Recent Developments in Family Law

COURT OF APPEAL UPHOLDS TRIAL COURT’S DENIAL OF MOTHER’S REQUEST TO MOVE AWAY WITH MINOR CHILD AND CHANGE OF PRIMARY CUSTODY OF CHILD TO FATHER. IN RE MARRIAGE OF WINTERNITZ (2015) 235 CAL.APP.4th 644.

FACTS

After an approximately 20 year marriage and soon after the birth of their third child, the parties dissolved their marriage in 2004 in the Yolo County Superior Court. They stipulated to the appointment of a custody evaluator who addressed mother’s request to relocate with the children to San Diego. The evaluator found that mother manipulated the children and reported that the therapists who met with both parents concluded mother alienated the children from father. The evaluator initially recommended that the children remain with father but amended his report, changing his recommendation to permit mother’s relocation with the children. Noting mother’s act of alienating the children and the children’s strong opposition to living with father, the evaluator believed by staying with mother, the children would make a less conflicted adjustment and the possibility of reconciling with father would be left open. Despite the trial court’s finding that mother engaged in tactics resulting in the alienation of the children from father, the court allowed mother to move with the children to San Diego. Following mother’s move with the children, father, who is an orthopedic surgeon, relocated to San Diego and established a practice there.

Several years later mother filed a move away request in San Diego requesting to move with the one remaining minor child to Northern California where she had purchased a home. Her fiancé had been hired for employment in Northern California. Mother contended she was unable to find a job in San Diego and was unable to afford a home there. Father moved to modify custody and visitation, seeking physical custody of the child. After Family Court Services recommended that mother remain the child’s primary caregiver, father’s request for a custody evaluation was granted. The evaluator recommended that the move away request be denied and that the child be placed with father. Although the evaluator admitted making mistakes in the case, the court denied mother’s request to strike the evaluator’s report and denied mother’s move away request, changing primary custody of the child to father. The court found father met his burden of showing that the planned moved would cause substantial detriment to the child and found changing custody to father was in the child’s best interest. Mother appealed, but the Court of Appeal affirmed.

APPELLATE COURT DECISION

The Court of Appeal explained that a parent entitled to the custody of a child 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. When a custodial parent proposes to relocate a child, the noncustodial parent has the burden of showing that the planned move would cause detriment to the child in order for the court to re-evaluate an existing custody order. If the noncustodial parent shows that the planned move would cause detriment to the child, the court then determines whether a change of custody is in the best interests of the child. The factors the court should ordinarily consider when deciding whether to modify a custody order in light of a custodial parent’s proposed change of residence are: (1) the child’s interest in stability and continuity in the custodial arrangement; (2) the distance of the move; (3) the age of the children; (4) the children’s relationship with both parents; (5) the relationship between the parents including their ability to communicate and cooperate and their willingness to put the interests of the children above their own interests; (6) the wishes of the children if they are mature enough for the inquiry to be appropriate; (7) the reasons for the proposed move; (8) and the extent to which the parents are currently sharing custody. (In re Marriage of LaMusga (2004) 32 Cal.4th 1072). The court may appoint a child custody evaluator to report on the best interests of the children to assist in making a change in custody determination.

At trial the custody evaluator admitted to procedural errors during the course of his evaluation but testified that he was not biased in favor of either party. Although it noted that many of mother’s objections to the evaluator’s report were valid, the trial court found the objections went to the weight of the content of the report and were not sufficient to justify striking the report. The court found the evaluator was not biased in favor of either party and considered the report and the evaluator’s testimony in entering its decision to deny mother’s request to move away and changing custody to father. The Court of Appeal explained that once it is established that a witness has adequate credentials to qualify as an expert, questions as to the degree of his or her expertise go to the weight not admissibility. Mother’s objections to the evaluator’s report went to the weight of the report, not its admissibility. It was for the trial court to assess the credibility of all of the witnesses, including the evaluator. The trial court did not err when it refused to strike the evaluator’s report.

The Court of Appeal also denied mother’s claim that the trial court did not apply the correct legal standard in assessing her relocation request. The trial court found that father met his initial burden of showing the planned move would cause substantial detriment to the child. The trial court then turned to the issue of whether changing the child’s custody would be in her best interest. In making the best interest determination, the trial court recited and addressed the eight LaMusga factors and other factors it considered relevant. The trial court acknowledged mother had been the primary caretaker and that denying mother’s request to move the child to Northern California would result in a change of custody and a disruption in the current custody arrangement. Despite the concerns, the trial court found the move away request was clearly in the child’s best interest. The trial court found a controlling factor to be the ability and willingness of one parent to provide the other parent with the opportunity to spend as much time with the child as possible and to be flexible with scheduling requests. The trial court’s emphasis on the respective attitude of each parent regarding visitation with the other parent did not demonstrate an abuse of discretion.

The Court of Appeal denied mother’s assertion that the trial court failed to give meaningful consideration to the child’s custodial preference to remain in her care as required under the Family Code. It was undisputed that the minor child had expressed the desire to move with her mother to Northern California. The court opined that to have the child testify would only cause emotional distress which was not necessary. In this regard the court considered the child’s wishes. Additionally the evaluator’s report, which was considered by the court, addressed risks to the child if she were placed with father. The evaluator nonetheless concluded that the greatest risk to the child was losing the relationship with father.

COMMENTS

The Court of Appeal’s concluding comments were that, “The parties have litigated to the point of financial ruin, to their own detriment and, more importantly, the detriment of their daughter.” While the facts of some cases warrant a request for a move away of a minor child or children, these are complicated cases. Litigants should seek legal advice and carefully consider the ramifications of a request for a move away before one is made. Litigants should understand the legal analysis required in such a request and the possible outcomes if such a request is denied.