IN THE SUPREME COURT OF CALIFORNIA
In re Marriage of NICOLE F. BROWN
and ANTHONY YANA.
)
NICOLE F. BROWN,
Respondent,
S131030
v.
Ct.App. 2/6 B170252
ANTHONY YANA,
San Luis Obispo County
Appellant.
Super. Ct. No. DR 21998
In this case, a parent who had been awarded sole legal and sole physical
custody of a child after a contested custody dispute sought to relocate with her
child to Nevada. The noncustodial parent opposed the relocation and sought,
among other things, to have the matter addressed in an evidentiary hearing, i.e., a
contested hearing with live testimony. The trial court denied the noncustodial
parent’s applications to restrain the relocation and to modify custody without
holding an evidentiary hearing. The Court of Appeal reversed, holding that “in a
‘move-away’ case, a parent without legal or physical custody is entitled to an
evidentiary hearing.”
We conclude the trial court did not err or abuse its discretion in denying
relief without holding an evidentiary hearing. We therefore reverse the judgment
of the Court of Appeal.
1
FACTS
The relevant facts are undisputed.
In 1994, Nicole F. Brown and Anthony Yana obtained a dissolution of their
marriage. In 1999, the court awarded Brown sole legal custody and sole physical
custody of their son, Cameron, following a psychological evaluation of the parties
and a contested evidentiary hearing on custody. After these events, Brown and
Yana each continued to reside in San Luis Obispo County. Brown remarried and
has two children with her second husband.
On June 12, 2003, Yana filed an order to show cause to modify legal
custody of Cameron from sole to joint, to expand his visitation, and to appoint
counsel for Cameron, who was then 12 years old.1 Yana asserted in a supporting
declaration that his relationship with Brown had improved significantly, that
Cameron expressed an interest in spending more time with him, and that Cameron
was doing well in his academic and social relationships. Shortly thereafter, Brown
informed Yana she was moving with Cameron to Las Vegas, Nevada, at the end of
the summer. On June 27, 2003, Yana filed an order to show cause to restrain any
change of residence for Cameron and to request a psychological evaluation and a
contested evidentiary hearing on the move-away issue.
Also on June 27, 2003, Brown filed an order to show cause to adjust Yana’s
visitation schedule upon her move to Nevada. She stated in a supporting
declaration that her husband had taken a job in Las Vegas and that the family
would be residing in Green Valley, Nevada. She also stated Cameron was
extremely close to his two half siblings, and that they miss one another when
1
In family law proceedings, a party may seek relief from the trial court by an
order to show cause or other application. (See Cal. Rules of Court, rule 5.118.)
2
apart. Brown asserted there was no basis for Yana’s requested relief because, as
Yana admitted, Cameron was doing well in her sole custody. Moreover, she
contended, she had a legitimate reason for the residential move, and the move
would not constitute a change of circumstances. Brown objected to a
psychological evaluation on the ground that her family had already been through
two of them, and claimed Yana told her he wanted more time with Cameron to
stop her from moving. Finally, with the planned relocation in mind, Brown
offered an increase in Yana’s summer visitations with Cameron in the event Yana
did not like her proposal to modify his weekend visitations.
The trial court temporarily restrained Brown from moving away with
Cameron, appointed an attorney for Cameron, and set the matters for a hearing.
At the hearing, the trial court expressed its reluctance to grant Yana’s
requests for relief.2 Although Yana acknowledged that Brown was not seeking to
relocate in bad faith, he argued that Cameron’s removal could be restrained “if it
would prejudice the rights or the welfare of the child.” Yana, however, disclaimed
any obligation to plead or otherwise show prejudice before the setting of an
evidentiary hearing—i.e., a contested hearing where he would offer oral testimony
on the matter. When the court queried whether Yana “shouldn’t . . . tell us a little
something before we launch into all of this,” Yana reiterated the need for an
independent evaluation to explore Cameron’s feelings about moving to Las Vegas.
He also repeated his request for an evidentiary hearing, stating he was prepared to
offer “a lot of evidence about Las Vegas, Nevada, such as the high student-to-
2
The record reflects the trial court understood Yana’s request regarding
Brown’s proposed relocation with Cameron as an application for a change of
custody based on the relocation. We have the same understanding, based on
Yana’s arguments in the trial court and on appeal.
3
teacher ratio; the fact that the state of Nevada has one of the highest dropout rates
in junior high and high school of any state in the nation; the amount of crime over
there; the volume of the people moving in and out of the community of Las Vegas,
Nevada, and what the transient effect has upon people in that community.”
Cameron’s court-appointed attorney reported at the hearing what Cameron
had told him during interviews at each parent’s home. The attorney offered his
opinion, based on everything Cameron had said and done, that Cameron was “a
conflicted young man,” who said “different things at different times, based upon
who he happened to be with at the time.”
At the hearing’s conclusion, the trial court denied Yana’s requests for relief.
In doing so, the court commented that a full contested hearing following
psychological examinations had occurred in 1999, resulting in an award of sole
legal and physical custody of Cameron to Brown.3 Given that judicial custody
order, the court determined that Yana was required to assert some detriment to
warrant an evidentiary hearing. The court expressed its awareness “that children
are disoriented when they move [and] it’s not comfortable for them,” but
concluded that “that level of discomfort for the child is not what detriment or
substantial changed circumstances is about sufficient to change custody from mom
here to dad.” In light of the move, however, the court found Yana entitled to a
hearing on visitation and later established a modified visitation schedule.
3
The 1999 order included findings that: (1) Yana had not been honest or
truthful with the court, his attorney, and others; (2) following a license suspension
for driving under the influence, Yana drove without a license with Cameron in the
car and put Cameron at risk of being taken into protective custody; and (3) Yana
engaged in at least two other instances of unwise parenting.
4
Yana appealed. The Court of Appeal reversed in a split decision, holding
that, in a move-away case, a parent with no legal or physical custody rights is
entitled to an evidentiary hearing.
We granted Brown’s petition for review.
DISCUSSION
The question presented is this: In a case where sole legal and sole physical
custody of a child has been awarded to one parent after a contested custody
dispute, and the custodial parent’s subsequent decision to relocate with the child is
opposed by the noncustodial parent, is the noncustodial parent entitled to an
evidentiary hearing on the matter?
Brown contends the Court of Appeal’s affirmative answer to this question
is wrong. Starting from the premise that a parent who has been awarded sole legal
and sole physical custody has the exclusive statutory right and responsibility to
make all decisions regarding the minor child’s residence and schooling, Brown
first argues the noncustodial parent may not obtain a change in custody, or any
evidentiary hearing on the matter, based on the custodial parent’s decision to
relocate. Even assuming otherwise, she asserts, the trial court retains discretion to
deny a custody modification request without a full evidentiary hearing where, as
here, no prima facie showing of detriment to the child has been made.
We begin by addressing Brown’s first contention, as it potentially is
dispositive.
A. May a parent without legal and physical custody seek and obtain a
custody change based on the custodial parent’s decision to relocate
with their child?
California’s statutory scheme governing child custody and visitation
determinations is set forth in the Family Code (all further statutory references are
to this code unless otherwise indicated). Under this scheme, “the overarching
5
concern is the best interest of the child.” (Montenegro v. Diaz (2001) 26 Cal.4th
249, 255 (Montenegro).)
For purposes of an initial custody determination, section 3040, subdivision
(b), affords the trial court and the family “ ‘the widest discretion to choose a
parenting plan that is in the best interest of the child.’ ” (In re Marriage of
Burgess (1996) 13 Cal.4th 25, 31 (Burgess).) When the parents are unable to
agree on a custody arrangement, the court must determine the best interest of the
child by setting the matter for an adversarial hearing and considering all relevant
factors, including the child’s health, safety, and welfare, any history of abuse by
one parent against any child or the other parent, and the nature and amount of the
child’s contact with the parents. (§§ 3011, 3185, subd. (a); see Montenegro,
supra, 26 Cal.4th at pp. 255-256.)
Once the trial court has entered a final or permanent custody order
reflecting that a particular custodial arrangement is in the best interest of the child,
“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” that
custody arrangement. (Burgess, supra, 13 Cal.4th at pp. 32-33.) In recognition of
this policy concern, we have articulated a variation on the best interest standard,
known as the changed circumstance rule, that the trial court must apply when a
parent seeks modification of a final judicial custody determination. (Montenegro,
supra, 26 Cal.4th at p. 256, relying on Burchard v. Garay (1986) 42 Cal.3d 531,
535.) Under the changed circumstance rule, custody modification is appropriate
only if the parent seeking modification demonstrates “a significant change of
circumstances” indicating that a different custody arrangement would be in the
child’s best interest. (Ibid.) Not only does this serve to protect the weighty
6
interest in stable custody arrangements, but it also fosters judicial economy.
(Ibid.)4
The Family Code contemplates that, in making a custody determination,
consideration of the best interest of the child may lead the trial court to award
custody either to both parents (joint or shared custody) or to only one parent (sole
custody). If a parent is awarded “sole legal custody,” that means the parent “shall
have the right and the responsibility to make the decisions relating to the health,
education, and welfare of a child.” (§ 3006.) If a parent is awarded “sole physical
custody,” that means the child “shall reside with and be under the supervision” of
the custodial parent, “subject to the power of the court to order visitation” for the
noncustodial parent. (§ 3007.)
Brown argues, in effect, that sections 3006 and 3007 permit a parent with
sole legal and sole physical custody to unilaterally supervise and make all
decisions regarding a minor child’s residence and schooling, thereby conferring a
right to relocate with the child without interference from the noncustodial parent.
In her view, the Court of Appeal’s conclusion that a parent with no legal or
physical custody is entitled to an evidentiary hearing to relitigate custody over a
proposed move away cannot be squared with these statutory provisions. We are
not persuaded.
Brown concedes, as she must, that another provision of the Family Code,
section 7501, expressly addresses the right of a custodial parent to relocate with a
child. By its terms, section 7501 unambiguously provides the right is not absolute
4
A stipulated custody order qualifies as “a final judicial custody
determination for purposes of the changed circumstance rule only if there is a
clear, affirmative indication the parties intended such a result.” (Montenegro,
supra, 26 Cal.4th at p. 258.)
7
and may be curtailed if the move would result in detriment to the child: “A parent
entitled to the custody of a child has a 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.” (§ 7501, subd. (a), italics added.) Notably, the
statute contains no qualifying language purporting to limit its application to
parents with only certain custodial rights. Thus, while sections 3006 and 3007
recognize the general right of a parent with sole custody to supervise and make
decisions regarding a child’s residence and education, section 7501, fairly read,
contemplates that even a parent with sole legal and sole physical custody may be
restrained from changing a child’s residence, if a court determines the change
would be detrimental to the child’s rights or welfare.
Not only does section 7501 undermine any notion of a custodial parent’s
absolute right to relocate with a child, but so does the lack of any California
decision supporting such a proposition. The seminal decision of Burgess, supra,
13 Cal.4th 25, referred to the right of a custodial parent to change the residence of
a child as a presumptive right that might not prevail if the move would result in
detriment to the child.5 (Burgess, at p. 35.) Decisions subsequent to Burgess
uniformly acknowledge that, even where a permanent custody order is in place,
the custodial parent’s right to relocate with a child remains subject to the changed
circumstance rule. (E.g., In re Marriage of LaMusga (2004) 32 Cal.4th 1072,
1088-1089 (LaMusga); Osgood v. Landon (2005) 127 Cal.App.4th 425, 432-434;
In re Marriage of Campos (2003) 108 Cal.App.4th 839, 843 (Campos); In re
5
In 2003, the Legislature codified Burgess by amending section 7501 to
read: “It is the intent of the Legislature to affirm the decision in In re Marriage of
Burgess (1996) 13 Cal.4th 25, and to declare that ruling to be the public policy and
law of this state.” (§ 7501, subd. (b), as amended by Stats. 2003, ch. 674, § 1.)
8
Marriage of Edlund & Hales (1998) 66 Cal.App.4th 1454, 1468-1469; In re
Marriage of Whealon (1997) 53 Cal.App.4th 132, 140-141.)
Brown attempts to distinguish Burgess and its progeny on the ground they
did not involve a parent with sole legal and sole physical custody. We are not
convinced. Like the situation here, some of the cases were decided in the context
of a relocation sought by a parent with sole physical custody. (E.g., Burgess,
supra, 13 Cal.4th at p. 29 [stipulated order provided for temporary joint legal
custody and sole physical custody to mother]; Osgood v. Landon, supra, 127
Cal.App.4th at pp. 431-432 [stipulated order provided for joint legal custody, but
default judgment awarded sole physical custody to mother]; Campos, supra, 108
Cal.App.4th at p. 841 [judicial custody order provided for joint legal custody and
sole physical custody to mother].) Those decisions hold or otherwise
acknowledge that an order for sole physical custody may be modified, despite the
general importance of maintaining ongoing physical custody arrangements, if
relocation with the custodial parent will cause the child to suffer detriment, thus
rendering it essential or expedient for the child’s welfare that there be a custody
change (Burgess, supra, 13 Cal.4th at p. 38; see also LaMusga, supra, 32 Cal.4th
at pp. 1088-1089). None of the decisions, moreover, attributes any significance to
the presence of a joint legal custody arrangement or the absence of one for sole
legal custody.
Brown additionally contends that a parent with no custodial rights has no
standing to challenge the custodial parent’s decision to relocate. That contention
lacks merit. As indicated, section 7501, subdivision (a), provides that a custodial
parent’s right to change the residence of the child is “subject to the power of the
court to restrain a removal that would prejudice the rights or welfare of the child.”
It is reasonable to infer from this language, as Burgess and its progeny have, that
the noncustodial parent may request a court to exercise this power. Conversely,
9
section 7501’s language is not reasonably susceptible of a construction that bars a
noncustodial parent from doing so.
Moreover, we recently recognized in a similar context that an award of sole
legal and sole physical custody of a child to one parent does not serve to
“terminate” the other’s parental rights or due process interest in parenting. (In re
Marriage of Harris (2004) 34 Cal.4th 210, 227 (Harris).) In Harris, we addressed
section 3104’s provisions for court-ordered grandparent visitation over the
objection of the parent with sole custody. As part of our analysis, we rejected the
attempt of a mother who had been awarded sole legal and sole physical custody to
liken the noncustodial father to a deceased parent and to equate herself to a sole
surviving parent whose right to the custody and control over her child would be
infringed by court-ordered grandparent visitation under section 3104. (Harris, at
p. 227.) Consistent with Harris, we find the award of sole custody to Brown did
not terminate any right of Yana to seek relief under section 7501. Indeed, Harris
stands as an example that a parent cannot rely on an award of sole custody to
shield herself from a court order to which she objects, where such order is
supported by the noncustodial parent and is in the best interest of the child.6
In sum, we conclude that, where a final custody order had awarded sole
legal and sole physical custody to the parent seeking to relocate with a child, the
noncustodial parent opposing the relocation may seek and obtain a custody
6
The statute at issue in Harris, section 3104, permits a grandparent to
petition for visitation, but provides a rebuttable presumption that grandparent
visitation is not in the child’s best interest where a parent with sole custody of a
child objects to such visitation. (§ 3104, subd. (f).) Although we did not uphold
the trial court’s order allowing grandparent visitation over the mother’s objection,
we remanded the matter to permit reconsideration of that order in light of the
statutory presumption, which the trial court had failed to utilize. (Harris, supra,
34 Cal.4th at p. 214.)
10
modification based on a proper showing pursuant to the changed circumstance
rule.
B. What right, if any, does a noncustodial parent have to an
evidentiary hearing to relitigate custody over a proposed move
away?
Having concluded that a parent without legal and physical custody may
seek a change in custody based on the custodial parent’s decision to relocate with
their child, we now determine whether and to what extent a trial court must hold
an evidentiary hearing on the matter. Although we generally described the
standard for custody modification in a move-away case in part A, ante, we
elaborate on that standard as part of our analysis here.
A custodial parent seeking to relocate after dissolution of marriage need not
establish the move is “necessary” in order to be awarded physical custody of a
minor child, or to retain physical custody under an existing custody order.
(Burgess, supra, 13 Cal.4th at p. 37.) Moreover, while a decision to change a
child’s residence ordinarily does not reflect upon the parent’s suitability to retain
custody, “[a]n obvious exception is a custodial parent’s decision to relocate simply
to frustrate the noncustodial parent’s contact with the minor child[].” (Id. at p. 36,
fn. 6.) In this regard, “[e]ven if the custodial parent is otherwise ‘fit,’ such bad
faith conduct may be relevant to a determination of what permanent custody
arrangement is in the minor child[]’s best interest.” (Ibid.)7
7
Although a court need not evaluate the wisdom of the custodial parent’s
decisionmaking, “[e]ven if the custodial parent has legitimate reasons for the
proposed change in the child’s residence and is not acting simply to frustrate the
noncustodial parent’s contact with the child, the court still may consider whether
one reason for the move is to lessen the child’s contact with the noncustodial
parent and whether that indicates, when considered in light of all the relevant
factors, that a change in custody would be in the child’s best interests.”
(LaMusga, supra, 32 Cal.4th at p. 1100, fn. omitted.)
11
When a final judicial custody determination is in place (see also ante, fn.
4), and a noncustodial parent seeks to modify custody in response to a proposed
relocation, the trial court must apply the changed circumstance rule. Although the
noncustodial parent is not required to show a custody modification is “essential” to
prevent detriment to the child from the planned move, he or she bears the initial
burden of showing that the proposed relocation of the child’s residence will cause
detriment to the child, requiring a reevaluation of the existing custody order.
(LaMusga, supra, 32 Cal.4th at p. 1078; see also id. at p. 1096; Ragghanti v. Reyes
(2004) 123 Cal.App.4th 989, 996 [“[t]he changed circumstances test requires a
threshold showing of detriment before a court may modify an existing final
custody order that was previously based upon the child’s best interest”].)
Imposing this burden on the noncustodial parent is consistent with the recognition
that “ ‘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, supra, 13 Cal.4th at pp. 32-33.)
The changed circumstance rule requires a substantial showing to modify a
final judicial custody determination. “In a ‘move-away’ case, a change of custody
is not justified simply because the custodial parent has chosen, for any sound good
faith reason, to reside in a different location, but only if, as a result of relocation
with that parent, the child will suffer detriment rendering it ‘ “essential or
expedient for the welfare of the child that there be a change.” ’ ” (Burgess, supra,
13 Cal.4th at p. 38.)
In applying this rule, we affirmed a custody modification order where
evidence established that the custodial parent tended to alienate the children from
the noncustodial parent, the children’s relocation some 2,000 miles away would
12
not promote frequent and continuing contact with the noncustodial parent, and the
primary loss to the children pertained to the growing and improving relationship
with the noncustodial parent. (LaMusga, supra, 32 Cal.4th at pp. 1083-1085.) In
another case, a custody modification order was affirmed where evidence showed
the child would not have adequate medical care in the new location and would not
transition well to a new school or new surroundings. (In re Marriage of Melville
(2004) 122 Cal.App.4th 601, 612 [involving a child with Down’s Syndrome and a
heart condition].) Ultimately, “[t]he extent to which a proposed move will
detrimentally impact a child varies greatly depending upon the circumstances.”
(LaMusga, at p. 1097.)
If the noncustodial parent makes the required initial showing of detriment,
the court is then obligated to “perform the delicate and difficult task of
determining whether a change in custody is in the best interests” of the child.
(LaMusga, supra, 32 Cal.4th at p. 1078.) Among the factors the court ordinarily
should consider when deciding whether to modify custody in light of a proposed
move are the following: the child’s interest in stability and continuity in the
custodial arrangement; the distance of the move; the child’s age; the child’s
relationship with both parents; the relationship between the parents, including, but
not limited to, their ability to communicate and cooperate effectively and their
willingness to put the child’s interests above their individual interests; the child’s
wishes if the child is mature enough for such an inquiry to be appropriate; the
reasons for the proposed move; and the extent to which the parents currently share
custody. (LaMusga, at p. 1101.)
The trial court enjoys “wide discretion” to order a custody change based
upon a showing of detriment, including detriment caused to the relationship
between the noncustodial parent and the child, if such a change is in the best
interests of the child in light of all the relevant factors. (LaMusga, supra, 32
13
Cal.4th at p. 1095.) That is, a reviewing court generally will leave it to the trial
court to assess the detrimental impact of a proposed move in light of other relevant
factors in determining what is in the best interest of the child. (Id. at p. 1097)
Section 7501, we observe, does not speak to the matter of evidentiary
hearings in the event a noncustodial parent seeks to restrain a removal allegedly
prejudicing the rights or welfare of the child. However, two other provisions—
section 3170 and section 3185—generally apply when a parent seeks to modify
custody on any basis, including, accordingly, a proposed relocation.
Section 3170 provides in relevant part: “(a) If it appears on the face of a
petition, application, or other pleading to obtain or modify a temporary or
permanent custody or visitation order that custody, visitation, or both are
contested, the court shall set the contested issues for mediation.” In turn, section
3185 provides: “(a) If issues that may be resolved by agreement pursuant to
Section 3178[8] are not resolved by an agreement of all the parties who participate
in mediation, the mediator shall inform the court in writing and the court shall set
the matter for hearing on the unresolved matters.” (Italics added.)
In re Marriage of Dunn (2002) 103 Cal.App.4th 345 (Dunn), considered
the type of hearing required when a parent seeks modification of a postdissolution
child custody order. There, the trial court had modified a preexisting custody
order so as to effectively prohibit the father’s new wife from participating in
certain school, church, and scouting activities during the times when the mother
had custody of the children. The matter was handled in two unreported informal
8
Section 3178 provides in pertinent part that where mediation is required to
settle a contested issue of custody or visitation, an agreement between the parties
resulting from mediation “shall be limited” to “the resolution of issues relating to
parenting plans, custody, visitation, or a combination of these issues.”
14
chambers proceedings with only counsel present. In reversing the modification
order, Dunn relied on sections 3170 and 3185 for the proposition that, where
mediation fails to resolve a custody dispute, “[t]he context of postjudgment
modification orders appears to contemplate an oral hearing,” where the party
opposing a requested modification is “apprised of the date, time and place of the
hearing, sufficiently in advance to appear or otherwise protect his or her interests.”
(Dunn, at p. 348.) After noting the need for a party to introduce admissible
evidence of changed circumstances at a formal hearing, Dunn indicated that an
“evidentiary hearing” of contested factual issues should be conducted “if
necessary.” (Ibid.) In reaching its conclusions, Dunn emphasized that “ ‘[i]n spite
of the need for efficiency, courts should not lose sight of the need that parties be
given their “day in court.” ’ ” (Ibid.) Dunn additionally observed that
“[u]nreported informal chambers proceedings hamper the opportunity for
meaningful appellate review.” (Ibid.)
Consistent with Dunn, we hold an evidentiary hearing in a move-away
situation should be held only if necessary. Where, as here, one parent has been
awarded sole legal and sole physical custody of a child, and the noncustodial
parent opposes the custodial parent’s decision to relocate with the child, a trial
court may deny the noncustodial parent’s requests to modify custody based on the
relocation without holding an evidentiary hearing to take oral evidence if the
noncustodial parent’s allegation or showing of detriment to the child is
insubstantial in light of all the circumstances presented in the case, or is otherwise
legally insufficient to warrant relief.
Needless to say, an evidentiary hearing serves no legitimate purpose or
function where the noncustodial parent is unable to make a prima facie showing of
detriment in the first instance, or has failed to identify a material but contested
factual issue that should be resolved through the taking of oral testimony. As in
15
other family law contexts, application of this procedure in move-away cases
fosters the goal of judicial economy and reduces litigation costs and unnecessary
distress for the parents and children involved. It also serves to protect the policy
considerations underlying the changed circumstance rule, particularly in the
context of a case in which the trial court has already determined that the moving
parent “shall have the right and the responsibility to make the decisions relating to
the health, education, and welfare of a child.” (§ 3006.)
As sections 3170 and 3185 contemplate, the trial court here referred the
underlying dispute to mediation9 and set the matter for a formal court hearing. At
the hearing, the court made every effort to provide Yana a reasonable opportunity
to make his case for modifying custody based on Brown’s proposed relocation
with Cameron. It reviewed the parties’ applications and supporting declarations
and papers, and diligently inquired into whether or not Yana would be able to
prove detriment if he were granted the full evidentiary hearing he desired. In this
connection, the court permitted Yana to make an offer of proof, despite his failure
to allege facts establishing detriment in the documents supporting his orders to
show cause. The court declined to order an evidentiary hearing only after
determining that Yana’s offer of proof did not tend to demonstrate the planned
move would be detrimental to Cameron.
Review of the record compels us to uphold the trial court’s actions. The
record reflects that Yana’s orders to show cause and his supporting papers did not
identify any detriment to Cameron that might result from the proposed move. At
the court hearing, Yana conceded that Brown was not seeking to relocate in bad
faith. Consistent with this concession, and with Brown’s proposal for a slight
9
Yana failed to attend the mediation.
16
modification in visitation, Yana made no claim that Brown sought to use the
relocation to limit his contact with Cameron.
The record additionally shows that when the court pressed Yana for a
description of the detriment he claimed, Yana merely offered to produce “a lot of
evidence about Las Vegas, Nevada, such as the high student-to-teacher ratio; the
fact that the state of Nevada has one of the highest dropout rates in junior high and
high school of any state in the nation; the amount of crime over there; the volume
of people moving in and out of the community of Las Vegas, Nevada, and what
the transient effect has upon people in that community.” Like the trial court, we
conclude this was insufficient to justify an evidentiary hearing given the record as
a whole. Even if Yana were to produce such evidence, and even assuming it were
uncontroverted, such evidence would be relevant merely to establish only certain
generalities concerning the standard of living and schooling in Las Vegas and
more broadly in Nevada. Standing alone, such evidence did not tend to show that
a move to Las Vegas would, with specific reference to Cameron or Brown’s plans
for Cameron, “prejudice [his] rights or welfare.” (§ 7501, subd. (a).) Likewise,
such evidence did not suggest that Cameron could not or would not thrive in the
new location with his mother, stepfather, and two half siblings.10
At Yana’s request, the trial court also conducted an inquiry into Cameron’s
preferences regarding custodial placement. The court appointed counsel for
Cameron and, at the hearing on the proposed move away, heard counsel’s report
of his interviews with Cameron at each parent’s home. Counsel noted that, during
10
Strictly speaking, Brown and her current husband purchased a home in
Green Valley, which is approximately 20 minutes away from the husband’s job in
Las Vegas. Our reasoning, however, would remain the same if the move was in
fact to Las Vegas proper.
17
these interviews, Cameron spoke favorably of his relationship with his two half
siblings and his stepfather’s involvement in his life. He also mentioned his ties
and friends in San Luis Obispo County and was naturally reluctant to break those
ties. Later, however, Cameron telephoned counsel from his father’s house,
claimed he did not feel comfortable saying what his real thoughts were while at his
mother’s house, and said he would really like to stay with his father. Cameron
also mentioned the existence of “problems” in his mother’s home, but that seemed
to counsel “to be a paraphrase . . . of what he might have heard from someone
else.” Counsel offered his opinion, based on everything Cameron said and did,
that Cameron was “a conflicted young man” who said “different things at different
times, based upon who he happened to be with at the time.” After ascertaining
that counsel had articulated “everything that Cameron wants me to know,” the
court expressed its awareness that “children are disoriented when they move [and]
it’s not comfortable for them.” The court concluded, however, that “that level of
discomfort for the child is not what detriment or substantial changed
circumstances is about sufficient to change custody from mom here to dad.”
We are not prepared to hold, as a matter of law, that a showing of a child’s
discomfort at the prospect of moving can never suffice to establish or support a
finding of detriment for purposes of the changed circumstance rule. Nonetheless,
the record here amply supports the trial court’s decision to forgo an evidentiary
hearing. There was no issue of any bad faith on Brown’s part, and no concern
expressed that she might use the relocation to limit Yana’s contact with Cameron.
The detriment Yana described regarding the standard of living and schooling in
Las Vegas and Nevada, without more, would merely show detriment in the
abstract. The only other consideration before the court was counsel’s report of
18
Cameron’s conflicted feelings over moving,11 but there was nothing to indicate the
move would subject Cameron to anything atypical or unusual for a move-away
situation. Notably, Yana made no effort to offer facts or evidence showing that
the relocation would detrimentally affect Cameron’s rights or his well-being, or
that it would alienate the father-son relationship. Because these circumstances
disclosed no need for further assessment, the court acted well within its discretion
to deny Yana’s request for an evidentiary hearing.
In the proceedings below, the Court of Appeal concluded that Yana, as a
parent without legal or physical custody who objected to a move away, was
entitled, essentially as a matter of law, to an evidentiary hearing. In doing so, the
appellate court relied primarily on Campos, supra, 108 Cal.App.4th 839, in which
the father sought to modify a child custody and visitation order in response to the
mother’s decision to move with their two sons to a town approximately two hours
away by car. In Campos, the trial court read Burgess, supra, 13 Cal.4th 25, as
requiring denial of the father’s order to show cause for custody modification
without an evidentiary hearing because there was no allegation of bad faith in the
planned move. (Campos, at p. 842.) Accordingly, the trial court failed to consider
the father’s evidence that the move would be detrimental to the children’s welfare.
11
Yana appears to complain the trial court should have allowed Cameron
himself to testify. Although a trial court is authorized to consider and give due
weight to the wishes of a child who is of sufficient age and capacity so as to form
an intelligent preference as to custody (§ 3042, subd. (a)), it need not call a child
as a witness where the best interests of the child so dictate, and may instead
provide alternative means of obtaining information regarding the child’s
preferences (id., subd. (b)). By appointing counsel to represent and interview
Cameron and having counsel report the results of his interviews at the hearing, the
court obtained the information sought regarding Cameron’s views. Yana does not
establish error or abuse of discretion under section 3042.
19
Campos held this was error. Finding that evidence of bad faith and evidence of
detriment to the child are both relevant issues in a move-away case, Campos
remanded the matter to the trial court so it could consider the issue of detriment in
an evidentiary hearing. (Id. at p. 844.)
Contrary to the Court of Appeal’s conclusion here, Campos does not stand
for the proposition that a noncustodial parent who opposes a move away has an
absolute right to an evidentiary hearing for purposes of establishing detriment to a
child or determining the best interest of a child. Reasonably viewed, Campos
simply recognized the duty of the trial court to consider all relevant issues in a
move-away case. Where, as here, a trial court in a move-away case diligently
inquires into the matter of detriment in a formal court hearing, and duly considers
the noncustodial parent’s claims, evidence, and offers of proof but properly finds
them insufficient to establish the detriment required for a custody modification
under the changed circumstance rule, the court does not err or abuse its discretion
in denying custody modification without taking the further step of holding an
evidentiary hearing with live testimony.12 (Cf. In re Marriage of Stevenot (1984)
154 Cal.App.3d 1051, 1059, fn. 3 [citing favorably to the trial court’s procedure of
allowing counsel to make offers of proof of matters not in the declarations and
making inquiries of the parties and counsel as necessary to gain information it
needed to rule on a family law matter].)
12
We note Campos involved a situation where the parent seeking the custody
change sought to offer “evidence that the move would cause detriment to the
children because they were opposed to the move and because it would separate
them from their extended family, friends and classmates.” (Campos, supra, 108
Cal.App.4th at p. 843.) Although some of the evidence Yana offered seems
similar to the father’s evidence in Campos, the trial court here cannot be faulted
because it solicited and considered Yana’s offer of proof, as well as appointed
counsel’s report of the child’s views, before making its rulings.
20
DISPOSITION
The judgment of the Court of Appeal is reversed, and the matter is
remanded to that court for further proceedings consistent with the views expressed
herein.
BAXTER, J.
WE CONCUR:
GEORGE, C.J.
KENNARD, J.
WERDEGAR, J.
CHIN, J.
MORENO, J.
COOPER, J. *
_____________________________
* Presiding Justice of the Court of Appeal, Second Appellate District, Division
Eight, assigned by the Chief Justice pursuant to article VI, section 6 of the
California Constitution.
21
See next page for addresses and telephone numbers for counsel who argued in Supreme Court. Name of Opinion In re Marriage of Brown & Yana
__________________________________________________________________________________
Unpublished Opinion
Original Appeal
Original Proceeding
Review Granted XXX 125 Cal.Appp.4th 54
Rehearing Granted
__________________________________________________________________________________
Opinion No.
S131030Date Filed: February 2, 2006
__________________________________________________________________________________
Court:
SuperiorCounty: San Luis Obispo
Judge: Donald G. Umhofer
__________________________________________________________________________________
Attorneys for Appellant:
John F. Hodges, Daniel L. Helbert; Misho, Kirker & Associates and Vanessa Kirker for Appellant.__________________________________________________________________________________
Attorneys for Respondent:
Law Offices of Jeffrey W. Doeringer and Jeffrey W. Doeringer for Respondent. Judy Wood for Minor.22
Counsel who argued in Supreme Court (not intended for publication with opinion):
John F. Hodges789 Valley Road
Arroyo Grande, CA 93420
(808) 481-4570
Jeffrey W. Doeringer
Law Offices of Jeffrey W. Doeringer
16152 Beach Blvd., Suite 121
Huntington Beach, CA 92647
(714) 841-6116
Judy Wood
5975 Entrada Avenue
Atascadero, CA 93422
(805) 466-2600
23
Opinion Information
| Date: | Docket Number: |
| Thu, 02/02/2006 | S131030 |
Parties
| 1 | Brown, Nicole F. (Respondent) Represented by Jeffrey W. Doeringer Attorney at Law 16152 Beach Boulevard, Suite 121 Huntington Beach, CA |
| 2 | Yana, Anthony (Appellant) Represented by John F. Hodges Attorney at Law 789 Valley Road Arroyo Grande, CA |
| 3 | Nicole F. Brown And Anthony Yana (Overview party) |
| 4 | Yana, Cameron (Non-Title Respondent) Represented by Judy Connor-Wood Law Office of Judy Connor-Wood 5975 Entrada Avenue Atascadero, CA |
| Disposition | |
| Feb 2 2006 | Opinion: Reversed |
| Dockets | |
| Jan 28 2005 | Petition for review filed by respondent (Nichol F. Brown (Yana) |
| Jan 28 2005 | Record requested |
| Feb 2 2005 | Received Court of Appeal record one doghouse |
| Mar 16 2005 | Petition for review granted (civil case) Votes: George, C.J., Kennard, Baxter, Werdegar, Chin, and Moreno, JJ. Brown, J., was absent and did not participate. |
| Mar 17 2005 | Note: Records sent to Cal-Co-ord. Office: RT=1, 2, w /appendix, 3, w/appendix, 4 =2, 7, Pet. for Writ of Supercedas, Pet. for Rehrg., w/Joinder, Ans. to Rehrg. Motions, Exhibits, manila envelope. |
| Apr 6 2005 | Opening brief on the merits filed respondent Nicole F. Brown (Yana) |
| May 5 2005 | Notice of intent to rely on CA brief (as answer brief) filed by counsel for (Anthony Yana) Copy of Answer Brief attached w/Reply Brief from CA |
| Aug 17 2005 | Received: Vacation Certificate>>atty Doeringer for resp Nicole F. Brown (Yana) |
| Oct 12 2005 | Case ordered on calendar 11-09-05, 9:00 a.m., in Sacramento |
| Oct 17 2005 | Filed: Letter from Jeffrey W. Doeringer, counsel for Nicole Brown, stipulating & affirmatively agreeing to participation of Justice Kennard in the adjudication of this cause in reply to the court's request. |
| Oct 17 2005 | Filed: Letter from John F. Hodges, counsel for Anthony Yana, stating that Mr. Yana will not stipulate to Justice Kennard's participation in this case as she will not be present at oral argument on 11/09. |
| Oct 24 2005 | Filed: Letter from Joh F. Hodges, counsel for Anthony Yana, stating that Mr. Yana consents and will now stipulate to Justice Kennard's participation in this case. Letter also includes an application to divide time at oral argument with Judy Wood, "counsel for the minor in this case." |
| Oct 24 2005 | Filed: Letter from Jeffrey W. Doeringer, counsel for Nicole Brown, objecting to Mr. Hodges dividing oral argument time with Judy Wood. |
| Oct 26 2005 | Order filed The request of counsel for apellant to allow 2 counsel to argue on behalf of appellant at oral argument is granted. |
| Oct 26 2005 | Order filed The request of appellant to allocate to John F. Hodges 10 min. and Judy Wood 10 min. of the 20 min allotted time for oral argument is granted. Counsel's arguments shall be limited to the issue on which review was granted. |
| Nov 9 2005 | Cause argued and submitted |
| Feb 2 2006 | Opinion filed: Judgment reversed and Remanded. OPINION BY: Baxter, J. --- joined by : George, C.J., Kennard, Werdegar, Chin, Moreno, Cooper, JJ (assigned by the CJ) |
| Mar 8 2006 | Remittitur issued (civil case) |
| Mar 17 2006 | Received: receipt for remittitur from CA 2/6 |
| Briefs | |
| Apr 6 2005 | Opening brief on the merits filed |
| May 5 2005 | Notice of intent to rely on CA brief (as answer brief) |
