As we have previously blogged, Halle Berry is entrenched in a bitter custody battle with Gabriel Aubry. Berry and Aubry separated in 2010 and reached a custody agreement in 2011; however, the former couple’s agreement did not suit Berry after she got engaged to Oliver Martinez. Berry intends to relocate to France with her new fiancé, Oliver Martinez, but requested the court’s permission to bring her daughter along first. On Friday November 10th, the judge denied Berry’s request to allow her daughter, Nahla, to move to France.

In determining whether to grant or deny a parent’s request to move away with a child, the court must assume that the requesting parent will move regardless of the court’s ruling. Although it is not generally reality, this presumption requires the court to consider if it would be in the child’s best interest to maintain the same lifestyle or live further away from the moving parent. It is generally in a child’s best interest to remain in the same neighborhood, attend the same school, interact with the same friends, and maintain as much stability as possible. This is because schedules and routines can help a child adjust to the separation of his or her parents. However, move-away cases present a more complicated scenario. The court must consider two alternatives: either the child will be uprooted from his or her current life or the child will remain in the same location without one of his or her parents.

The overriding concern in any move-away case is the best interest of the child. The judge in the Berry-Aubry case likely relied heavily on an independent custody report provided to the court. The report stated that Nahla had a close and meaningful relationship with her father. Thus, the court determined that it was not in Nahla’s best interest to be separated from her father and reside primarily in France. In any San Diego custody and visitation case, the parties must attend mediation before the court will hear a custody and visitation motion. Generally, the parties will meet with a neutral at Family Court Services (“FCS”). If the parties cannot reach an agreement, the neutral will prepare a report, which will be filed in court. The parties may also agree to meet with a private mediator to negotiate custody and visitation issues. Private mediation is more expensive but can help the litigation process move more quickly.

Please contact us if you are considering a divorce from your spouse, a legal separation, or have questions regarding child custody and visitation. Nancy J. Bickford is the only lawyer in San Diego County representing clients in divorces, who is a Certified Family Law Specialist (CFLS) and who is actively licensed as a Certified Public Accountant (CPA). Don’t settle for less when determining your rights. Call 858-793-8884 in Del Mar, Carmel Valley, North County or San Diego.