Oscar-winning actress Halle Berry is entrenched in a bitter custody battle with her ex-husband Gabriel Aubry. The couple split in February of 2010 but has been in court recently fighting for custody of their four-year-old daughter, Nahla. Berry is now engaged to Oliver Martinez who is both a French actor and French citizen. Currently the main issue in the Berry-Aubry custody dispute is Berry’s request to move with Nahla to France. Although her new fiancé conveniently lives in France, Berry claims that she is motivated to move by a desire to keep her daughter safe. Berry argues that the paparazzi are endangering Nahla. Unlike the United States, France has laws that protect celebrities from the constant snapping of photos by the paparazzi. Additionally, Berry’s stalker Richard Franco has recently been released from prison and she argues that he is again a threat to her and Nahla.

Under California child custody laws, the standard for a move away case such as this depends on whether the parties already have a final custody and visitation order. However, regardless of whether a final order is in place, a judge will likely deny or grant a move-away request on the basis of the best interests of the child. Additional factors the judge will consider include but are not limited to: (1) the child’s interest in the stability of the current arrangement, (2) the distance of the move, (3) the current relationship the child has with both parents, (4) the reasons for the proposed move and (5) any other factors the court deems relevant. Although Berry argues that the move is motivated by a good faith desire to protect her daughter, the Family Court Services recommendation suggests that the move is not in Nahla’s best interest. Considering the distance between California and France, Nahla’s relationship with her father would be deeply affected by the move. According to the report, Nahla has a close relationship with Aubry and separating her from her father would be detrimental.

Under California Family Code Section 7501, “a parent entitled to custody of a child has a right to change the residence of the child, subject to the power of the court to restrain a removal that would prejudice the rights or welfare of the child.” The current custody arrangement between Berry and Aubry is unknown. If Berry is the primary physical custodial, Aubry could have an uphill battle in his challenge of the move-away request. However, if both parties jointly share physical custody of Nahla, Berry may have a difficult time convincing the judge that Nahla should be separated from her father.

As we have previously blogged, the Family Court Services report may have a dramatic impact on the outcome of a custody case. In this case, the mediator was concerned that Berry was currently entering her third marriage and requesting to move to her fiancé’s home country. If this marriage did not work out, it would not be in Nahla’s best interest to be uprooted once again. Despite the mediator’s recommendation that Nahla not be permitted to move, the mediator was unhappy with the behavior of both parties. According to the report, Berry and Aubry were both admonished for not putting aside their “personal issues” for the sake of Nahla.

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 attorney 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.