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