Filed 12/28/23 Marriage of Guldseth CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for 

publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication

or ordered published for purposes of rule 8.1115. 

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

In re the Marriage of ALISON 

GULDSETH and DAVID 

GULDSETH.

ALISON GULDSETH,

Respondent,

v.

DAVID GULDSETH,

Appellant.

 D081206

 (Super. Ct. No. 18FL000052N)

APPEAL from an order of the Superior Court of San Diego County, 

Victor M. Torres, Judge. Affirmed. 

The Appellate Law Firm, Aaron Myers and Mark Kuntze, for 

Appellant.

Alison Guldseth, in pro. per., for Respondent. 

INTRODUCTION

Alison Guldseth (Mother), who had sole legal and primary physical 

custody of her two minor children, sought a family court order to relocate 

with the children to Tennessee. David Guldseth (Father) contends the court 
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abused its discretion in granting the move-away request, in two ways: (1) it

failed to give appropriate weight to Mother’s testimony that the move was 

motivated, in part, by her desire to lessen the children’s time with Father and 

(2) it “misapprehend[ed]” the inquiry into the children’s interest in stability 

and continuity of the current custodial relationship. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

After nearly 20 years of marriage and five children, Mother filed a 

petition to dissolve her marriage to Father on January 3, 2018.1 (Guldseth I, 

supra, D077308.) On December 19, 2019, following a six-day trial on custody 

of the three still-minor children, the family court issued a final custody 

determination.2 (Ibid.) The court awarded joint legal custody with primary

physical custody of the eldest of the three children to Father and primary 

physical custody of the youngest two, J.G. and D.G., to Mother. Each parent 

was granted visitation with the other child/children on alternating weekends, 

and at certain other times, depending on the child. At the end of the school 

year, Father’s time with J.G. and D.G. would step up to an equal timeshare 

with Mother. (Ibid.) 

On March 10, 2020, the family court eliminated Father’s step-up plan, 

finding a significant change of circumstances based on a mental health 

1 We draw the relevant background facts from our prior opinion In re

Marriage of Guldseth (Mar. 2, 2023, D077308 [nonpub. opn.] (Guldseth I)), in 

which Father appealed from multiple final and/or postjudgment orders of the 

family court arising out of the dissolution of the parties’ marriage. (Ibid.) 

There we affirmed each of the challenged rulings. 

2 Once a final judicial custody determination is in place, a party seeking 

to modify a permanent custody order can do so only if he or she demonstrates 

a significant change of circumstances justifying a modification. (See 

Montenegro v. Diaz (2001) 26 Cal.4th 249, 255; In re Marriage of Burgess

(1996) 13 Cal.4th 25, 37 (Burgess).) 
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counselor’s determination that J.G. and D.G. were unhappy with having 

increased time with Father.3 (Guldseth I, supra, D077308.) The court also 

found the eldest minor child’s involuntary disenrollment from school and lack 

of consistent therapy constituted a significant change of circumstances to 

warrant further modification of the custody order, but declined to change the

child’s primary physical custody from Father to Mother “out of concern that 

doing so would be even more detrimental to the child’s mental health.” (Ibid.) 

A judgment of dissolution was entered May 14, 2020, incorporating the 

modified December 19, 2019 final custody determination.

On May 17, 2021, the family court modified custody again following a 

hearing on Father’s request for order seeking a change in the custody 

orders.4 Father was awarded sole legal and primary physical custody of the 

eldest minor child, who was then about six months shy of 18. Mother was 

awarded sole legal and primary physical custody of J.G. and D.G. Father’s 

parenting time with the two younger children was every Tuesday and 

Thursday from 3:00 p.m. to 7:00 p.m. and alternate weekends from Friday to 

Sunday. Father was also ordered to participate in conjoint therapy with J.G. 

3 Father appealed the family court’s March 2020 order modifying the 

December 2019 final custody order. In Guldseth I, we rejected his contention 

that the court had abused its discretion and affirmed the custody order. 

(Guldseth I, supra, D077308.) 

4 Father filed a notice of appeal on June 24, 2021, challenging the court’s 

May 17, 2021 custody order. We dismissed this appeal, case number 

D079338, for procedural deficiencies on March 25, 2022 and denied Father’s 

subsequent motion to reinstate the appeal for lack of good cause on July 18, 

2022. On our own motion, we take judicial notice of certain records from 

D079338, including: Father’s March 12, 2021 request for order modifying

custody; the family court’s May 27, 2021 minutes; and Mother’s October 27, 

2021 request for move-away order. (Evid. Code, § 452, subd. (d)(1).)
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and D.G., at the discretion of the children’s therapist and with the children’s 

input, “to address issues related to parent-child relationship, conflict 

resolution, and effective communication.” These were the custody orders in 

effect when Mother sought the move-away order at issue in this appeal.

On October 27, 2021, while Father’s numerous appeals were pending in 

Guldseth I, Mother filed a request for order seeking to relocate to Johnson 

City, Tennessee with J.G. and D.G. After an evidentiary hearing in which 

eight witnesses, including the parties, testified, the family court granted 

Mother’s request. Father appeals,5 asserting the trial court abused its 

discretion in doing so.

DISCUSSION

I.

Legal Principles Governing A Move-Away Request

As the family judge here acknowledged, move-away orders are one of 

the more difficult decisions courts are asked to make, particularly where, as 

here, they involve equally loving parents. They require family courts to 

navigate the irreconcilable tension between a parent’s desire to move with 

the child, the child’s need for stability, and the interests of the child in 

5 Father filed notices of appeal on October 6, 2022 and November 3, 2022

from the court’s October 4, 2022 minute order granting Mother’s request for a 

move-away order. The notices of appeal were premature because the minute 

order directed Mother’s attorney to prepare a final order. (See In re Marriage 

of Drake (1997) 53 Cal.App.4th 1139, 1170 [“[W]hen the trial court’s minute 

order expressly indicates that a written order will be filed, only the written 

order is the effective order”].) However, the court entered a Findings and 

Order After Hearing on November 10, 2022. Thus, we treat the premature 

appeals as being from the subsequent appealable order. (Cal. Rules of Court, 

rule 8.104(d); Brown v. County of Los Angeles (2014) 229 Cal.App.4th 320, 

322, fn. 1.) Both notices of appeal have been consolidated under case number 

D081206.
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maintaining regular contact with both parents. (In re Marriage of LaMusga

(2004) 32 Cal.4th 1072, 1101 (LaMusga).) Because move-away cases involve 

“heart-wrenching circumstances,” our Supreme Court has emphasized that 

“this area of law is not amenable to inflexible rules” and “we must permit our 

superior court judges . . . to exercise their discretion to fashion orders that 

best serve the interests of the children in the cases before them.” (Ibid.) 

We reverse the family court’s order only where the appellant has shown 

the court has abused its discretion by unreasonably concluding that its order 

was in the best interest of the child. (Burgess, supra, 13 Cal.4th at p. 32.) 

We presume the move-away order is correct. (In re Marriage of Ciprari

(2019) 32 Cal.App.5th 83, 93−94.) We do not reweigh the evidence or assess 

the credibility of witnesses; instead we defer to the court’s adjudication of the 

facts. (Pope v. Babick (2014) 229 Cal.App.4th 1238, 1246.) And because the 

determination of “[w]hat constitutes the best interest of a child presents an 

inherently factual issue” (Guardianship of A.L. (2014) 228 Cal.App.4th 257 

268), we evaluate the court’s ultimate determination with cautious restraint. 

The burden is on Father, as the appellant, to establish an abuse of discretion. 

(In re Marriage of Brandes (2015) 239 Cal.App.4th 1461, 1473−1474.) 

Relevant here, when a parent who has sole physical custody under an 

existing judicial custody order seeks to relocate a child, he or she “ ‘has the 

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.’ ” 

(Burgess, supra, 13 Cal.4th at p. 29,quoting Fam. Code,6 § 7501.) Because of 

this presumptive right to change the child’s residence, the custodial parent 

bears no burden of establishing that the planned move is “ ‘necessary.’ ” 

(Burgess, at p. 29; LaMusga, supra, 32 Cal.4th at p. 1078.) 

6 All further undesignated statutory references are to the Family Code. 
6

The presumption under section 7501 shifts the burden to the 

noncustodial parent to show the move would cause detriment to the child,

rendering it “ ‘essential or expedient’ ” for the child’s welfare that there be a 

custody change. (LaMusga, supra, 32 Cal.4th at pp. 1088−1089; Burgess, 

supra, 13 Cal.4th at p. 38.) The likely impact of the move on the noncustodial 

parent’s relationship with the child is relevant in determining whether there 

is detriment and, while it may be sufficient to justify a change in custody 

when considered with all relevant factors, detriment alone does not mandate 

a change in custody. (LaMusga, at p. 1095.) Rather, it requires the family 

court to perform “the delicate and difficult task” of determining whether a 

change in custody is in the child’s best interests. (Id. at p. 1078.) 

The burden of demonstrating a change in circumstance requiring a 

change of custody is on the noncustodial parent. (Burgess, supra, 13 Cal.4th 

at p. 37.) “ ‘[I]n view of the child’s interest in stable custodial and emotional 

ties, custody lawfully acquired and maintained for a significant period will 

have the effect of compelling the noncustodial parent to assume the burden of 

persuading the trier of fact that a change [in custody] is in the child’s best 

interests.’ ” (Ibid., quoting Burchard v. Garay (1986) 42 Cal.3d 531, 536 

(Burchard).) Otherwise, the court “ ‘should preserve the established mode of 

custody.’ ” (Burgess, at p. 38, quoting Burchard, at p. 535.) 

In determining whether to modify an existing custody order in light of 

the custodial parent’s request to move the child’s residence, the family court 

is required to consider what have become known as the LaMusga factors. 

(LaMusga, supra, 32 Cal.4th at p. 1101.) Although not an exhaustive list, 

these factors include: “the children’s interest in stability and continuity in 

the custodial arrangement; the distance of the move; the age of the children; 

the children’s relationship with both parents; the relationship between the 
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parents including, but not limited to, their ability to communicate and 

cooperate effectively and their willingness to put the interests of the children 

above their individual interests; the wishes of the children if they are mature 

enough for such an inquiry to be appropriate; the reasons for the proposed 

move; and the extent to which the parents currently are sharing custody.” 

(Ibid.) Because there are no bright line rules, a court should evaluate each 

case “on its own unique facts.” (Burgess, supra, 13 Cal.4th at p. 39.) 

II.

The Trial Court Did Not Abuse Its Discretion in Granting Mother’s MoveAway Request

Father does not claim there is insufficient evidence to support the

family court’s findings and order. Rather, he contends the court abused its 

discretion in allowing J.G. and D.G. to move to Tennessee with Mother, in 

two ways: (1) the court “ignored” Mother’s testimony she was motivated to 

move, in part, because she wanted the children to spend less time with 

Father and thus the court failed to give appropriate weight to Mother’s 

asserted bad faith; and (2) the court “misapprehend[ed]” or “misapplied” the 

LaMusga inquiry into the children’s interest in stability and continuity of the 

current custodial background by prioritizing J.G.’s expressed desire to move 

away from Father. We are not persuaded. 

Based on the record before us, the family court followed the appropriate 

procedures and correctly applied the appropriate standards in granting 

Mother’s move-away request. Father acknowledges the court correctly began 

its analysis with the presumption that Mother, as the parent with sole 
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physical custody7 of the children, had the right to change the children’s 

residence. (§ 7501; Burgess, supra, 13 Cal.4th at p. 29.) The presumption 

required Father to make the initial showing that the move would cause 

detriment to the children which would require the court to reevaluate the 

children’s custody. (LaMusga, supra, 32 Cal.4th at p. 1078.) 

Father attempted to make this showing by claiming Mother alienated 

him and withheld the children from him. He also alleged Mother had a 

history of domestic violence. However, there was contradictory testimony 

regarding these claims. The family court found that there was no credible 

evidence that Mother would refuse to facilitate contact with Father, and 

there was no documented finding of domestic violence. 

Next, the court carefully considered each of the LaMusga factors and 

concluded, on balance, that Father had not shown that it would be in the 

children’s best interests to transfer physical custody from Mother to Father. 

(LaMusga, supra, 32 Cal.4th at p. 1101.) In balancing the various factors, 

the court concluded several of them were neutral, including the minors’ ages, 

the support of extended family in both locations, and the distance of the 

move, which the court found was not “insurmountable” by someone (like 

Father) who earns $353,000 a year. The court also found that the parents’ 

relationship and communication was “extremely poor” and “contentious” to be

neutral factors. 

7 The Family Code provisions governing custody of children do not use 

the term “ ‘primary physical custody.’ ” (LaMusga, supra, 32 Cal.4th at 

p. 1081, fn. 1.) There is only “ ‘sole physical custody’ ” or “ ‘joint physical 

custody.’ ” (Ibid.) And “ ‘[s]ole physical custody’ ” means “a child shall reside 

with and be under the supervision of one parent, subject to the power of the 

court to order visitation.” (§ 3007.) Because J.G. and D.G. resided with 

Mother and had visitation with Father, Mother had sole physical custody of 

the children. Father does not challenge this fact. 
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The family court found several other factors weighed in favor of 

granting the request. Addressing the children’s interest in stability and 

continuity in the custodial arrangement, the court noted the children’s desire 

to move. The court expressed concern that J.G.’s visits with Father were so 

she could go shopping, and the relationship appeared to “center around 

material gifts” instead of being “honest, open [and] caring when other people 

aren’t watching.” The court also found that Father was not child-focused; he 

was “self-focused.” Father’s main concern was to “look like the good guy and 

not the bad guy, to the detriment of his relationship with his children.” The 

court found that the children’s “difficulties” were “due to trauma and stress,” 

and those mental health concerns weighed in favor of the move. 

The court recognized that D.G. was “clearly bonded” with Father and 

suggested that J.G. was “more bonded than we see here” and the relationship 

had been “better lately.” However, the court found the recent improvement 

in the relationship with J.G. to be a “small comfort” because “it couldn’t have 

got[ten] much worse.” It noted that there are “various online methods for the 

children to retain a bonded and continuing relationship with Father and their 

brothers despite a move to Tennessee.” 

Ultimately, the court found the move’s impact on the children would be 

“a positive one.” There were no concerns about the school in Tennessee, 

health care, or the availability of extra-curricular activities. 

The evidence supporting the court’s findings on these factors is not 

disputed by Father. Instead, Father complains that the court did not 

properly consider Mother’s motivation for the move-away, which he argues 

was to limit contact between him and the children. He contends the court 

should have concluded that a move-away would create additional disruption 
10

in his relationship with the minor children, justifying a denial of Mother’s 

request. We disagree. 

The court considered Mother’s motivation. It did not find credible 

evidence that Mother would refuse to facilitate contact with Father. It 

weighed the evidence about the children’s preferences and the state of their 

relationships with Father, including J.G.’s ongoing refusal to attend visits 

with Father and Mother’s testimony that the move would alleviate some of 

the daily stress of Father’s visitation requests. It also considered various 

methods for the children to retain a bonded and continuing relationship with 

Father. 

The court also did not “misapprehend” or “missappl[y]” the LaMusga 

inquiry into the children’s interests in stability and continuity. It carefully 

considered each of the factors. The court is entitled to give whatever weight 

it deemed appropriate to any of the factors in determining the children’s best 

interests. (LaMusga, supra, 32 Cal.4th at p. 1093 [“The weight to be 

accorded to such factors must be left to the court’s sound discretion”].) 

Discretion is only abused if no judge “could have reasonably concluded that 

the order in question advanced the ‘best interest’ of the child.” (Burgess, 

supra, 13 Cal.4th at p. 32.) Our high court affirms what the family court 

concluded: “ ‘the paramount need for continuity and stability in custody 

arrangements⎯and the harm that may result from disruption of established 

patterns of care and emotional bonds with the primary caretaker—weigh 

heavily in favor of maintaining ongoing custody arrangements.’ ” (LaMusga, 

at p. 1093, quoting Burgess, at pp. 32–33, italics added.) 

In sum, we find no abuse in the court’s granting of Mother’s move-away 

request. 
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DISPOSITION

The November 10, 2022, order is affirmed. In the interests of justice, 

each party is to bear their own costs on appeal. (Cal. Rules of Court, rule 

8.278, subd. (a)(5) .) 

DO, J.

WE CONCUR:

DATO, Acting P. J.

BUCHANAN, J.