
| the negative hit to the amount of time | | | | In Wilson the court found that given the |
| that the child is able to spend with the | | | | importance of contact to the child with |
| parent left behind. The frequency of | | | | the parent left behind, and the |
| those periods of access to the child | | | | practical necessity of a travel fund |
| diminishes and the stability of the | | | | when a case presents the special |
| parent/child relationship is | | | | circumstance of out-of-state visitation, |
| jeopardized. The third negative impact | | | | the promotion of frequent and continuing |
| of a move-away is the cost of | | | | contact with both parents after the |
| transportation. When the parent moves | | | | parents have separated is certainly a |
| two thousand or three thousand miles | | | | factor that may mean the rote |
| from the west coast to the mid west or | | | | application of the Guideline formula is |
| from the west coast to the east coast, | | | | unjust or inappropriate in some cases. |
| round trip tickets to fly frequently | | | | This has nothing to do with another sort |
| cost hundreds of dollars for each visit. | | | | of case where the parent moving away has |
| If the children are grade school age or | | | | some kind of malicious intention to |
| younger, the parents may reasonably | | | | disrupt the relationship of the child |
| resist allowing them to fly alone and | | | | with the parent left behind. |
| thus, the cost of a round trip ticket is | | | | This is not to say that one hundred |
| doubled or tripled for the escort. Even | | | | percent of the travel cost should be |
| when the move is regional and a two | | | | paid from the child support that would |
| hundred mile to four hundred mile | | | | otherwise be ordered. It simply gives |
| distance with a lack of airport access | | | | guidance to parents in an unfortunate |
| may make driving more practical, the | | | | move-away situation that they should try |
| cost of gasoline and the use of an | | | | to be creative and reasonable and |
| automobile are significant deterrents to | | | | flexible with each other while using the |
| visitation. | | | | child support as a resource to help |
| THE GUIDELINE | | | | cover the costs of transportation. In a |
| In 1992 the infamous Guideline of the | | | | case with a shorter distance, it could |
| California Family Code became effective. | | | | mean that each parent would travel |
| It mandated adherence by the courts. | | | | halfway to hand off the child to the |
| In the early years following the | | | | other parent. |
| implementation of the Guideline, the | | | | When faced with a move-away decision, |
| courts tended to follow the mathematical | | | | both parents would be encouraged to use |
| formula almost with a lockstep | | | | reasonableness and to look at the |
| procedure. As a point though, relief | | | | unfortunate situation from the eyes of |
| for transportation costs may be found in | | | | the child who will certainly want to |
| California Family Code §4057(b)(5), | | | | maintain the stability of the |
| which says, | | | | relationship that the child has enjoyed |
| "Application of the formula would be | | | | with the parent left behind and with the |
| unjust or inappropriate due to special | | | | other members of the family left behind. |
| circumstances in the particular case. | | | | |