YEGAN, J. I respectfully dissent. This is the second time this court has considered the best interests of the Bryant children. Michael A. Bryant (Father) previously and unsuccessfully petitioned for a writ of supersedeas. He asked that we stop the children from relocating to Albuquerque, New Mexico pending resolution of the appeal. I dissented then to the summary denial of the petition.
The majority opinion is apparently obedient to the text of In re Marriage of Burgess (1996) 13 Cal.4th 25 [51 Cal.Rptr.2d 444, 913 P.2d 473] (Burgess). I say “apparently” because it is unclear whether a custodial parent who moves without bad faith may automatically take the children even if the trial court believes that such a relocation is detrimental to the children. In any event, the facts of the presenting case are more than “fairly distinguishable” from those in Burgess. Consequently we should not be bound thereby and a departure is warranted. (People v. Triggs (1973) 8 Cal.3d 884, 890-891 [106 Cal.Rptr. 408, 506 P.2d 232].)
I recognize that appellant must demonstrate, as a matter of law, that the trial court abused its discretion in order to obtain reversal. (In re Marriage of Williams (2001) 88 Cal.App.4th 808, 812 [105 Cal.Rptr.2d 923].) In my view, the uncontested facts and the trial court’s statement of decision show an abuse of discretion.
[797]In pertinent part, the trial court explained: “There are two realistically possible scenarios in this case. The court could conditionally grant physical custody of the children to the father (with liberal visitation to the mother) if the mother moves away, with joint physical custody if the mother remains in Santa Barbara. In all likelihood, the court could force the joint-physical-custody scenario, since it is unlikely that mother will move away if it means she thereby becomes the non-custodial parent. This would be the optimum scenario for the best interests of the children, since it would preserve their lifelong social structure in the Santa Barbara area with very successful schooling, church, sports, paternal extended family and maternal aunt and would maximize the children’s frequent and continuing contact with both parents.”
Nevertheless, the trial court opted for what can be and must be characterized as a custody arrangement that was not the optimum scenario for the children. It expressly said that it was “compelled to select what is next best in the children’s interest.” Having sat as a trial court judge in a family law départment and having similarly agonized over rulings in contested move-away cases, I “appreciate the family law court’s dilemma. A custody decision is one of the most serious decisions a family court judge is required to make. Move-away cases are particularly troublesome because, in most situations, they start with a parent’s election to move.” (In re Marriage of Williams, supra, 88 Cal.App.4th at p. 813.) That is what happened here.
Laurel C. Bryant (Mother) has elected to move for but one reason, the emotional support of her parents and family in New Mexico. To be sure, and as the majority point out, this is not a bad faith reason. From mother’s standpoint, the move is in her best interests. That does not necessarily translate to the move being in the best interests of the children. They are now nine and seven years old and have had a nurturing and successful childhood in Santa Barbara. To uproot them for selfish reasons is not in their best interests.3 Judicial sanction of the move has adverse consequences which, as a matter of law, outweigh the single consideration for the move. Phrased otherwise, the relocation is to the detriment of the children.
Both the trial court and the majority read Burgess as a “bright-line” rule. The trial court said: “[Ujnder Burgess precedent, the trial court’s inquiry begins and ends with whether the relocation is for a bad faith purpose such as frustrating the non-custodial parent’s frequent and continuing contact with his children. Where the relocation is not in bad faith, the court may not [798]require the relocating parent to show necessity or justification for the move.” The majority opinion expressly agrees. (Maj. opn., ante, at p. 794.) I am hopeful that the California Supreme Court did not intend that Burgess be interpreted in a “straight) acket” fashion. A family law court is a court of equity (In re Marriage of Fini (1994) 26 Cal.App.4th 1033, 1044 [31 Cal.Rptr.2d 749] and it is required to weigh all relevant considerations in determining what is in the best interests of the children.
Burgess speaks to the “widest discretion” enjoyed by the trial court in determining what is in the best interests of the children in a custody dispute. (Burgess, supra, 13 Cal.4th at pp. 31, 34.) It also requires the trial court to consider the prejudice to the children from a relocation. (Id., at pp. 32, 34.) A move should not be allowed where such would be “ ‘detrimental to the child.’ ” (Id., at p. 35, quoting In re Marriage of Ciganovich (1976) 61 Cal.App.3d 289, 293 [132 Cal.Rptr. 749].) Burgess expressly states that “bright line rules in this area are inappropriate: each case must be evaluated on its own unique facts.” (Burgess, supra, 13 Cal.4th at p. 39.) In my view the trial court did not want to make the order that it did.4 Even from the cold record, it appears that the relocation of these children is to their detriment. (Id., at p. 35.)
When the trial court expressly indicated what the optimum scenario would be, it should have stopped and entered that order. By definition, and in the words of the trial court, it selected what was “next best.”
The trial court, the court’s appointed expert, and the parties’ therapist all agreed that the move to Albuquerque was not a good parenting decision. The court’s appointed expert opined that mother wanted to move to “escape a failed marriage.”
In its seven-page statement of decision, the trial court says: “Father urges the court to challenge the Burgess decision by finding that the best interests of the children so outweigh the mother’s reasons for the move-away that the court should pressure the mother to remain in Santa Barbara. If there were a case in which to do exactly that, this is the case.”