Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Diego County, No. D516439, Lisa Guy Schall, Judge.
NARES, J.
In this dissolution of marriage proceeding between Ryan Birse and Anna Edlund, a Swedish citizen, Anna sought a "move-away" order, allowing her to move to Sweden with their child, Madison, who is also a Swedish citizen. A trial was held on the issue over four days. At the end of the trial, the court granted Anna's request, finding that it was in the best interests of Madison that Anna be allowed to move back to Sweden.
In the interests of clarity, and as is the custom in family law proceedings, we refer to the parties by their first names.
Ryan appeals, asserting the court erred in granting the move-away request because (1) the court denied him due process by refusing to allow him to obtain a vocational exam to determine if Anna could remain in the United States on a work visa; (2) there was no competent evidence to support a finding Anna had to leave the country for immigration/employability reasons; (3) the court failed to acknowledge that Anna had abducted Madison; (4) the court failed to decide whether child abduction constituted child abuse; (5) the court failed to engage in an analysis under Family Code section 3087; (6) the court failed to ensure its order would be enforceable in Sweden; (7) the court failed to consider enforceability in determining whether to grant the move-away request; (8) the court failed to engage in the eight-prong test provided in In re Marriage of LaMusga (2004) 32 Cal.4th 1072 (LaMusga); and (9) the court abused its discretion in preauthorizing Anna to take Madison anywhere in the world she wanted.
All further statutory references are to the Family Code.
We affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
Ryan and Anna met in Sweden in 2002. Anna is a Swedish citizen. Ryan is a citizen of Canada and the United Kingdom. They married in Sweden in 2007. They have a daughter together, Madison, born in 2004. Madison is a citizen of Sweden and Canada and travels on a Swedish passport. The parties have always shared parenting on a roughly 50-50 basis. Anna also has a daughter from a previous marriage named Juni. Anna and her previous husband, Antti Suua, have shared joint custody of Juni since their divorce in 1999.
In August 2007 Ryan and Anna, both of whom are scientists holding doctoral degrees, moved to the United States. Prior to moving to the United States, they obtained work visas through their employers. Ryan has a TN work visa obtained through his employer, the Burnham Institute. It enables him to stay in the United States so long as he is employed as a scientist.
Anna is in the United States on a J-1 visa, which was obtained on her behalf by her employer, UCSD Scripps Institute of Oceanography. According to Anna, her employment there was of limited duration and would end in June 2009. At that time she would have to leave the country or find another job in her field to extend her visa.
A. Anna Takes Madison to Sweden
In May of 2009, Anna took Madison to Sweden, promising she would return after a short visit. However, about a week later she told Ryan she was not going to return to the United States with Madison. She filed for divorce in Sweden and received a job offer from the University of Stockholm.
Ryan filed a petition under the Hague Convention to compel her return. A hearing was held before a Swedish court on the matter and it decided that the United States had jurisdiction over custody issues involving Madison as it was the country of her domicile. The court concluded, after hearing evidence, that "since Ryan Birse as the current custody holder had not conceded that Madison should remain in Sweden, it is obvious—and also not challenged by Anna Edlund—that the detention violates the right to care for Madison which Ryan Birse has in the U.S. and this right would also have been exercised if the detention in Sweden had not taken place. [¶] Madison's detention in Sweden is thus unlawful. She shall therefore be transferred to the U.S. if there are no impediments to enforcement." In doing so, the court ordered the enforcement of the transfer to be carried out by police, even though Anna stated that she would voluntarily comply with the court's order:
"Anna Edland got permission from Ryan Birse to leave the U.S. and travel to Sweden with Madison by fraudulently deceiving him that she and Madison would return to the U.S. after about two weeks. She also emphasized the lie by booking return tickets. The District Court does not believe Anna Edlund's explanation that she suddenly decided to stay here in Sweden. Anna Edlund has thus demonstrated cunning in order to get her own way where it concerns the child's residence. Therefore, sufficient reasons exist, despite Anna Edlund's promise to voluntarily abide by the Court's decision, for the enforcement of the transfer to take place through the action of the police authorities."
While the proceedings were taking place in Sweden, Ryan filed for divorce in San Diego requesting sole custody of Madison.
After Ryan returned home with Madison, he filed for a restraining order requesting that Anna only be allowed to have contact with Madison if she turned over her travel documents. Anna responded by filing an ex parte application requesting child sharing, and to vacate the restraining order. Ryan opposed the ex parte application. Ultimately, the parties stipulated to share custody of Madison upon Anna turning over Madison's travel documents.
B. Order To Show Cause re Move-Away
In September 2009 Anna filed an order to show cause (OSC) requesting that she be permitted to move to Sweden with Madison. In the OSC she stated that her job would be ending in June 2010. She stated it was always her intention to move back to Sweden when her job ended here. She denied that she "abducted" Madison, stating that she travelled with her to Sweden to apply for a professorship in Sweden and that she went with Ryan's "consent and best wishes." She also requested the assistance of Family Court Services (FCS) to determine Madison's best interests.
C. FCS Mediation
In September 2009 Ryan and Anna attended a pre-OSC mediation with a FCS mediator regarding Anna's request that she be allowed to move to Sweden with Madison. Following the mediation, the mediator recommended that Madison remain in San Diego, and Ryan and Anna continue to share joint custody of Madison.
In doing so, the mediator noted that Anna had acknowledged telling Ryan that she would change her name and go underground if he did not permit her to live in Sweden with Madison. The mediator concluded Anna had presented no information which supported the petition to move with Madison to Sweden at that time. The mediator noted that she had a job in San Diego at least through June 2010. While Anna would feel more comfortable being in the presence of her family, that did not justify separating the child from a parent who had been actively involved in her life since birth and shares equal custody of her.
The mediator noted that while Madison had an older sister living in Sweden, she had not lived with them for a year and that sibling bond was not important to Anna as she had sent the older sister back to Sweden. Ryan's concerns about Anna's family "bad-mouthing" him to Madison were justified given the declarations from family members Anna submitted for the mediation. The mediator also concluded that Ryan appeared to be the more likely to share custody than Anna.
A second FCS mediation was held in January 2010. Again the mediator recommended the move-away request be denied. In doing so, the mediator noted that Anna would likely have problems co-parenting given her inability to listen during the mediation.
D. Motion for Vocational Study
Ryan brought a motion seeking to have a vocational expert assess Anna and then forward the results to an immigration expert to determine what work visas Anna could qualify for.
Anna opposed the motion, arguing that such vocational examinations are used to determine a party's ability to work in order to determine spousal support. She also argued that a vocational exam would have no impact on her immigration status or ability to work temporarily in the United States. Also, she argued that the main reason for the move was that she was from Sweden and wanted to return there, and a vocational evaluation would not be relevant to that issue.
Ryan filed a reply indicating that if Anna was not going to use her vocational ability/immigration status as a reason for the move-away, he would not need a vocational evaluation, but if she did so, he was entitled to discovery on such issue.
At the hearing on the motion, the court inquired of Anna's counsel, "Is she in imminent danger of being deported or of a hearing or anything of that sort?" Counsel responded, "No, Your Honor." Counsel for Ryan then stated, "It's not an issue then."
The court denied the request for a vocational evaluation at that time. However, the court found "if at any time [Anna] receives information from Immigration that her status is being reviewed for any reason and/or if she is going to be deported, she must immediately notify her attorney so that opposing counsel can be notified."
E. Motion in Limine re "Abduction" of Madison
Prior to trial Ryan made a motion seeking to exclude all evidence that Anna did not abduct Madison to Sweden.
At the hearing on the motion the court indicated that it would be bound by the findings of the Swedish court, but declined to make a finding of child abduction because the Swedish court did not ever use those words in their opinion. The court found that Anna's actions in taking Madison to Sweden were relevant because one issue was whether or not Anna would facilitate Ryan's continuing contact with Madison.
The court also ruled that Anna was bound by the findings of the Swedish court and could not testify contrary to its findings.
F. Motion in Limine re Immigration/Vocational Issues
Prior to trial Ryan brought a motion in limine to exclude all evidence Anna could not remain in the United States dues to immigration/vocational issues.
In response, Anna argued her immigration status and ability to stay in this country and work were relevant and that she never stated that she would not use this issue at trial.
At the hearing on the motion, Ryan renewed his request for a vocational examination of Anna. The court responded that the issue was not vocational, as Anna's experience and qualifications were not being questioned. The court pointed out that she had been employed since living in the United States and was presumably employable. Rather, the issue was how her immigration status affected her employability in the United States.
The court indicated that Ryan could consult with an immigration expert he had used in the past and inform the court if the expert needed a vocational examination to render an opinion as to whether she could remain employed in San Diego. The court set a hearing date to address the needs of Ryan's immigration expert. At that hearing, Ryan indicated he was not able to get the information he needed from his expert. The court stated that it would address the issue further when trial commenced again in nine days and also gave Ryan permission to appear ex parte prior to that time if he needed to do so. He was also given permission to re-raise the issue of the vocational exam during trial, but he never did so.
G. Trial on Move-Away Request
1. Anna's testimony
Anna has extended family in Sweden, including her stepmother, her sisters and brothers, nieces and nephews and close friends. Neither she nor Ryan has family in San Diego.
The parties signed a premarital agreement while they lived in Sweden that called for Swedish law to govern any disputes regarding their marriage. According to Anna, the reason for this provision was that she felt Sweden was her home country and she would only be residing in the United States temporarily.
Anna's work is in the evolution and ecology of marine microbes. Her area of expertise is rather narrow and this led to the post-doctoral position in San Diego. Her position was conditioned upon her obtaining her own funding. She obtained funding through the Swedish government, but only for her first year.
Anna only intended to remain in the United States temporarily because it is not her home and her older daughter, Juni, lives in Sweden. Ryan's employment in the United States was temporary too, and she felt that he knew their relocation to the United States was temporary as well.
As was explained above, Anna is in the United States on a J-1 visa, which was obtained on her behalf by her employer, UCSD Scripps Institute of Oceanography. According to Anna, her employment there was of limited duration and it would have originally ended in March 2009, but she was able to obtain extensions through June 2010. The J-1 visa can only be held for a maximum of five years and is contingent on funding. In the United States, funding has almost disappeared and is more readily available in Sweden. She applied for other employment in San Diego, but has received no responses to her resumes. Even if she could find other employment, she would still want to return to Sweden. She has a job offer from the University of Stockholm, which is a rare opportunity for her to advance academically and eventually become a full professor. According to Anna, Ryan stated that he would be willing to return to Sweden if he received a job offer from the university as well.
Anna has a positive co-parenting relationship with Juni's father, Antti Suua. Anna and Juni communicate almost every day, and Madison and Juni speak via Skype once or twice a week.
Since Madison was returned to the United States, Ryan has acted hostile and angry. He once told her that if she ever divorced him, he would make sure that she would never see Madison again. Anna questions Ryan's judgment in terms or parenting, and believes he does not respect her at all as a co-parent.
Anna testified that if she was allowed to relocate to Sweden, she would facilitate face-to-face visitation during the holidays and via Skype in between visits. Anna would also welcome Ryan to visit Madison in Sweden. Anna stated that she would agree to be bound by the jurisdiction of California regarding custody so long as Ryan remained in the United States.
2. Ryan's testimony
Ryan and Anna have always shared parenting on a roughly 50-50 basis.
In June 2009 he spoke with an immigration specialist about his green card/visa options. Ryan currently works at the Burnham Institute where his employment is based upon funding through grants. However, if that funding no longer existed, his employer would pay him. Ryan stated that he could easily locate another job in San Diego should he become unemployed. However, Ryan admitted telling Anna in September 2009 he felt his time in San Diego was "up in the air."
Ryan was aware Anna wanted to return to Sweden, but did not know she always intended to do so. He believes that he and Anna intended to leave Sweden for a long period of time with no concrete plans to return. Anna began mentioning wanting to return in February 2009. He admitted he agreed to move back to Sweden if he were also offered a job at the University of Stockholm.
Ryan felt that what Anna did in taking Madison to Sweden was illegal.
3. Antti Suua's testimony
Counsel for Ryan objected to Suua's testimony based upon relevance. The court overruled the objection, finding his testimony relevant to show Anna had a previous history of successful co-parenting.
Suua testified that he and Anna have successfully co-parented Juni on an equal basis since they separated 10 years before. Juni returned to Sweden in May 2009, but Anna and Juni are and remain very close. Since Juni returned to Sweden, she and Anna communicate by Skype two to three times a week. Juni and Madison are close sisters and Juni misses Madison.
4. Anna's expert, Robert Simon
Anna's expert, psychologist Dr. Robert Simon, testified in theoretical terms, as he did not meet with either party or with Madison. He testified that the recommendations by the FCS mediator were flawed as they did not meet minimum forensic standards and appeared biased. He also testified that there is no way to predict detriment to a child if they are separated from a parent. In general, children struggle when either parent is absent from their lives. Facilitating frequent communication can help lessen the feeling of disconnection from an absent parent.
However, he acknowledged on cross-examination that if there is a child abduction involved, his opinion could change dramatically:
"When children are abducted, that is normally—I'm not going to say always because there's no 'always' in psychology—that is normally a huge problem. It can speak to a lack of empathy [on the] part of the abducting parent. It can speak to a lack of—it can speak to the presence of huge psychopathology... [on the] part of a parent. From a legal perspective and our understanding of laws and parental and child's rights, abduction is a huge problem. [¶] When abduction gets thrown into the mix and that term is used and understood to be factual, it changes the way that a forensic psychologist sees a case. It's a single fact that can alter everything."
He also opined that he considered child abduction child abuse and that it reflected poor co-parenting skills.
5. Ryan's expert, Beatriz Heller
Psychologist Dr. Beatriz Heller also testified in theoretical terms, as she had not met either of the parties or Madison. She opined that most psychological evidence indicates the disruption of a normal parent/child relationship always results in detriment to the child and that detriment is exacerbated if there is a strong bond. She testified she felt it was doubtful a parent could maintain a strong bond with a child if he or she is separated from that parent for a long period of time. Daily contact through Skype and contact every few months during school breaks might lessen the detriment to the child in a move-away situation.
She also opined that child abduction reflects very poor co-parenting skills.
6. FCS mediator, Janine Hardy
The FCA mediator, Janine Hardy, testified as well. She stood by her earlier recommendations that Ryan should have custody of Madison should Anna move to Sweden.
H. Court's Decision
The court granted Anna's motion, finding that it was "in Madison's best interest to allow her to relocate to Sweden with Anna." In doing so, the court recited the factual and procedural history of the case that is detailed, ante. The court made detailed findings in support of its decision. The court found the evidence showed the parties initially intended to remain in the United States for a prolonged period of time. However, the court noted that the parties were not U.S. citizens, and were here on work visas, which may come to an end. The court found it was more likely that Ryan could extend his employment here than Anna.
The court noted that the parties share physical custody of Madison and have both been significantly involved in her care. The court found that a significant factor was whether "Anna will facilitate Ryan's ability to have regular, ongoing contact with Madison." The court noted that Madison has a healthy relationship with both parents and her emotional bond with both of them is strong.
The court addressed Anna's actions in taking Madison to Sweden and then threatening not to come back: "Anna purposefully deceived Ryan into believing she and Madison would be returning to the United States after her job interview. Although the Swedish Court was highly critical of Anna's decision and motives in failing to return to the United States, they never made a specific finding that she had abducted Madison."
The court found that Anna and Antti Suua have maintained a good relationship in an effort to co-parent Anna's older daughter, Juni, over the past 10 years. The court found that Ryan would not likely do any better job of co-parenting than Anna.
The court noted that there is no evidence that Anna has any likelihood of continued employment in the United States and that expert testimony was not necessary to determine that fact, given that Ryan is aware of Anna's qualifications and job history. The court found that since neither party was a citizen of this country, they remain here on work visas, and there is no ability to predict what the future job market might be for them, "the court is most concerned with creating constancy and stability for Madison."
The court found it significant that Madison has extended family and a half sister in Sweden and "the court would like to see those relationships maintained." The court found that the best interests of Madison are "consistency and stability and this is most likely to continue in the home country where she was born; where there is extended family; where there is a half sister and familiarity that will allow her to make the necessary adjustments once leaving the United States."
The court found that Anna's employment in this country will end very soon, and if she were required to relocate to Sweden without Madison, "the impact on Madison would be considerable. [¶] Although Madison has created relationships in the United States, there is no substitute for blood ties with the family with which she has had a previous relationship. Madison seems to have reignited those relationships and there [are] no indication[s] from the findings of the Swedish Court she has had any difficulty in re-assimilating into Sweden at all."
The court made several conditions on the move-away to enable Ryan to enforce its terms. It required Anna to post a bond in the amount of $50,000 that Ryan could use to enforce the order if she violated any custody or visitation rights. Anna was required to register the order in Sweden if necessary. Anna was ordered (and indeed agreed during trial) to submit to the continuing jurisdiction of the California courts in custody matters.
DISCUSSION
I. STANDARD OF REVIEW
In general, "[t]he standard of appellate review of custody and visitation orders is the deferential abuse of discretion test." (In re Marriage of Burgess (1996) 13 Cal.4th 25, 32 (Burgess).) A trial court abuses its discretion if there is no reasonable basis on which the court could conclude that its decision advanced the best interests of the child. (In re Marriage of Melville (2004) 122 Cal.App.4th 601, 611; Burgess, supra, at p. 32.) A discretionary order that is based on the application of improper criteria or incorrect legal assumptions is not an exercise of informed discretion and is subject to reversal even though there may be substantial evidence to support that order. (Linder v. Thrifty Oil Co. (2000) 23 Cal.4th 429, 436; Caro v. Procter & Gamble Co. (1993) 18 Cal.App.4th 644, 655.)
II. APPLICABLE LEGAL PRINCIPLES
This matter was before the court for determination of an initial permanent custody order. Although the trial court had previously entered an interim custody order, there was no final custody determination in place at the time of the hearing. "In an initial custody determination, the trial court has 'the widest discretion to choose a parenting plan that is in the best interest[s] of the child.' [Citation.] It must look to all the circumstances bearing on the best interest[s] of the minor child. [Citation.] Family Code section 3011 lists specific factors, 'among others, ' that the trial court must consider in determining the 'best interest[s]' of the child in a proceeding to determine custody and visitation: '(a) The health, safety, and welfare of the child. [¶] (b) Any history of abuse by one parent against the child or against the other parent.... [¶] (c) The nature and amount of contact with both parents.' " (Burgess, supra, 13 Cal.4th at pp. 31-32, italics omitted.)
"In an initial custody determination, a parent seeking to relocate with the minor children bears no burden of establishing that the move is 'necessary.' The trial court must... consider, among other factors, the effects of relocation on the 'best interest[s]' of the minor children, including the health, safety, and welfare of the children and the nature and amount of contact with both parents." (Burgess, supra, 13 Cal.4th at p. 34.) In general, the trial court shall consider "the effects of relocation on the 'best interest[s]' of the minor children." (Ibid.)
III. ANALYSIS
A. Failure To Order Vocational Examination
Ryan first asserts that the court denied him due process by denying his request to conduct a vocational examination to determine Anna's employability/immigration status in the United States based upon her representation she would not use that issue at trial, and then in turn relying on her immigration status/employability in determining whether to grant the move-away motion. This contention is unavailing.
First, Anna did not concede that she would not use her employability/immigration status in the United States at trial. Rather, at the hearing on Ryan's motion for a vocational examination, the court questioned her counsel, "Is she in imminent danger of being deported or of a hearing or anything of that sort?" Counsel responded, "No, Your Honor." Counsel for Ryan then stated, "It's not an issue then." At trial Anna never asserted she was in imminent danger of being deported or that her immigration status was being reviewed.
Moreover, vocational examinations are allowed to determine spousal support, and the party's ability to maintain the marital standard of living: "In a proceeding for dissolution of marriage or for legal separation of the parties, the court may order a party to submit to an examination by a vocational training counselor. The examination shall include an assessment of the party's ability to obtain employment based upon the party's age, health, education, marketable skills, employment history, and the current availability of employment opportunities. The focus of the examination shall be on an assessment of the party's ability to obtain employment that would allow the party to maintain herself or himself at the marital standard of living." (§ 4331, subd. (a).) Spousal support was not at issue at the trial of this matter.
Additionally, when Ryan raised the issue again by way of a motion in limine, the court stated it would revisit the issue if he provided information from his immigration expert that a vocational examination was necessary for him to opine that Anna could continue to be employed in the United States. During trial, Ryan never did so.
Moreover, the court was not required to find that Anna had to leave the United States because of her employment/immigration status. In an initial custody determination, such as was at issue at the trial of this matter, courts have the "widest discretion to choose a parenting plan that is in the best interest of the child." (§ 3040, subd. (b); Burgess, supra, 13 Cal.4th at pp. 31-32.) It is only when a move-away contest comes after a final, permanent custody order that courts must determine if there is a change in circumstances making the move-away, and therefore a change in custody,
" ' "essential or expedient for the welfare of the child." ' " (Burgess, supra, 13 Cal.4th at p. 38; In re Marriage of Battenburg (1994) 28 Cal.App.4th 1338, 1344 [In a case involving joint physical custody, "[i]n deciding whether it is in the child's best interests to change custody [when one custodial parent seeks to relocate with the minor children], the trial court should ask itself whether the custody change is 'expedient-essential-imperative.' "].)
Thus, the court properly considered the fact that Anna was a Swedish citizen, who had strong family ties there, and who had been offered a position at the University of Stockholm. Her testimony was that she wanted to return to her home country. The court found it significant that Madison had extensive family in Sweden and found it to be in her best interest to relocate there in part because of these family ties. Both parties' employability/immigration status was but one factor the court considered in granting Anna's move-away motion.
B. Evidence That Anna Had To Leave the Country
Ryan next asserts that the court had no competent evidence to base its decision that Anna had to leave the country for immigration/employability reasons. We reject this contention.
First, the court did not make a finding that Anna had to leave the country because of immigration/employability issues. While the court considered both parties' employment and immigration status in making its decision, the court did not make a finding that Anna had to leave the country at any particular time.
Moreover, the court properly considered both parties' testimony as to their employment and immigration status and considered that evidence in conducting its best interest analysis. The court found that Ryan's immigration status and employment were more secure and that it appeared Anna's temporary employment was likely to end soon. The court properly considered both parties' testimony on this issue in making its best interest analysis.
C. Failure To Make Finding Anna Abducted Madison and That This Constituted Child Abuse
Ryan asserts that the court erred by failing to make a specific finding that Anna abducted Madison when she took her to Sweden and that this constituted child abuse. We reject this contention
Anna's actions in taking Madison to Sweden, and in deceiving Ryan that she would return to the United States after a few weeks, are facts that were relevant to the court's assessment of what was in Madison's best interests. However, the court was not required to find Anna had "abducted" Madison. As the court noted, the Swedish court never made such a finding. Rather, after assessing the evidence, the Swedish court found that California had jurisdiction over custody issues because it was the place of Madison's domicile.
Further, her actions were only one factor among many that the court considered in making its decision. The record reflects that the court did consider Anna's actions in this regard and its negative reflection on her ability to co-parent. However, the court ultimately decided it was in Madison's best interests, given all the facts before it, that Anna be allowed to return to Sweden with Madison. We cannot say this was an abuse of discretion.
D. Failure To Conduct Analysis Under Section 3087
Ryan asserts that the court erred in failing to conduct an analysis under section 3087, which he asserts is more "stringent" than a simple best interest analysis. We reject this contention.
Section 3087 provides: "An order for joint custody may be modified or terminated upon the petition of one or both parents or on the court's own motion if it is shown that the best interest of the child requires modification or termination of the order. If either parent opposes the modification or termination order, the court shall state in its decision the reasons for modification or termination of the joint custody order." (Italics added.)
As we have explained, ante, where the court is making an initial custody determination, the best interest analysis applies, and the court looks to the factors enunciated in section 3011. (Burgess, supra, 13 Cal.4th at pp. 31-32.) Section 3087 applies when there is already an existing final custody order. (Burgess, at p. 40, fn. 12.)
E. Enforceability of Order in Sweden
Ryan asserts that the court did not make a sufficient effort to ensure that its order is enforceable in Sweden. We reject this contention.
In international move-away cases, there are a few additional considerations a court must address, one of which is ensuring its enforceability. (In re Marriage of Condon (1998) 62 Cal.App.4th 533, 547 (Condon).) Because the Hague Convention does not ensure enforceability of move-away orders in the country to which the child relocates, the order must use other mechanisms to ensure its enforceability. (Id. at pp. 547-548, 555-557.)
The Court of Appeal in Condon suggested several enforcement remedies that courts could fashion in an international move-away order that can alleviate the enforcement problem: (1) requiring the moving parent to post a substantial bond that would be forfeited if that parent failed to comply with the order; (2) a reduction or termination of spousal or child support upon a breach; and (3) requiring the moving parent to concede the jurisdiction of California courts. (Condon, supra, 62 Cal.App.4th at pp. 548-562.)
Here, as is detailed, ante, the court here did fashion remedies similar to those suggested in Condon. It required Anna to post a substantial bond in the amount of $50,000. She was required to register the order in Sweden if necessary. She was ordered (and indeed agreed during trial) to submit to the continuing jurisdiction of the California courts in custody matters. The court acted well within its discretion in adopting these safeguards.
F. LaMusga Factors
Ryan asserts that the court erred in failing to engage in the eight-prong test provided by the California Supreme Court in LaMusga, supra, 32 Cal.4th 1072 to be utilized in addressing move-away cases. This contention is unavailing.
In LaMusga, supra, 32 Cal.4th at p. 1101, our high court identified eight nonexclusive factors courts should ordinarily consider in deciding whether to grant a move-away request: (1) the child's interest in stability and continuity in the custodial arrangement; (2) the distance of the move; (3) the age of the child; (4) the child's relationship with both parents; (5) the relationship between the parents, including their ability to communicate, cooperate, and put the best interests of the child above their own; (6) the wishes of the child, if he or she is mature enough for such an inquiry to be appropriate; (7) the reasons for the proposed move; and (8) the extent to which the parents are currently sharing custody.
Specifically, Ryan asserts the court did not address factors one, five, seven, and eight. However, the court did address these issues. Ryan simply disagrees with the court's assessment of those factors, and its ultimate exercise of discretion in granting the move-away request.
As to the first factor, the court found that children, to the extent possible, need the participation of both parents in their lives. The court also found that because both parties are not citizens of this country, were here on work visas, and there was no way to predict what the future job market may be, the court was most concerned with creating constancy and stability for Madison. The court found the best possibility for consistency and stability was to allow her to live in her home country, where she was born, and where she has extended family, and a half sister. The court found that while she had made some relationships in the United States, there was no substitute for the ties she had with her blood relatives, and there was no indication she would have trouble reassimilating in Sweden.
As to the fifth factor, the court discussed Anna's taking Madison to Sweden, deceiving Ryan into believing that she would return in a few weeks, while in fact she did not plan on returning. However, the court also noted that Anna and her former husband Antti have maintained a good relationship in an effort to co-parent their daughter Juni over the past 10 years. The court also found that Ryan would not likely do any better job co-parenting than Anna. The court also put in place several enforcement mechanisms to ensure Anna complied with the custody and visitation orders.
As to the seventh factor, the reason for the move, the court noted that Anna's employment in this country would likely end soon, and Madison had extended family and a half sister in Sweden. Ryan asserts these facts do not show a "compelling" reason for the move-away. However, as discussed, ante, Anna was not required to make such a showing.
As to the eighth factor, the court did note that the parties had shared joint physical custody of Madison since her birth.
In sum, the court considered all relevant factors in determining whether to grant Anna's move-away request, and Ryan cannot show that the court abused its discretion in the ultimate decision it made.
G. Relocating Out of Sweden
Ryan last objects to that part of the order that states "Should Anna move the residency of the child out of Sweden, she must give Ryan 60-days advance written notice." He asserts that this provision preauthorized Anna to take Madison anywhere in the world.
However, this provision actually is intended to protect Ryan's rights and ensure he would always know Madison's whereabouts. It would put him on notice of an intended move and allow him to avail himself of the procedures and protections put in place by the court.
DISPOSITION
The judgment is affirmed. Anna shall recover her costs on appeal.
WE CONCUR:HUFFMAN, Acting P. J., McINTYRE, J.