1

Filed 2/29/16 S.K. v. E.L. CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication 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.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Mono)

----

S.K.,

Appellant,

v.

E.L.,

Respondent.

C074407 and C076695

(Super. Ct. No. FL121020)

S.K. (father) appeals from a child custody judgment and also from a postjudgment

move-away order permitting E.L. (mother) to move back to her native Ireland with their 

child A.K. We consolidated father’s appeals.

Father contends (1) the trial court abused its discretion in allowing the child 

to move to Ireland, because the move is not in the best interests of the child, and 
2

(2) the standards for international child relocation weigh against the child’s relocation 

to Ireland.

1 

We conclude the trial court did not abuse its discretion in determining that moving 

the child to Ireland was in the best interests of the child. It applied the proper analysis for 

permitting the child’s international relocation and sought to ensure enforcement of its

custody and visitation orders. The standards for international child relocation did not 

weigh against the child’s relocation to Ireland.

We will affirm the child custody judgment and postjudgment move-away order.

BACKGROUND

Father is a citizen of the United States who grew up in New Hampshire. Mother 

is a joint citizen of the United States and the Republic of Ireland who grew up in Ireland. 

When they met in Massachusetts in 1998, both held graduate degrees and father had a 

six-figure income. Mother moved to Ireland in 1999 to attend an Irish medical school; 

father followed and obtained a job in Ireland with an American software manufacturer. 

Although mother subsequently left medical school without a medical degree, she received 

a significant personal injury settlement that allowed the couple to travel the world.

From 2003 to 2006, mother and father lived in Florida, and from 2006 to 2010

they made their home in Europe, although they traveled extensively. Mother became 

pregnant while they were living in Europe and they moved to Massachusetts so the baby 

could be born there.

In the words of the trial court, “Unfortunately, [the] blessed event led to an 

irreparable breakdown in the parents’ relationship.” Before the birth, the plan had been

 

1 In her respondent’s brief, mother argues, among other things, that the judgment should 

be affirmed because father failed to provide an adequate record on appeal, and father 

forfeited any argument regarding sufficiency of the evidence because he failed to set 

forth the material evidence in his brief. We will address the merits of father’s contentions 

on appeal. 
3

to live part-time in Europe and part-time in the United States. The couple owned a home 

in Montenegro and a condominium in Mammoth Lakes, California. The family moved 

to Mammoth Lakes in the summer of 2011, when the baby was two months old. Over 

the next six months, they traveled together in Ireland, Montenegro, Southern California

and New England.

In February 2012, however, mother took the child to Ireland and father reported

it in California as an abduction. The trial court assumed jurisdiction under the Uniform 

Child Custody Jurisdiction and Enforcement Act, Family Code section 3400 et seq., and 

determined that the United States was the child’s state of habitual residence under the 

International Child Abduction Remedies Act (42 U.S.C. § 11601 et seq). In a subsequent

telephone hearing, the trial court ordered mother to return with the child. Mother

returned, observing that father was making good on his threat to “drag [her] through hell 

and back” if she tried to leave him. The trial court ultimately found the parties remained 

in regular contact throughout mother’s stay in Ireland and there had been no abduction.

Father petitioned for sole legal and physical custody of the child subject to 

“reasonable supervised visitation” by mother but he alternatively proposed a 50/50 

custody split with an order preventing mother from taking the child out of Mono County. 

The trial court noted that father’s custody proposal included a “doomsday” clause 

providing that if either parent took the child on a vacation longer than two weeks, that 

parent would never be allowed to visit the child again. The trial court said father did not 

explain how that would be in the child’s best interests. From the outset, mother wanted 

to return to Ireland to live there with her parents, but she proposed having father either 

move to Ireland or stay behind with three- to five-week visits four times each year and 

video-conferencing several times each week. A child custody specialist appointed by the 

trial court evaluated the parents and found them both capable of effective parenting. He 

recommended a 60/40 custody split in California but conceded that a 90/10 custody split

would work if mother moved to Ireland.
4

The custody proceedings were exhaustive and acrimonious. After six months 

addressing various preliminary issues, the trial court heard evidence from the parties and 

several other witnesses about the best interests of the child. The trial court ordered 

additional briefing on international relocation issues and then allowed additional 

testimony. The trial court ultimately recounted and analyzed the evidence in a 91-page 

child custody judgment.

In the judgment, the trial court determined the only tie the family had to California 

was father’s desire to snowboard in its mountains. Mother had been present in California 

only 118 days before father filed his petition for custody. The trial court assumed

jurisdiction in part because no other forum could be called the parties’ home state. 

Mother was anxious to get back to Ireland to care for a parent suffering from cancer and 

could not go without the child because he was still breast-feeding. The trial court 

awarded joint legal custody to the parents and primary physical custody to mother, but it 

prohibited mother from taking the child to Ireland until she satisfied certain conditions.2 

A follow-up hearing was delayed while the parties litigated in Ireland.

Because mother planned to live in Ireland and father in California, the trial court 

held a hearing on whether to issue a postjudgment move-away order. The hearing 

 

2 Among other things, the trial court ordered mother to do the following: (a) formally 

stipulate that California courts would have exclusive jurisdiction and authority to modify 

the order until a California court terminates it; (b) register the order with appropriate 

authorities in Ireland under the Hague Convention; (c) file the order in the appropriate 

court in Ireland as a “mirror” order; (d) post a surety bond in the amount of $100,000 or 

deposit and maintain the sum of $15,000 in an escrow account or court trust account, 

subject to forfeiture if mother attempted to thwart the court’s jurisdiction; (e) retain legal 

counsel in Ireland to assist father in obtaining a legal guardianship for the child and to 

consent to it; (f) consent, stipulate and agree that a violation of the conditions and order 

would be deemed a substantial change of circumstances and detrimental to the child’s 

best interests; and (g) agree to forfeit her interest in real estate jointly held by the parties 

in Florida and California if the court determined she refused to cure a violation of the 

orders within a reasonable time.
5

focused on international custody and visitation issues, especially on the enforceability of 

the trial court’s orders. The trial court considered the impact of three orders issued by 

Irish courts. The trial court summarized the Irish orders as mirroring its own orders 

ensuring father’s frequent and continuing contact with the child but falling short of 

guaranteeing perpetual exclusive jurisdiction in California. Mother agreed under oath 

that she would be subject to sanctions if she interfered with father’s visitation rights, 

including forfeiture of her interest in American real estate and being subject to extradition 

and international kidnapping charges. The trial court was satisfied that mother had met 

the requirements set out in the child custody judgment.

The trial court’s postjudgment move-away order allowed mother to take the child 

to Ireland and included detailed arrangements for father’s communication and visitation 

with the child. Additional facts are included in the discussion post.

DISCUSSION

I

Father contends the trial court abused its discretion in allowing the child to move 

to Ireland, because the move is not in the best interests of the child.

“What constitutes the best interest of a child presents an inherently factual issue.” 

(Guardianship of A.L. (2014) 228 Cal.App.4th 257, 268.) In making initial custody 

determinations, a trial court has wide discretion to fashion a parenting plan in the best 

interests of the child, including consideration of a planned relocation of the custodial 

parent and child. (In re Marriage of Burgess (1996) 13 Cal.4th 25, 31.) We must uphold 

a trial court’s custody plan if the trial court could have reasonably concluded that its 

order advanced the child’s best interest. (Ibid.)

The trial court found joint physical custody was not in the child’s best interest 

because father engaged in multiple acts of nonviolent abuse toward mother. Father does 

not challenge the factual or legal bases for these findings, so we will not detail them 
6

here.3 The trial court also weighed evidence of father’s claims of misconduct against 

mother and ordered her to attend counseling for a year to address her lack of empathy for 

the child’s need for a relationship with his father and also the “anxiety and mood” issues

attributed to her by father and his family. 

The trial court went on to evaluate mother’s request for a move-away order, 

appropriately beginning with the presumption that the requesting parent would relocate. 

(See Mark T. v. Jamie Z. (2011) 194 Cal.App.4th 1115, 1127 [describing basis of 

presumption].) A custodial parent has the right to move with a child subject only to a 

court’s intervention to prevent prejudice to the rights or welfare of the child. (Fam. Code 

§ 7501.) An objecting noncustodial parent has the burden of proving that a planned 

relocation is detrimental to the child. (In re Marriage of Lasich (2002) 99 Cal.App.4th 

702, 720.) The trial court recounted the move-away factors identified in In re Marriage 

of LaMusga (2004) 32 Cal.4th 1072, including the best interests of the child, the child’s 

need for continuity and stability in relationships, the extent of current shared custody, the 

impact on the child of relocation, the history of conflict between the parents, the parents’ 

predicted ability to facilitate continued contact, the ability of the parents to put the child’s 

needs ahead of their own, the age of the child, the child’s ties to any community or 

location, and the reason for the proposed move. The trial court then applied each factor 

to the evidence in a nine-page detailed analysis. Among other things, the trial court 

found that removing the child from mother would be extremely detrimental to him, that 

the child had no close relationship to other adults or children in Mammoth Lakes but did 

 

3 Abuse includes any behavior that could be enjoined under the Domestic Violence 

Prevention Act (DVPA). (Fam. Code §§ 6203, 6320.) The court evaluated the evidence 

against the statutory standards, citing In re Marriage of Nadkarni (2009) 173 Cal.App.4th 

1483. Although the abuse was “situational” and not directed at the child, the trial court 

found father had not rebutted the statutory presumption against awarding physical 

custody to a recently-abusive parent (Fam. Code § 3044) and ordered father to complete a 

52-week treatment program before the trial court would consider joint physical custody.
7

have relationships with extended family in Ireland, and the distance between California 

and Ireland did not create an insurmountable barrier because the parents were seasoned 

international travelers, had assets, lived frugally and had the potential to earn substantial 

income. The trial court concluded it was in the child’s best interest to accompany his 

mother to Ireland.

Our deferential review is limited to assessing whether the trial court reasonably 

could have concluded that its order advanced the best interests of the child. (In re 

Marriage of LaMusga, supra, 32 Cal.4th at p. 1087.) The trial court’s lengthy and 

carefully-crafted child custody judgment and postjudgment move-away order 

demonstrate a focus on the child’s best interests.

The trial court did not abuse its discretion in concluding that moving the child 

to Ireland was in the best interests of the child.

II

Father also contends the standards for international child relocation weigh against 

the child’s relocation to Ireland.

The parties agree that a seminal case for evaluating a custodial parent’s move to 

another country is In re Marriage of Condon (1998) 62 Cal.App.4th 533 (Condon). In 

Condon, a native Australian married an American and they had two sons. (Id. at p. 536.) 

After the family lived in California for several years, the marriage ended and the mother 

wanted to take the children back to Australia. (Ibid.) The California Supreme Court had 

declared that a custodial parent has a presumptive right “to change the residence of minor 

children, so long as the removal would not be prejudicial to their rights or welfare.” (Id. 

at p. 542-543, citing In re Marriage of Burgess, supra, 13 Cal.4th at p. 32.) The Court 

of Appeal in Condon exhaustively discussed cases from other jurisdictions, identifying in 

them three common concerns peculiar to the relocation of a custodial parent to another 

country. (Id. at p. 543-546.) It held that an international move-away order must consider 

(1) cultural problems (such as moving a female child to a country practicing genital 
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mutilation or a teenager to a country where the language is unfamiliar); (2) distance 

problems (such as expense and jet lag); and (3) jurisdictional problems, particularly the 

enforceability of American custody and visitation orders. (Id. at 546-547.) Factual 

findings made in the context of an international move-away order must be accorded great 

deference by a reviewing court. (Id. at p. 549.)

Here, the trial court found there is no evidence the child will suffer detriment from 

cultural differences if he lives in Ireland. Father nevertheless asserts that the trial court 

overlooked the child’s “right to be raised and educated in the country in which he was 

born.” But father cites no authority for such a right and he points to no evidence that the 

trial court overlooked. Father also noted that the predominant religion in Ireland is 

Catholicism and under Irish law an unmarried father has no right to the care or custody 

of his children. It may or may not be true that unmarried noncustodial parents face more 

challenges in Ireland than in the United States, but the focus of Condon is on the impact 

of a move on the child, not its parents. (Condon, supra, at p. 546.) Moreover, mother 

made a good faith effort to help father pursue formal guardianship in Ireland. And the 

Irish High Court formally granted custody of the child to mother and father jointly and 

issued orders to assure father’s visitation rights would be honored in both countries. 

Father has not identified significant cultural problems that will impact the child. 

The trial court also addressed the distance problem in detail. Father finds fault 

with one of the trial court’s conclusions, that father could pay for travel by drawing 

against assets until his income increases. Father claims there was no evidence he could 

earn more, and there is no legal requirement that a parent must “invade assets” to visit his 

child. But the trial court determined father had the potential to earn far more income than 

as a part-time ski instructor and that he could access up to $100,000 in Montenegro. 

Father does not specifically address those conclusions, which we presume are supported 

by substantial evidence absent a showing to the contrary. 
9

In any event, father argues the “central issue” is the third problem of international 

move-away orders, jurisdiction for enforcement of visitation. “Unless the law of the 

country where the children are to move guarantees enforceability of custody and 

visitation orders issued by American courts, and there may be no such country, the court 

will be required to use its ingenuity to ensure the moving parent adheres to its orders and 

does not seek to invalidate or modify them in a foreign court.” (Condon, 62 Cal.App.4th

at pp. 547-548.) Citing this sentence, father claims the trial court did not sufficiently 

ensure its orders would not be invalidated or modified in Ireland. He argues that if 

mother pursues contrary orders in Irish courts, the penalty imposed by the trial court here 

is “so slight as to render the requirement insulting and meaningless.”

As we explained in footnote 2, the trial court child custody judgment directly 

addressed father’s concern about jurisdiction by ordering mother to take various actions. 

The custody orders were signed July 3, 2013. Judgment was entered July 19, 2013.

The parties reported back to the trial court on May 29, 2014. The trial court noted 

there had been an unanticipated delay because of mother’s attempt to register the order in 

Ireland as a mirror or equivalent order. The trial court considered three opinions on the 

subject issued by the High Court for Family Law in the Republic of Ireland. The trial 

court acknowledged there was a possibility the Irish courts could assume jurisdiction if 

the child later became a habitual resident of Ireland and the intervention of Irish courts 

was required to protect his best interests. Nonetheless, the trial court concluded mother 

had complied with the conditions imposed for the move-away order and/or had 

demonstrated a factual or legal inability to comply. 

Specifically, the trial court found that mother had taken the following actions in 

compliance with its July 2013 orders: (a) sworn under penalty of perjury that she would 

not file an action in any court in Ireland involving custody or visitation of the child; 

(b) made a good faith attempt to register the order with the enforcing authorities of the 

Hague Convention then presented the court with letters from the State Department and 
10

the Republic of Ireland establishing that such registration was impossible; (c) affirmed 

under penalty of perjury that any requests for modification could be made only in 

California; (d) attempted to register the order in an Irish court as a “mirror” or 

“equivalent” order; (e) was unable to obtain a bond but complied with the alternate order 

to deposit $15,000 into the court’s escrow account; (f) consented and stipulated to an 

order that her violation of any condition of the court’s order would be deemed a 

substantial change of circumstances and detrimental to the child’s best interests; 

(g) expressly acknowledged in open court that the parental kidnapping statute, United 

States Code title 18, section 1204, applies to her and that she waived jurisdiction on any 

arrest warrant issued pursuant to that law;

4 (h) made a good faith attempt to establish a 

travel account despite father’s resistance;

5 (i) affirmed under oath that she would 

cooperate with any action filed in Ireland or the United States related to international 

child abduction; (j) affirmed under oath that she would forfeit any interest in jointly held 

assets in Florida or California if she failed to cure a violation of the court’s order; 

(k) agreed to keep father apprised at all times of the child’s location to facilitate frequent 

electronic visitation and to assure father she was not trying to conceal child; (l) made a 

good faith effort to cooperate with father in establishing guardianship of child under Irish 

law and agreed not to withhold consent if father later chose to seek guardianship rights; 

(m) complied with the trial court’s order to get counseling.

Father renewed the argument he made at the time of judgment that Condon 

required denial of a custodial parent’s requested move-away plan unless the court could 

 

4 She later executed a formal declaration expressly waiving extradition for parental 

kidnapping or failure to comply with return orders. 

5 The trial court ordered mother to set up an account and tell father about it; both parties 

were directed to deposit net rental income from the parties’ property in California into the 

account and use it to pay for visitation-related travel expenses. 
11

guarantee enforceability of its custody and visitation orders. The trial court reviewed

Condon once again and noted that the court in Condon had imposed concessions of 

jurisdiction and sanctions because, in that case as in this one, guarantees of perpetual 

jurisdiction were impossible. The trial court rejected father’s contention that the

concessions and prospective sanctions imposed by the judgment and order were 

inadequate. 

Father raises identical arguments to this court. The trial court concluded the Irish 

court “went as far as the law in Ireland allowed in foreseeing future deference to this 

court’s orders” and acknowledged that it fell short of absolutely guaranteeing exclusive 

jurisdiction in California until the child reaches the age of majority. Nonetheless, the 

Irish court imposed its own orders mirroring the California orders in many respects and 

did what it could to assure father’s right to frequent and continuing contact with the child

in both countries. 

The trial court characterized the position of the Irish court as acknowledging 

father’s paternity and supporting father’s right to spend time with his son, but being

unwilling to promise that it would never under any circumstances issue orders to protect 

the child’s best interest if such orders appeared to be necessary. The Irish court accorded 

“grave consideration” to the California visitation orders and imposed substantially 

equivalent orders in Ireland. Its actions went “far beyond” what the trial court had 

expected. 

Acknowledging the difficult circumstances and father’s concern about 

enforceability, the trial court carefully considered the facts and the law and crafted a 

detailed order to address the Condon problems. We do not agree with father’s assertion 

that the move had to be denied absent absolute guarantees from Ireland. The move-away 

order adequately met Condon’s standards for preserving parent-child relationships as 

much as possible under difficult circumstances.
12

We conclude the standards for international child relocation did not weigh against 

the child’s relocation to Ireland.

DISPOSITION

The trial court’s judgment and postjudgment order are affirmed. 

 /S/

Mauro, J.

We concur:

 /S/

Robie, Acting P. J.

 /S/

Hoch, J.