Filed 4/29/04
IN THE SUPREME COURT OF CALIFORNIA
In re the Marriage of SUSAN and GARY
LAMUSGA. )
____________________________________)
)
SUSAN POSTON NAVARRO,
Appellant,
S107355
v.
) Ct.App.
1/5
A096012
GARY LAMUSGA, )
Contra Costa County
Respondent.
Super. Ct. No. D95-01136
In In re Marriage of Burgess (1996) 13 Cal.4th 25, 28-29, we held that a
parent seeking to relocate after dissolution of marriage is not required to establish
that the move is “necessary” in order to be awarded physical custody of a minor
child. Similarly, a parent who has been awarded physical custody of a child under
an existing custody order also is not required to show that a proposed move is
“necessary” and instead “ ‘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.’ (Fam. Code, § 7501.)” (Id. at p. 29.)
In the present case, the superior court ordered that primary physical custody
of two minor children would be transferred from their mother to their father if
their mother moved to Ohio. The Court of Appeal reversed, holding that if the
custodial parent “has a good faith reason to move . . . the custodial parent cannot
1
be prevented, directly or indirectly, from exercising his or her right to change the
child’s residence” unless the noncustodial parent makes a “substantial showing”
that a change of custody is “essential” to prevent detriment to the children. We
granted review to determine whether the Court of Appeal in the present case
misapplied our holding in Burgess. We conclude that it did and reverse its
judgment.
As explained below, we conclude that just as a custodial parent does not
have to establish that a planned move is “necessary,” neither does the noncustodial
parent have to establish that a change of custody is “essential” to prevent
detriment to the children from the planned move. Rather, the noncustodial parent
bears the initial burden of showing that the proposed relocation of the children’s
residence would cause detriment to the children, requiring a reevaluation of the
children’s custody. The likely impact of the proposed move on the noncustodial
parent’s relationship with the children is a relevant factor in determining whether
the move would cause detriment to the children and, when considered in light of
all of the relevant factors, may be sufficient to justify a change in custody. If the
noncustodial parent makes such an initial showing of detriment, the court must
perform the delicate and difficult task of determining whether a change in custody
is in the best interests of the children.
The father in the present case satisfied his initial burden of showing that the
mother’s planned move would cause detriment to the children, requiring a
reevaluation of the children’s custody. The superior court properly considered the
relevant factors and did not abuse its discretion in deciding that a change in
primary custody from the mother to the father would be in the best interests of the
children if the mother moves to Ohio.
2
I. FACTS
Susan and Gary LaMusga married on October 22, 1988, and had two
children: Garrett, who was born on May 5, 1992, and Devlen, who was born two
years later to the day on May 5, 1994. The mother filed an amended petition for
dissolution of marriage on May 10, 1996, and requested sole physical custody of
the children, who were living with her in the family residence. The father objected
and requested joint legal and physical custody.
The parties were unable to agree on a visitation schedule and, pursuant to a
court order, stipulated to the appointment of Philip Stahl, Ph.D, a licensed
psychologist, to conduct a child custody evaluation. Pending this evaluation, the
parties agreed to a visitation schedule under which the children would be with
their father every Wednesday from 3:30 p.m. to 7:30 p.m. and Sunday from 10
a.m. to 5 p.m. The mother asserted that even this limited visitation with the father
was detrimental to the children, causing Garrett to become overly aggressive,
disorganized, unfocused, and to regress in toilet training, and causing Devlen to
develop a facial tick, a stutter, and a squint.
In a report dated October 10, 1996, Dr. Stahl observed that “there has been
a great deal of verbal hostility between Mr. and Mrs. LaMusga for years, at times
escalating to some pushing and shoving between them. . . . Both acknowledge that
communication has deteriorated completely and that there is no trust between
them. Mrs. LaMusga is concerned that Mr. LaMusga lives in an unsafe
environment, doesn’t take adequate care of the boys and is not responsive to their
needs. She would prefer that his time be even more limited.”
“Additionally, Ms. LaMusga has expressed a desire to move with the boys
to the Cleveland, Ohio, area. . . . [¶] In contrast, Mr. LaMusga is quite upset that
she wants to take the boys to Cleveland, and describes the environment there as
hostile to him. He believes that Ms. LaMusga has attempted to alienate him from
3
both the boys and . . . is quite concerned that, if she does get to move, he’ll end up
having no relationship with his boys whatsoever.”
Dr. Stahl opined that, in general, both the mother and the father were “good
enough parents,” but noted that the mother was “struggling with supporting and
encouraging frequent and continuing contact between” the children and their
father. Dr. Stahl believed that “each parent has different positive qualities to give
to the children and that it is in the children’s best interest to maintain a relationship
with each of them as they continue to grow.” But he noted his concern “about the
dynamic of conflict between Mr. and Ms. LaMusga and its impact on the children.
They don’t speak to one another, their conflict does filter down to the children,
and the children do show some evidence of anxiety related to this. Additionally,
their charges and counter-charges reflect the extent to which both parents are
willing to go to make the other look bad, something that is clearly detrimental to
Garrett and Devlen. . . . [T]he conflict level between the parents is the single-most
significant problem, and it has been going on for years.”
Dr. Stahl stated that the mother’s desire to move to Cleveland “must be
balanced with the children’s apparent need for frequent and continuing contact
with their father and looked at in the context of the parental hostility. As we
already observe, it appears that Ms. LaMusga has been reluctant to support
additional time or overnight time with the boys and their father, even though they
live less than five miles apart. She has been reluctant to support consistent phone
calls, as well. As indicated, Ms. LaMusga has concerns about the boys and their
functioning and she has chosen to respond to these concerns with efforts at
keeping Mr. LaMusga’s time rather limited. Additionally, it is this examiner’s
observation that Ms. LaMusga sees little or no negative impact on the boys at the
potential distance in their relationship with their father. While the likelihood of
parental conflict will be significantly reduced on a day-to-day basis if Ms.
4
LaMusga is in Cleveland (and that will likely benefit the boys), it is this
examiner’s observation that we must be concerned about Ms. LaMusga’s
willingness to follow through on regular and consistent visitation if she is half a
country away. [¶] It is this examiner’s opinion that the attachment between
Garrett and Devlen and their father is strong. However, the children have not
reached an age where they can maintain this attachment if they are away from him
over long distance and time. . . . Thus, it is this examiner’s observation that a
move at this time would be difficult for the boys given their developmental needs.
If we add the concern regarding Ms. LaMusga’s follow through associated with
the current level of conflict, a move might be difficult for the boys.”
Following a hearing on November 14, 1996, the superior court awarded the
parties joint legal custody of the children, with the mother having “primary
physical custody.”1 With the mother’s agreement, the father’s visitation was
increased over a period of months to a final schedule of every Tuesday and
Wednesday from 4 p.m. to 7:30 p.m. and every other weekend from Friday at 5
p.m. to Sunday at 6 p.m. Judgment subsequently was entered dissolving the
marriage as of December 31, 1997.
On July 6, 1998, the parties stipulated that during the summer, the father
would have custody of the children from July 9-15 and August 21-27, 1998, and
1
The provisions in the Family Code governing custody of children do not
use the term “primary physical custody.” (In re Marriage of Richardson (2002)
102 Cal.App.4th 941, 945, fn. 2.) Rather, the code uses the terms “joint physical
custody,” which “means that each of the parents shall have significant periods of
physical custody” (Fam. Code, § 3004), and “sole physical custody,” which
“means that a child shall reside with and be under the supervision of one parent,
subject to the power of the court to order visitation” (Fam. Code, § 3007). The
term “primary physical custody” does appear in Family Code section 4045,
subdivision (d)(3), which grants the Judicial Council the authority to review the
statewide uniform child support guidelines.
5
the mother would have custody of the children from July 17-23 and August 13-19,
1998. The preexisting custody and visitation schedule would apply at all other
times. On November 15, 1998, the father filed an order to show cause to have the
court establish a holiday visitation schedule, which it did by an order issued on
December 8, 1998.
The mother subsequently married Todd Navarro and, on September 16,
1999, gave birth to a daughter. The father also remarried. His wife, Karin, has a
daughter from her prior marriage.
On February 13, 2001, the mother filed an order to show cause to modify
the visitation order to permit her to relocate with the children to Cleveland, Ohio.
She alleged that she had family in the Cleveland area and her husband had
received an offer for a more lucrative job there. She noted in her supporting
declaration that Dr. Stahl had been reappointed and was conducting an evaluation
to determine whether the father’s visitation should be increased.
The father objected to the mother’s plan to move the children to Ohio and
asked that primary custody of the children be transferred to him if the mother
moved to Ohio. The father declared that the mother had attempted to alienate him
from their sons since their separation and feared that moving the boys to Ohio
would result in his “being lost as their father.”
On February 26, 2001, Dr. Stahl submitted a supplemental report that did
not address the mother’s proposal to move to Ohio, which she had made less than
two weeks earlier. Dr. Stahl stated that the parents were “at a continued impasse”;
the father wanted “equal joint custody of the boys” while the mother wanted to
discontinue the boys’ midweek visits with their father. He reported some
disturbing aspects of the boys’ relationship with their father, noting that the boys
were very critical of their father, but almost always in rather vague terms. Dr.
Stahl observed, however, that the children “seemingly had a good time at their
6
father’s home.” Once, Dr. Stahl “observed Devlen being affectionate with his dad,
but he later denied it.”
Dr. Stahl concluded that the boys were “alienated and split in their feelings
toward their parents,” in part because “[t]hey appear to be very aware of the
conflicts between the parents” and appeared to take the mother’s side. Dr. Stahl
further concluded the children seemed to be “somewhat overindulged,” stating:
“With their extreme polarization and with their overindulged emotions, both
Garrett and Devlen run the risk of having significant struggles emotionally,
especially with their peers, and with authority figures. In addition, it is this
examiner’s impression that both the boys also struggle a bit with difficulties in
self-image and feelings of inadequacy in comparison to others.” He blamed this,
in part, on “their parent’s high conflict divorce.” Dr. Stahl noted that the mother
“does appear to be contributing to the alienation of the boys,” although this
alienation tended to be “covert” and “unconscious.” He observed that the father
was “somewhat self-centered and doesn’t seem to deal with the boys’ feelings that
well.”
Dr. Stahl recommended that the father be awarded longer periods of
visitation and raised the possibility of transferring primary physical custody of the
children to their father if the situation did not improve, stating: “Research
suggests that alienated children do better with longer rather than shorter blocks of
time with each parent, and also that it’s helpful if fathers participate with children
in the schooling. . . . I would recommend a schedule in which they are with their
father every other week from Thursday after school until return to school on
Monday morning and every other week from Thursday after school until Friday
morning. Not only does this reduce the number of transitions that need to take
place with the parents together, but it also broadens the blocks of time that they are
with their dad. It also keeps mother as the primary parent, which is consistent for
7
them.” Dr. Stahl noted that if the situation did not improve, he might recommend
either “a truly joint custody arrangement” or giving “primary custody” to the
father.
Following a hearing on March 19, 2001, the father’s visitation was
increased as recommended by Dr. Stahl. The court again reappointed Dr. Stahl “to
provide a focused evaluation on the issue whether the relocation of the parties’
two minor children is in the best interest of said children.”
Dr. Stahl’s June 29, 2001, supplemental report notes that the mother has
wanted to move ever since the divorce but waited, at Dr. Stahl’s urging, until the
children were older. The move would improve her family’s “economic standard
of living, and . . . inherent quality of life . . . .” The mother “believes that she will
have no difficulty supporting the boys in their relationship with their dad,”
asserting “that she has always supported the boys in their relationship with their
dad, and that she is not a contributor to any alienation that the boys might feel. [¶]
Not surprisingly, Mr. LaMusga doesn’t see things the same way. . . . He is
opposing the move, especially at this time, because he worries that the boys will
regress in their relationship with him, especially after making tremendous progress
in their work with Dr. Tuggle [the boys’ therapist]. . . . He feels strongly that a
disruption now will break the bond that is developing.”
Dr. Stahl was concerned “that the boys might not maintain any positive
relationship with their dad if they move,” noting that such a loss “would be
significant.” But he added that this “must be balanced with the potential losses
that the boys might experience if their mother moves, and they stay,” observing:
“They have been in the primary care of their mother since the parents’ divorce and
they will likely have a significant loss [if] she moves without them. They also
have a very close relationship with their sister Aisley, as well as Todd, and they
will feel those losses as well. Third, they have their own desire to move. . . . If
8
they don’t move, they’re likely to feel that their wishes aren’t being heard.” Dr.
Stahl also observed that forcing the children to remain in California could cause
them to further reject their father.
Dr. Stahl opined that if the boys were permitted to move to Ohio: “The
primary loss for the boys will be related to the growing and improving relationship
with their dad. I suspect that they’ll have few problems adjusting to a new school,
friends, or activities, but it may be hard for them to deal with the emerging change
in their relationship with their dad. The relationship currently is tenuous at best,
for all of the reasons I outlined in the original update, and it is unlikely that there
will be no impact to their relationship. . . . [¶] The underlying risk, however, is
that, with absence, they will regress to a more detached and disconnected state
with their father. With regular and somewhat increased contact, there is
improvement in the relationships. However, this improvement is tenuous, and I
am concerned that the move will interrupt any progress that might be occurring at
the present time.”
Although the mother stated that she wanted to move to Ohio because that
“is where she is originally from and where she has family support,” Dr. Stahl
suggested an additional motive: “Underneath, however, it has always appeared
that [the mother] has wanted to move so that she can remove herself and the boys
from the day-to-day interactions with [the father]. She has difficulty dealing with
him and prefers to have as little communication with him as possible.”
“I am concerned about ways that she might inadvertently or unconsciously
provoke loyalty conflicts, as the children are all too aware of her negative dealings
toward their father. Her contribution to the conflict is a major contribution to the
boys’ loyalty conflicts and alienation.”
Acknowledging that there was “no good solution in this matter,” Dr. Stahl
observed that “there is a risk that both moving or not moving may create a
9
significant change” in the children’s relationship with their father, stating, “It’s
difficult to predict which way this will go. Mother believes that the boys will be
less rejecting of their dad if they move and father believes that a move will put the
nail in the coffin of their relationship. I suspect that neither of them is accurate
and the actual reaction of the boys will be based on how the parents handle their
issues over time.
“In fact, in my opinion, the critical issue will be mother’s ‘real’ behavior
after the move takes place. If she acts as she says she will, the boys will talk with
their father two or three times per week, and these conversations and
communications will be substantive and not superficial. If she acts as she says she
will, the boys will enjoy their father’s periodic visits to Ohio. If she acts as she
says she will, they will get on the plane and come to California for dad’s custodial
time, and they’ll be ready to have a good time with their dad. If she acts as she
says she will, it could be that the boys will actually improve in their relationship
with their dad, and the gains being made now can continue. [¶] However, the risk
is that she won’t act as she says she will. If dad is correct, and mother’s sister is
going to foment the anger, there won’t be any support in Ohio for her to act as she
says she will. If that’s the case, once they get to Ohio, he’ll be correct that his
relationship with the boys will regress. . . .”
On August 23, 2001, a hearing was held in the superior court on the
mother’s request to move the children’s residence to Ohio. The mother declared
that her husband had accepted a position as sales manager at a Toyota dealership
in Cleveland, Ohio in March 2001 and had been living in Cleveland with her
family since then.
Dr. Stahl testified and responded to a question by the mother’s counsel why
the mother should not be permitted to move the children to Ohio, stating: “I think
the reasons would be twofold: [¶] One, there is no evidence that I’ve seen in the
10
five years that I’ve known this family that [the mother] will really do what she
said she will do. In terms of being supportive of the boys’ relationship with their
father in a way that truly will reduce the loyalty conflicts and truly will help them,
um, feel better about things with him. [¶] That would be one reason. [¶] The
other is it is still a tenuous relationship. And in that it’s a tenuous relationship, I’ll
stick with what I said in 1996: It makes it very difficult to — to predict that it’s
likely to get better rather [than] stay tenuous or get worse if the move is allowed.”
Dr. Stahl acknowledged that the father also bore some of the responsibility
for his strained relationship with his sons, stating: “He gets frustrated and
impatient sometimes.” Dr. Stahl added that the father contributes to the children’s
alienation to the extent he perpetuates his conflict with the mother.
The superior court ruled as follows: “The issue is not whether either of
these parents are competent and qualified to be custodial parents, I think the
evidence indicates that they are. That is not the question. [¶] The question is
whether there is sufficient evidence at this point to determine, one, that the best
interests of the children is served by relocating with Mother to Ohio, or whether
the best interests are served by the —a change of physical custody if [the mother]
is to relocate.”
The court acknowledged that the mother is not purposely trying to alienate
the children from their father, but noted that the mother’s inability to “let go” of
her anger toward the father caused her to project those feelings onto their children
and to reinforce the children when they expressed negative feelings toward their
father. “That aligns the children with one parent and results in a strained or hostile
relationship with the other parent.” The court also acknowledged that this was not
“a bad faith move away. I don’t think this is an instance where [the mother is]
attempting to relocate with the children for the specific purpose of limiting their
contact or relationship with their father. I think it’s far more subtle than that. . . .”
11
“The primary importance, it seems to me at this point, is to be able to
reinforce what is now a tenuous and somewhat detached relationship with the boys
and their father. . . . [¶] I think the concerns about the relationship being lost if
the children are relocated at this time are realistic. . . . [¶] Therefore, I think that a
relocation of the children out of the State of California, the distance of 2000 miles
is – would inevitably under these circumstances be detrimental to their welfare. It
would not promote frequent and continuing contact with the father, and I would
deny the request to relocate the children. [¶] If [the mother] wishes to relocate to
the state of Ohio, certainly she is entitled to do that. Should she choose to do so,
then I would implement the recommendations contained in Dr. Stahl’s
supplemental report of June 29th of 2001 which would provide for the primary
physical custody of the children, at least during the school year, to Mr. Lamusga.
. . . [¶] [I]f [the mother] decides not to relocate, then the existing custodial
arrangement will remain.”
The mother appealed and the Court of Appeal reversed the judgment. The
Court of Appeal applied the deferential abuse of discretion standard of review we
recognized in In re Marriage of Burgess, supra, 13 Cal.4th 25, 32: “The precise
measure is whether the trial court could have reasonably concluded that the order
in question advanced the ‘best interest’ of the child.” But the appellate court
concluded that “although the [superior] court referred several times during the
hearing to ‘best interest’ as the applicable standard, its order was not truly based
on that criterion as it applies in the context of this custodial parent’s relocation.”
The Court of Appeal concluded that the superior court “neither proceeded from the
presumption that Mother had a right to change the residence of the children, nor
took into account this paramount need for stability and continuity in the existing
custodial arrangement. Instead, it placed undue emphasis on the detriment that
12
would be caused to the children’s relationship with Father if they moved.” We
granted review.
Shortly after we granted review, the mother filed a notice of abandonment
of her appeal, supported by a declaration stating that she no longer intended to
move to Ohio, but intended to move to Arizona instead. She asked this court to
dismiss the appeal. The father objected. We denied the mother’s motion to
dismiss the appeal. The mother’s counsel later sent to this court a copy of a letter
dated July 8, 2003, informing the father that the mother and their children had
moved to Arizona. Upon the request of the mother, and without objection by the
father, we have taken judicial notice of an order of the superior court filed on
August 29, 2003, permitting the children to live with the mother in Arizona
“temporarily” pending our ruling in the present proceedings.
Despite the fact that it appears that the mother no longer intends to move to
Ohio, the matter under review is not moot. It remains possible that the mother
could chose to move to Ohio, and she has changed the residence of the children to
Arizona. Accordingly, the issue of whether it is in the children’s best interests to
modify the custody order if the mother changes the residence of the children is not
moot. In any event, we may decline to dismiss a case that has become moot
“where the appeal raises issues of continuing public importance. [Citations.]”
(Lundquist v. Reusser (1994) 7 Cal.4th 1193, 1202, fn. 8.) This appeal certainly
does.
II. DISCUSSION
In In re Marriage of Burgess, supra, 13 Cal.4th 25 (Burgess), the mother
was awarded temporary sole physical custody of the couple’s two children upon
the dissolution of their marriage. Seven months later, the mother informed the
court that she had accepted a job transfer and planned to move with the children to
Lancaster, California, which was about a 40-minute drive from the couple’s
13
former home in Tehachapi. She explained that her new job would be “career
advancing” and that moving to Lancaster would afford the children greater access
to medical care, extracurricular activities, private schools, and day care facilities.
The father objected and asked that sole physical custody of the children be
transferred to him, contending that he could not maintain his current visitation
schedule if the children moved to Lancaster.
The superior court awarded the mother sole physical custody of the
children and modified the father’s visitation schedule. The court found “ ‘that it is
in the best interest of the minor children that the minors be permitted to move to
Lancaster with the [mother] and that the [father] be afforded liberal visitation.’ ”
(Burgess, supra, 13 Cal.4th at p. 30.) The father appealed and the Court of
Appeal reversed, holding that the mother had failed to sustain her burden of
showing that moving the children to Lancaster was “ ‘reasonably necessary.’ ”
(Id. at p. 31.) We granted review and reversed the judgment of the Court of
Appeal.
We observed that “[i]n an initial custody determination, the trial court has
‘the widest discretion to choose a parenting plan that is in the best interest of the
child.’ (Fam. Code, § 3040, subd. (b).) It must look to all the circumstances
bearing on the best interest of the minor child. [Citation.]” (Burgess, supra, 13
Cal.4th at pp. 31-32.) Citing Family Code section 7501, which states that “[a]
parent entitled to 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,” we noted that the court must also consider “the
presumptive right of a custodial parent to change the residence of the minor
children, so long as the removal would not be prejudicial to their rights or welfare.
[Citation.] Accordingly, in considering all the circumstances affecting the ‘best
14
interest’ of minor children, it may consider any effects of such relocation on their
rights or welfare.” (Burgess, supra, at p. 32.)
In reviewing the superior court’s ruling, we applied “the deferential abuse
of discretion test.” “The precise measure is whether the trial court could have
reasonably concluded that the order in question advanced the ‘best interest’ of the
child.” (Burgess, supra, 13 Cal.4th at p. 32.) We concluded that the superior
court had not abused its discretion. “After extensive testimony from both parents,
the trial court not unreasonably concluded that it was in the ‘best interest’ of the
minor children that the father and the mother retain joint legal custody and that the
mother retain sole physical custody, even if she moved to Lancaster.” (Ibid.)
We rejected the Court of Appeal’s holding that the mother was required to
show that it was “necessary” for her to move to Lancaster: “The trial court must
— and here it did — consider, among other factors, the effects of relocation on the
‘best interest’ of the minor children, including the health, safety, and welfare of
the children and the nature and amount of contact with both parents. [Citation.]
We discern no statutory basis, however, for imposing a specific additional burden
of persuasion on either parent to justify a choice of residence as a condition of
custody.” (Burgess, supra, 13 Cal.4th at p. 34.) We observed that the statutory
policy promoting “frequent and continuing contact with both parents” (Fam. Code,
§ 3020) does not limit “the trial court’s broad discretion to determine, in light of
all the circumstances, what custody arrangement serves the ‘best interest’ of minor
children.” (Burgess, supra, 13 Cal.4th at p. 34.) Rather, we noted, Family Code
section 3040, subdivision (b), expressly provides the court with “ ‘the widest
discretion to choose a parenting plan that is in the best interest of the child.’ ”
(Burgess, supra, at pp. 34-35.)
Although Burgess involved an initial determination of custody, we held that
“the same conclusion applies when a parent who has sole physical custody under
15
an existing judicial custody order seeks to relocate: the custodial parent . . . bears
no burden of demonstrating that the move is ‘necessary.’ ” (Burgess, supra, 13
Cal.4th at p. 37.) But we recognized that, as with any allegation that “changed
circumstances” warrant a modification of an existing custody order, the
noncustodial parent has a substantial burden to show that “ ‘some significant
change in circumstances indicates that a different arrangement would be in the
child’s best interest.’ [Citation.]” (Burgess, supra, 13 Cal.4th at p. 38.) The
changed circumstance rule provides “that once it has been established that a
particular custodial arrangement is in the best interests of the child, the court need
not reexamine that question. Instead, it should preserve the established mode of
custody unless some significant change in circumstances indicates that a different
arrangement would be in the child’s best interest. The rule thus fosters the dual
goals of judicial economy and protecting stable custody arrangements.
[Citations.]” (Burchard v. Garay (1986) 42 Cal.3d 531, 535.)2 “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.” ’ [Citation.]” (Burgess, supra, 13 Cal.4th at p. 38.)
2
In his reply brief, the father argues that the changed circumstance rule does
not apply in this case because there has not been “a final judicial custody
determination.” We do not agree. The court’s December 23, 1996 “Order After
Hearing,” granting joint legal custody to the parties and sole primary physical
custody to the mother, constituted a final judicial custody determination that the
court need not reconsider in the absence of changed circumstances. Our holding
in Montenegro v. Diaz (2001) 26 Cal.4th 249, cited by the father, involved a
stipulated custody order, rather than an order following a hearing as in the present
case, and does not alter our conclusion.
16
We were quick to emphasize, however, that “bright line rules in this area
are inappropriate: each case must be evaluated on its own unique facts. Although
the interests of a minor child in the continuity and permanency of custodial
placement with the primary caretaker will most often prevail, the trial court, in
assessing ‘prejudice’ to the child’s welfare as a result of relocating even a distance
of 40 or 50 miles, may take into consideration the nature of the child’s existing
contact with both parents . . . and the child’s age, community ties, and health and
educational needs. Where appropriate, it must also take into account the
preferences of the child. [Citation.]” (Burgess, supra, 13 Cal.4th at p. 39.)3
Recently, the Legislature codified our decision in Burgess by amending
Family Code section 7501 to add subdivision (b), which reads: “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.”
(Fam. Code, § 7501, as amended by Stats. 2003, ch. 674, § 1.)
The Courts of Appeal have applied the rules we stated in Burgess on
numerous occasions. In all but two cases (In re Marriage of Williams (2001) 88
Cal.App.4th 808 and In re Marriage of Campos (2003) 108 Cal.App.4th 839,
which are discussed below), the Courts of Appeal have affirmed the superior
court’s exercise of discretion.
In Cassady v. Signorelli (1996) 49 Cal.App.4th 55, the Court of Appeal
affirmed an order denying the mother’s request to change the residence of the
3
We noted that “[a] different analysis may be required when parents share
joint physical custody of the minor children under an existing order and in fact,
and one parent seeks to relocate with the minor children.” (Burgess, supra, 13
Cal.4th at p. 40, fn. 12.) In such cases, if it is shown that the best interests of the
children require modification or termination of the order, the court “must
determine de novo what arrangement for primary custody is in the best interest of
the minor children.” (Ibid.)
17
child to Florida so she could seek employment there as a “parapsychologist.” The
superior court had observed that the mother had no serious job prospects in Florida
and that the proposed move “seemed intended simply to frustrate father’s
relationship with” the child. (Id. at p. 59.) The Court of Appeal affirmed, stating:
“We find no abuse of discretion . . . . The trial court could quite properly conclude
it was in [the child’s] best interests to have continued regular visitation with her
father, with whom she has a good relationship, and that a move to Florida would
almost entirely frustrate this interest in a continued parental relationship.” (Ibid.)
Agreeing with the superior court that the mother “simply wishe[d] to get away
from father by moving elsewhere” (id. at p. 60), the Court of Appeal reiterated that
the proposed move was “an apparent pretext to defeat visitation.” (Id. at p. 61.)
In several cases, the Courts of Appeal have affirmed orders permitting a
custodial parent to change the residence of a child. In In re Marriage of Condon
(1998) 62 Cal.App.4th 533, the superior court permitted the mother to return with
the children to Australia where the couple had been married and the children were
born. Because the court found the balancing of factors “only slightly favor”
permitting the mother to move the children to Australia, the court ruled that it
would switch primary physical custody of the children to the father if the mother
chose instead to relocate to France where she also had career opportunities.
Among the factors considered by the superior court were the mother’s ability to
financially support herself in Australia rather than be wholly dependent on the
father for support; the impact of the parties’ stressful relationship on the children;
the mother’s extensive family in Australia; the children’s primary emotional
attachment to their mother; and the “children’s lack of a firm long-time base in
California.” (Id. at p. 539.) The Court of Appeal affirmed in large part the
superior court’s order, noting that “[g]reat deference must be given to the trial
court’s adjudication of the facts” and commending the superior court’s “herculean
18
efforts to fairly balance all the factors in the case.” (Id. at p. 549; see also In re
Marriage of Whealon (1997) 53 Cal.App.4th 132 [affirming an order permitting
the mother to move with her young child to Syracuse, New York to accept a new
job].)
In In re Marriage of Edlund & Hales (1998) 66 Cal.App.4th 1454, the
Court of Appeal affirmed the superior court’s order permitting the mother to move
with the child to Indiana, stating: “After a thorough review of the record, we are
satisfied that the trial court carefully considered all the factors bearing on [the
child’s] best interest, and that its decision was supported by substantial evidence
of the strength and primacy of the bond between [the child] and her mother, [the
mother’s] proven ability to provide and care for [the child] on a full-time basis,
and the overwhelming, undisputed proof that [the father] was not adequately
prepared to assume primary physical custody of his daughter.” (Id. at p. 1473-
1474.)
In In re Marriage of Bryant (2001) 91 Cal.App.4th 789, the superior court
had awarded primary physical custody of the children to the mother, who intended
to move to New Mexico, where she had been raised, to be with her family. An
evaluation conducted by a court-appointed expert showed that the mother was the
“primary parent” and “had a greater level of involvement in the children’s lives”
than did the father. (Id. at p. 792.) The superior court noted that “it would be
detrimental to the children to make a ‘radical shift’ to [the father] as the primary
parent.” (Ibid.) The superior court found that the mother was not motivated to
move by bad faith and had not unreasonably interfered with the father’s visitation
with the children.
The Court of Appeal affirmed, recognizing that the superior court has
“ ‘ “the widest discretion to choose a parenting plan that is in the best interest of
the child.” ’ [Citation.] This requires the court to consider all the circumstances.”
19
(In re Marriage of Bryant, supra, 91 Cal.App.4th at p. 793.) The Court of Appeal
also recognized the difficulty of the decision that faced the superior court:
“Unfortunately where, as here, both parents are competent and loving, there is
frequently no solution that is fair to everyone involved.” (Id. at p. 794; In re
Marriage of Lasich (2002) 99 Cal.App.4th 702 [permitting the mother to return
with the children to her native country of Spain]; In re Marriage of Abrams (2003)
105 Cal.App.4th 979 [affirming an order permitting the mother to move with the
children from Elk Grove, California (near Sacramento) to San Ramon, California
(near San Francisco)].)
The difficulty of the task facing the courts in these matters is exemplified
by the quandary posed in In re Marriage of Abargil (2003) 106 Cal.App.4th 1294,
which the Court of Appeal correctly observed would challenge the wisdom of
King Solomon. The parents were both Israeli citizens who came to the United
States on tourist visas and overstayed. They married and had a son. When they
separated, the child lived primarily with the mother and visited the father. The
mother returned to Israel to nurse her dying mother, taking the boy with her.
While she was in Israel, the father filed for divorce. When the mother attempted
to return to California, she was barred from entering the United States for 10 years
as a sanction for having overstayed her visa. This sanction was stayed, however,
to permit her to return to California to litigate the custody of the child. The father
asserted that he would be unable to visit his son if he moved to Israel, because the
father was applying for permanent residency in the United States and could not
leave the country for an extended time.
Following a five-day trial, the court permitted the child to move to Israel
with the mother, noting that she had been the child’s primary caregiver and finding
that she was more likely to facilitate visitation with the father than if the parental
roles were reversed. (In re Marriage of Abargil, supra, 106 Cal.App.4th at
20
p. 1298.) The Court of Appeal affirmed, holding that the superior court’s finding
that moving to Israel with the mother was in the child’s best interests was
supported by substantial evidence.
In only two cases have the Courts of Appeal reversed the superior court’s
exercise of discretion, and both cases involved unusual circumstances.
In In re Marriage of Williams, supra, 88 Cal.App.4th 808, the superior
court permitted two of the couple’s four children to move to Utah with their
mother, but ordered the other two children to remain in Santa Barbara with their
father. This apparent attempt at compromise pleased no one. On appeal by the
father, both parents asserted that the superior court abused its discretion. The
Court of Appeal agreed, holding that the superior court’s order was not supported
by “compelling circumstances warranting the separation of the siblings.” (Id. at p.
810.) The Court of Appeal noted, however: “Had the family law court allowed all
of the children to either reside in Santa Barbara or move to Utah, we could easily
affirm on the deferential standard of appellate review. [Citation.]” (Id. at p. 813.)
The other case in which the Court of Appeal reversed the superior court
was In re Marriage of Campos, supra, 108 Cal.App.4th 839. The father in that
case sought modification of a child custody and visitation order relating to his
sons, aged 15 and 12, after their mother announced she would move with the
children from Santa Barbara to Moorpark, about two hours away by car. The
superior court summarily denied the request, finding that the mother did not have a
bad faith reason for the move. The Court of Appeal reversed and remanded the
matter for an evidentiary hearing to determine whether the proposed move would
be detrimental to the welfare of the children. The Court of Appeal recognized that
even when the custodial parent has a good faith reason for the proposed move, “a
change of custody may be ordered in a ‘move away’ case where, as a result of the
move, the children will suffer detriment rendering a change of custody essential or
21
expedient for their welfare.” (Id. at p. 843.) “In a move away case, the trial court
must always consider whether a custodial parent is acting in bad faith. [Citation.]
It must also always consider whether ‘as a result of relocation with [the custodial]
parent, the child will suffer detriment rendering it “ ‘essential or expedient for the
welfare of the child that there be a change.’ ” ’ [Citation.]” (Id. at p. 844.)
The Court of Appeal in the present case held that the superior court abused
its discretion in ordering that primary physical custody of the children would be
transferred to the father if the mother moved to Ohio. The Court of Appeal
concluded that the superior court “neither proceeded from the presumption that
Mother had a right to change the residence of the children, nor took into account
this paramount need for stability and continuity in the existing custodial
arrangement. Instead, it placed undue emphasis on the detriment that would be
caused to the children’s relationship with Father if they moved.” We disagree.
We reaffirm our statement in Burgess 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. [Citations.]” (Burgess, supra, 13 Cal.4th at pp. 32-33.) But there
is nothing in the record before us that indicates that the superior court failed to
consider the children’s “interest in stable custodial and emotional ties” with their
mother. (Burchard v. Garay, supra, 42 Cal.3d 531, 536.) The court carefully
considered the comprehensive reports prepared by Dr. Stahl and the evidence
submitted by both parties. The court placed “primary importance” on the effect
the proposed move would have on “what is now a tenuous and somewhat detached
relationship with the boys and their father,” concluding that the proposed move
would be “extremely detrimental” to the children’s welfare because it would
disrupt the progress being made by the children’s therapist in promoting this
22
relationship. The superior court found that it was “realistic” to be concerned that
the proposed move could result in the relationship between the father and the
children “being lost.” In future cases, courts would do well to state on the record
that they have considered this interest in stability, but the lack of such a statement
does not constitute error and does not indicate that the court failed to properly
discharge its duties. (In re Marriage of Arceneaux (1990) 51 Cal.3d 1130, 1133
[“A judgment or order of a lower court is presumed to be correct on appeal, and all
intendments and presumptions are indulged in favor of its correctness”].)
Contrary to the conclusion of the Court of Appeal, the superior court did
not place “undue emphasis” on the detriment to the children’s relationship with
their father that would be caused by the proposed move. The weight to be
accorded to such factors must be left to the court’s sound discretion. The Court of
Appeal erred in substituting its judgment for that of the superior court.
Noting that the superior court relied on the history of animosity between the
parents, and the mother’s failure to foster and encourage a healthy relationship
between the children and their father, the Court of Appeal quoted the superior
court’s comment: “ ‘Clearly if the parties had been co-parenting with the children
and cooperative in this matter, under those circumstances there might well be a
presumptive right’ for Mother to relocate with the children.” The Court of Appeal
concluded that the superior court improperly punished the mother for her past
conduct by transferring primary physical custody of the children to their father.
We disagree.
The Court of Appeal correctly noted that the superior court’s function in
determining custody is not to reward or punish the parents for their past conduct,
but to determine what is in the best interests of the children. (In re Marriage of
Condon, supra, 62 Cal.App.4th 533, 553.) But this does not mean that the court
may not consider the past conduct of the parents in determining what future
23
arrangement will be best for the children. (See In re Marriage of Abargil, supra,
106 Cal.App.4th 1294, 1299 [finding that the mother respected the father’s
relationship with his son and was likely to foster continuing contact between them,
noting her past efforts to nurture that relationship, and contrasting the father’s
disparagement of the mother’s parenting skills]; In re Marriage of Lasich, supra,
99 Cal.App.4th 702, 719 [noting that the mother had never tried to block the father
from exercising his visitation rights]; In re Marriage of Bryant, supra, 91
Cal.App.4th 789, 792 [noting in permitting a change of the child’s residence that
the mother had not “unreasonably interfered with [the father’s] visitation with the
children].) Clearly, the court must consider the past conduct of the parents in
fashioning a custody order that serves the best interests of the children.
In the present case, the superior court recognized that “[t]he issue is not
whether either of these parents are competent and qualified to be custodial parents
. . . . [¶] The question is whether . . . the best interests of the children is served by
relocating with Mother to Ohio, or whether the best interests are served by . . . a
change of physical custody if [the mother] is to relocate.” There is nothing in the
record before us that indicates the superior court acted out of a desire to punish or
reward either parent. But the mother’s past conduct indicated that it was unlikely
that she would follow through on her promises to encourage the children’s
relationship with their father if they moved to Ohio. Dr. Stahl testified that “there
is no evidence that I’ve seen in the five years that I’ve known this family that [the
mother] will really do what she said she will do. In terms of being supportive of
the boys’ relationship with their father in a way that truly will reduce the loyalty
conflicts and truly will help them . . . feel better about things with him.”
The superior court did misspeak, however, in stating that the mother might
have had a presumptive right to relocate with the children if the parents had co-
parented cooperatively. The mother — as the parent with primary physical
24
custody of the children — had a presumptive right to change the children’s
residence unless the proposed move “would result in ‘prejudice’ to [the children’s]
‘rights or welfare.’ [Citation.]” (Burgess, supra, 13 Cal.4th at p. 38.) But we are
convinced, after examining the entire record, that the court’s imperfect choice of
words in this single regard does not indicate that the court misperceived the
standard for determining the question before it. The court was correct that the
situation might have been far different had the parents shown a history of
cooperative parenting. If that had been the case, it might have appeared more
likely that the detrimental effects of the proposed move on the children’s
relationship with their father could have been ameliorated by the mother’s efforts
to foster and encourage frequent, positive contact between the children and their
father. But the court reasonably concluded that the present case presented the
opposite situation. The parents’ history of animosity and the mother’s consistent
attempts to limit contact between the children and their father indicated that the
proposed move would be detrimental to the children. Essentially, the court
concluded that the mother’s past conduct made it unlikely that she would facilitate
the difficult task of maintaining the father’s long-distance relationship with the
boys.
The Court of Appeal was concerned about the superior court’s reliance
upon the detriment to the children’s relationship with their father that would be
caused by the proposed move, because “[t]here is inevitably a significant
detriment to the relationship between the child and the noncustodial parent”
whenever the custodial parent relocates with the children. The Court of Appeal
observed that “if evidence of some detriment due to geographical separation were
to mandate a change of custody, the primary custodial parent would never be able
to relocate.” We agree. We do not suggest that a showing that a proposed move
will cause detriment to the relationship between the children and the noncustodial
25
parent mandates a change in custody. But it is within the wide discretion of the
superior court to order a change of custody based upon such detriment, if such a
change is in the best interests of the children in light of all the relevant factors.
It is instructive to compare the present case to In re Marriage of Edlund &
Hales, supra, 66 Cal.App.4th 1454, which involved similar circumstances. The
mother in Edlund wished to move with her child to another state where her fiancé
had accepted a job and was already living and where they would have a lower cost
of living, allowing her to stay at home with her children rather than working full
time outside the home. A mediator found that “ ‘the mother does not appear to
have negative motives for the move, i.e., [to] frustrate contact between the father
and the child’ ” (id. at p. 1459) and an evaluator opined that the mother “was
sincere about her reasons for moving” (id. at p. 1462). Significantly, the court
relied upon the evaluator’s opinion that the mother had not attempted to limit the
father’s visitation in the past, noting that the mother “ ‘did not express any anger
or upset’ ” with the father and “ ‘acknowledged the importance of his role as
Natalie’s father. She endorsed their relationship and believes it is paramount for
them to continue to have a strong bond. There is no evidence that [the mother] has
frustrated or endeavored to limit or prohibit [the father’s] custodial time with
Natalie in the past.’ ” (Ibid.) Finally, the evaluator noted that the father “ ‘would
experience great difficulty’ ” if he were given primary physical custody of the
child. (Id. at p. 1463.) Although the superior court questioned the mother’s
judgment, it permitted the mother to change the residence of the child.
The Court of Appeal in Edlund affirmed, concluding that the superior court
had not abused its discretion: “After a thorough review of the record, we are
satisfied that the trial court carefully considered all the factors bearing on Natalie’s
best interest, and that its decision was supported by substantial evidence of the
strength and primacy of the bond between Natalie and her mother, [the mother’s]
26
proven ability to provide and care for Natalie on a full-time basis, and the
overwhelming, undisputed proof that [the father] was not adequately prepared to
assume primary physical custody of his daughter. Thus, we conclude the trial court
did not abuse its discretion by issuing a move-away order in the circumstances of
this case.” (In re Marriage of Edlund & Hales, supra, 66 Cal.App.4th 1454, 1473-
1474.)
The Edlund court considered the detriment to the child’s relationship with
her father that was likely to result from the move, but correctly concluded that,
under the circumstances of that case, this was insufficient to alter its holding: “we
cannot imagine a case in which a child with any meaningful relationship with the
noncustodial parent would not be ‘significantly negatively impacted’ by a good
faith decision by a custodial parent to move, over the noncustodial parent’s
objection, to a distant location. But if the evidence of ‘detriment’ contained in [the
evaluator’s] report were sufficient to support denial of a move-away order in this
case, no primary custodial parent would ever be able to secure such an order.” (In
re Marriage of Edlund & Hales, supra, 66 Cal.App.4th at p. 1472.)
We agree that, considering all of the circumstances in Edlund, the superior
court in that case did not abuse its discretion in permitting the change in the
child’s residence, but the Court of Appeal in Edlund may have inadvertently
generated some confusion when it stated as a general conclusion: “The showing
of ‘changed circumstances’ required of the noncustodial parent must consist of
more than the fact of the proposed move.” (In re Marriage of Edlund & Hales,
supra, 66 Cal.App.4th at p. 1469.) If we interpret this statement narrowly, it
certainly is true. The mere fact that the custodial parent proposes to change the
residence of the child does not automatically constitute “changed circumstances”
that require a reevaluation of an existing custody order. A proposed change in the
residence of a child can run the gamut from a move across the street to a relocation
27
to another continent. As we have noted, the noncustodial parent has the burden of
showing that the planned move will cause detriment to the child in order for the
court to reevaluate an existing custody order.
But some courts have mistakenly interpreted the above quoted statement in
Edlund more broadly to mean that the likely consequences of a proposed move
can never constitute changed circumstances that justify a reevaluation of an
existing custody order. (In re Marriage of Abrams, supra, 105 Cal.App.4th 979,
988 [“it is not enough to show the child has a meaningful relationship with the
noncustodial parent and will be ‘negatively impacted’ by the custodial parent’s
good faith decision to move. If this were sufficient to support denial of a move-
away order, no primary custodial parent would ever be able to secure such an
order”]; In re Marriage of Lasich, supra, 99 Cal.App.4th 702, 711 [“Relocation
alone cannot prove detriment because no move-away request could succeed under
that standard,” citing In re Marriage of Edlund & Hales, supra, 66 Cal.App.4th
1454].) This is incorrect. The likely consequences of a proposed change in the
residence of a child, when considered in the light of all the relevant factors, may
constitute a change of circumstances that warrants a change in custody, and the
detriment to the child’s relationship with the noncustodial parent that will be
caused by the proposed move, when considered in light of all the relevant factors,
may warrant denying a request to change the child’s residence or changing
custody. The extent to which a proposed move will detrimentally impact a child
varies greatly depending upon the circumstances. We will generally leave it to the
superior court to assess that impact in light of the other relevant factors in
determining what is in the best interests of the child.
The Court of Appeal in the present case held that the father bore the burden
of showing “that modification of custody is essential for the child’s welfare,”
citing our statement in Burgess that a change of custody in a move-away case is
28
justified “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.” ’ [Citation.]” (Burgess, supra, 13 Cal.4th 25, 38.) It is
significant that the Court of Appeal reduced the phrase “essential or expedient”
that we used in Burgess to simply “essential.” In doing so, the Court of Appeal
placed too great a burden on the noncustodial parent in a move-away case.
The phrase “essential or expedient” in Burgess derives from the opinion in
Washburn v. Washburn (1942) 49 Cal.App.2d 581, 587, which held that a change
of custody could be ordered only “where adequate cause therefore arises out of
changed conditions.” The Washburn court stated: “Generally speaking, there may
be no change in the custody provisions of a decree unless the material facts and
circumstances occurring subsequently are of a kind to render it essential or
expedient for the welfare of the child that there be a change.” (Id. at p. 588.) The
court further noted that “[i]n custody cases the underlying principle, paramount to
all others, is the welfare and best interests of the child” (id. at p. 587) and “each
case must be solved on its own facts.” (Id. at p. 588.) Neither Washburn nor
Burgess imposes upon the noncustodial parent an artificial requirement to prove
that a change in custody is “essential.” Both cases recognize that the paramount
concern is the welfare and best interests of the child. A change in custody is
“essential or expedient” within the meaning of Burgess, therefore, if it is in the
best interests of the child.
The Court of Appeal in the present case further concluded that the superior
court improperly used its conditional order transferring primary physical custody
to the father as a device to restrain the mother from relocating. We agree that a
court must not issue such a conditional order for the purpose of coercing the
custodial parent into abandoning plans to relocate. Nor should a court issue such
an order expecting that the order will not take effect because the custodial parent
29
will choose not to relocate rather than lose primary physical custody of the
children. But there is nothing in the record before us that indicates the superior
court did so in the present case. The father had long sought joint physical custody
or, barring that, increased visitation, and the superior court had slowly but
consistently increased the time the children spent at their father’s residence. The
court found that both parties were “good enough” parents to their children. There
is nothing to indicate that the order transferring primary physical custody of the
children to the father if the mother relocated was issued to coerce the mother into
abandoning her plans to move.
The mother places great emphasis on the superior court’s finding that she
was not acting in “bad faith.” The father contends that the “bad faith test”
announced in Burgess “is generally unworkable.” We discussed good faith and
bad faith in two footnotes in our opinion in Burgess.
In rejecting the argument that a parent who wishes to change the residence
of a child bears the burden of proving the move is “necessary,” we noted that such
a rule would encourage costly litigation and would “require the trial courts to
‘micromanage’ family decisionmaking by second-guessing reasons for everyday
decisions about career and family.” (Burgess, supra, 13 Cal.4th at p. 36.) In a
footnote, we observed that “the parties continue to dispute whether the mother’s
change of employment was merely a ‘lateral’ move or was ‘career enhancing.’
The point is immaterial. Once the trial court determined that the mother did not
relocate in order to frustrate the father’s contact with the minor children, but did so
for sound ‘good faith’ reasons, it was not required to inquire further into the
wisdom of her inherently subjective decisionmaking.” (Id. at p. 36, fn. 5.)
We then stated that a decision to change a child’s residence ordinarily does
not reflect upon the parent’s suitability to retain primary physical custody. We
pointed out in another footnote, however: “An obvious exception is a custodial
30
parent’s decision to relocate simply to frustrate the noncustodial parent’s contact
with the minor children. . . . Even 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 children’s best interest. [Citations.]” (Burgess, supra,
13 Cal.4th at p. 36, fn. 6.)
We referenced these discussions of good faith and bad faith in our
formulation of the rule: “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.)
The Courts of Appeal have correctly applied these rules, but in one
published decision the Court of Appeal overstated the importance of an absence of
bad faith.
In In re Marriage of Bryant, supra, 91 Cal.App.4th 789, the superior court
awarded primary physical custody to the mother who intended to move with the
children to New Mexico to be with her family. A custody evaluation revealed that
the mother had been the “primary parent,” having had “a greater level of
involvement in the children’s lives” than the father and that it would be
“detrimental to the children to make a ‘radical shift’ to [the father] as the primary
parent.” (Id. at p. 792.) The evaluator saw no reason to believe that the move
would end the children’s relationship with their father. The superior court found
that the mother “was not motivated to move by bad faith” and had not
“unreasonably interfered with [the father’s] visitation with the children.” (Ibid.)
The Court of Appeal affirmed, correctly noting that “the trial court has
‘ “the widest discretion to choose a parenting plan that is in the best interest of the
31
child.” ’ [Citation.] This requires the court to consider all the circumstances.” (In
re Marriage of Bryant, supra, 91 Cal.App.4th 789, 793.) But the Court of Appeal
went on to overstate the importance of the superior court’s finding that the mother
was not acting in bad faith, holding that that once the superior court found that the
mother was not acting in bad faith, “[n]o further inquiry [into the reasons for the
proposed move] was necessary or appropriate.” (Id. at p. 794.) Rejecting the
father’s contention that the court should “consider the reason for the move in light
of the circumstances of the case,” the Court of Appeal stated: “except to show that
the move is not in bad faith, the reason is irrelevant.” (Id. at p. 795.)4
This is not what we said in Burgess; we said simply that a finding that a
reason for the proposed move constitutes bad faith “may be relevant” in
determining custody arrangements. (Burgess, supra, 13 Cal.4th at p. 36, fn. 6.)
While we noted that the court need not evaluate the wisdom of the custodial
parent’s decisionmaking (id. at p. 36, fn. 5), we did not say that the reasons for a
proposed move are irrelevant if the custodial parent is acting in good faith.
Absolute concepts of good faith versus bad faith often are difficult to apply
because human beings may act for a complex variety of sometimes conflicting
motives. As the superior court in the present case observed after finding that the
mother was not acting in bad faith because she had legitimate reasons for the move
4
In Cassady v. Signorelli, supra, 49 Cal.App.4th 55, the Court of Appeal
commented on the wisdom of the mother’s proposal to move with her child to
Florida to pursue a career as a parapsychologist, referring to the “mother’s
somewhat whimsical plans,” but it is clear from a full reading of the opinion that
the appellate court affirmed the superior court’s denial of the mother’s request to
move the child’s residence because it agreed that the mother was not seriously
seeking employment as a parapsychologist and “simply wishe[d] to get away from
father by moving elsewhere.” (Id. at p. 60.) Although the Court of Appeal did not
use the term “bad faith,” it concluded that the mother’s proposed move was “an
apparent pretext to defeat visitation.” (Id. at p. 61.)
32
and was not acting for the specific purpose of limiting the father’s contact with his
children: “I think it’s far more subtle than that . . . .” As Dr. Stahl stated in his
evaluation: “On the surface, the reasons for the move are clear. [The mother] has
always wanted to move to Ohio to be closer to her sister and family. . . . [Her
husband] has received a good job opportunity in Cleveland, which he has taken.
Their economic standard of living, and the inherent quality of life, will improve
under such circumstances. All of these are reasonable reasons to make the move.
[¶] Underneath, however, it has always appeared that [the mother] has wanted to
move so that she can remove herself and take the boys from the day-to-day
interactions with [the father]. She has difficulty dealing with him and prefers to
have as little communication with him as possible.”
Even 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.5
The foregoing cases, many of which involve heart-wrenching
circumstances, remind us that this area of law is not amenable to inflexible rules.
Rather, we must permit our superior court judges — guided by statute and the
principles we announced in Burgess and affirm in the present case — to exercise
their discretion to fashion orders that best serve the interests of the children in the
5
We have no occasion in this case to consider circumstances in which a
reason for a proposed move is to minimize contact with a noncustodial parent who
has engaged in a pattern of abuse of the custodial parent or the children or who has
a substance abuse problem.
33
cases before them. Among the factors that the court ordinarily should consider
when deciding whether to modify a custody order in light of the custodial parent’s
proposal to change the residence of the child are the following: 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 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.
III. DISPOSITION
The judgment of the Court of Appeal is reversed and the matter is
remanded to that court with directions to affirm the superior court’s postjudgment
order transferring custody of the children to the father if the mother moves to
Ohio. On remand, the superior court should consider the views expressed in this
opinion and may consider the parties’ present circumstances in issuing any further
custody and visitation order.
MORENO, J.
WE CONCUR: GEORGE, C. J.
BAXTER,
J.
WERDEGAR,
J.
CHIN,
J.
BROWN,
J.
34
DISSENTING OPINION BY KENNARD, J.
A mother who had been the primary caretaker of her two children since
their birth, and who had never violated the trial court’s visitation orders, wanted to
provide a better life for her children by moving with them to another state where
she had relatives and where her new husband had accepted a better paying job.
Concerned that his tenuous relationship with the children would be weakened, the
children’s father objected. After a hearing, the trial court ordered that custody of
the children be transferred to the father in the event the mother moved. The
majority holds the trial court did not abuse its discretion in so ruling. I disagree.
When it explained its ruling, the trial court said that moving the children to
another state could damage the children’s relationship with their father, but the
court never mentioned the potential harm to the children from losing their mother
as their primary caretaker, despite undisputed evidence that this harm would be
significant. The majority acknowledges that the trial court was required to
consider this detriment—indeed it acknowledges “ ‘the paramount need for
continuity and stability in custody arrangements’ ” (maj. opn., ante, at p. 22, italics
added)—but it assumes the trial court adequately considered this point.
In a matter of this importance, involving the custody and welfare of minor
children, a reviewing court should not make such a speculative assumption. When
a trial court’s explanation for exercising its discretion in a particular way does not
mention a critical matter that the court was bound to consider, and does not
accurately state the controlling legal standard, a reviewing court cannot simply
1
ignore these omissions. When, as here, the appellate record raises substantial
doubts that the trial court applied the proper legal principles and policies that
should have guided its decision, reversal is required.
I
In May 1996, Susan Navarro (the mother) petitioned the superior court to
dissolve her marriage to Gary LaMusga (the father) and to obtain custody of their
two young children. The father requested joint legal and physical custody.
Pending final determination of the custody issue, the children remained in the
family home with the mother, and the father established his own separate
residence. The court appointed Philip Stahl, Ph.D., a psychologist, to conduct a
custody evaluation. Pending this evaluation, the parties agreed to a visitation
schedule for the father.
During the initial custody evaluation, the mother told Stahl she wanted to
move with the children to Ohio, where she had grown up, to be closer to her
relatives and to take advantage of a lower cost of living. Stahl advised against the
move because of the children’s ages (then four and two) and their need to establish
a stronger relationship with their father before relocating. Accepting this
recommendation, the mother voluntarily postponed her plans.
In December 1996, the trial court awarded primary physical custody to the
mother, with continued visitation for the father. Over the next four years, the
mother obeyed all court orders for visitation and frequently stipulated to increases
in the father’s visitation time with the children. During this time, both parties
remarried. The mother married Todd Navarro and they had a daughter, Aisley.
The father’s new wife had a daughter from her previous marriage.
In April 1999, the mother and the father stipulated to a second evaluation
by Stahl to determine how the children were doing, whether any change in the
custody timeshare was appropriate, and whether counseling for the children or the
2
parties was indicated. Stahl’s report, submitted in February 2001, expressed the
view that although the children had a good relationship with the mother, their
primary caretaker, they did not get along well with the father. In Stahl’s opinion,
the children’s difficulties with the father were partly the mother’s fault. Although
she was not intentionally subverting the relationship, Stahl thought the mother was
unconsciously contributing to the children’s alienation from their father by telling
them too much about her disputes with the father and by overindulging them when
they expressed negative emotions about the father. Stahl also placed part of the
blame on the father, observing that he “is somewhat self-centered and doesn’t
seem to deal with the boys’ feelings that well” and that “he is a bit detached from
them and has a hard time interacting with them when they are with him, even
though he tries reasonably well.”
To remedy this situation, Stahl suggested having the children spend fewer
but longer blocks of time with their father during the school year, and equal blocks
of time during holidays and during the summer. He also recommended that all
disputes be referred to mediation “so that [the parents] can learn problem solving
skills and learn to deal with disputes away from their children,” and so that they
“learn to disengage from their conflict by trying to parallel parent the boys.” He
explained: “With parallel parenting, each parent will strive to do the best job of
parenting the boys during the time they are in their respective care, and relinquish
the boys to the other parent during the time they are in the other parent’s care.”
In February 2001, the mother requested a modification of the custody order
by allowing her to relocate with the boys to Ohio, where her new husband had
obtained a better paying job. In March 2001, the trial court ordered a focused
evaluation on the mother’s relocation request from Stahl. In a supplemental
report, submitted in June 2001, Stahl noted that if the mother moved with the
children to Ohio, “[t]heir economic standard of living, and the inherent quality of
3
life, will improve . . . .” He also acknowledged that ordering a custody change to
the father would have a significant detrimental effect on the children: “They have
been in the primary care of their mother since their parents’ divorce and they will
likely have a significant loss [if] she moves without them. They also have a very
close relationship with their sister, Aisley, as well as with Todd, and they will feel
those losses as well. Third, they certainly have their own desire to move. . . . If
they don’t move, they’re likely to feel that their wishes aren’t being heard. . . . On
top of that, they’re likely to blame their dad, potentially increasing their rejection
of their dad if forced to stay in California.” Stahl also expressed concern,
however, that a move to Ohio could further weaken the children’s relationship
with the father. Stahl characterized this relationship as “tenuous at best.”
At an August 2001 hearing, the trial court denied the mother’s request to
have her sons move with her, and it ordered a transfer of custody to the father if
the mother relocated. The court said it was making this order “to reinforce what is
now a tenuous and somewhat detached relationship with the boys and their
father.” In explaining its ruling, the court never mentioned the detriment that the
boys were likely to suffer in the event of a custody change from the mother to the
father.
The Court of Appeal reversed, holding that the trial court had erred by not
considering the detriment to the children that would result from a change in
custody.
This court granted review.
II
A parent with custody of minor children has a “presumptive right” to
change the children’s residence. (In re Marriage of Burgess (1996) 13 Cal.4th 25,
32, 38; see also Fam. Code, § 7501.) A noncustodial parent opposing such a
change of residence bears the initial burden of showing that the move will cause
4
some detriment to the children. (In re Marriage of Burgess, supra, at p. 37.)
Once this showing of detriment has been made, the trial court must then weigh the
likely effects on the child’s welfare from moving with the custodial parent, against
the likely effects from a change in custody. (Id. at pp. 38-39.) Only if the child’s
interests are better served by changing custody than by relocating with the
custodial parent may a court order custody transferred to the other parent. (Ibid.)
Here, the trial court’s explanation for its ruling shows that it properly
considered how relocation to Ohio might detrimentally affect the children—
including the impact on their tenuous relationship with their father. But the trial
court was also required to weigh this detriment against the detriment that would
result from removing the boys from the mother’s custody. This the court did not
do. In its statement of reasons, the court said: “So I don’t think that I have any
real question as to the qualifications or competence of either parent, that is not the
issue before me. The issue is the effect on these children of relocating, and the
effect of the relationship with their father if they are permitted to relocate.”
(Italics added.) But the effect of the relocation on the children’s relationship with
the father was not the issue before the court. Rather, it was just one of the
potential detriments shown by the evidence that the trial court was required to
consider. Equally important was the potential detriment from disrupting the
existing custodial arrangement by transferring custody from the mother to the
father.
This court has stressed that the “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.” (In re
Marriage of Burgess, supra, 13 Cal.4th at pp. 32-33.) Here, the trial court’s
5
explanation for its ruling provides no assurance that the trial court gave any weight
to the importance of continuity and stability in custody arrangements.
The trial court’s ruling on this custody issue is reviewed for abuse of
discretion. (In re Marriage of Burgess, supra, 13 Cal.4th at p. 32) “The courts
have never ascribed to judicial discretion a potential without restraint.” (People v.
Russel (1968) 69 Cal.2d 187, 194.) Rather, “all exercises of legal discretion must
be grounded in reasoned judgment and guided by legal principles and policies
appropriate to the particular matter at issue.” (Id. at p. 195; accord, People v.
Superior Court (Alvarez) (1997) 14 Cal.4th 968, 977.) Thus, a trial court abuses
its discretion whenever it applies the wrong legal standard to the issue at hand.
(Linder v. Thrifty Oil Co. (2000) 23 Cal.4th 429, 435-436 [a discretionary order
based upon improper criteria or incorrect assumptions must be reversed]; In re
Carmaleta B. (1978) 21 Cal.3d 482, 496 [“discretion can only be truly exercised if
there is no misconception by the trial court as to the legal basis for its action”].) It
follows that a reviewing court must examine the trial court’s stated reasons for an
exercise of discretion to determine whether those reasons reflect a correct
understanding of the relevant legal standards and principles. (See, e.g., Linder v.
Thrifty Oil Co., supra, 23 Cal.4th 429.)
Concluding that the trial court did not abuse its discretion, the majority says
that “nothing in the record before us indicates that the superior court failed to
consider the children’s ‘interest in stable custodial and emotional ties’ with their
mother.” (Maj. opn., ante, at p. 22.) But it is equally true that nothing in the
record indicates that the court did consider this interest. The majority goes on to
state, “In future cases, courts would do well to state on the record that they have
considered this interest in stability, but the lack of such statement does not
constitute error and does not indicate that the court failed to properly discharge its
duties.” (Maj. opn., ante, at p. 23.) I disagree. In the absence of such a statement,
6
or some other evidence in the record showing that the trial court affirmatively
considered and weighed the required factors, I cannot conclude that the trial court
properly exercised its discretion.
III
Like the Court of Appeal, I conclude in this case that “[t]he [trial] court’s
remarks do not reflect a true ‘best interest’ of the child custody evaluation because
they do not give any weight to the presumption favoring continuation of the
existing custodial arrangement so that the stability and continuity of the child’s
environment is not disrupted.” Therefore, I would affirm the judgment of the
Court of Appeal reversing and remanding to the trial court.
KENNARD,
J.
7
See last page for addresses and telephone numbers for counsel who argued in Supreme Court.
Name of Opinion In re Marriage of LaMusga
__________________________________________________________________________________
Unpublished Opinion XXX NP opn. filed 5/10/02 - 1st Dist., Div. 5
Original Appeal
Original Proceeding
Review Granted
Rehearing Granted
__________________________________________________________________________________
Opinion No. S107355
Date Filed: April 29, 2004
__________________________________________________________________________________
Court: Superior
County: Contra Costa
Judge: Terence L. Bruiniers
__________________________________________________________________________________
Attorneys for Appellant:
Law Office of Kim M. Robinson, Kim M. Robinson and Eric H. Zagrans for Appellant.
Vicky L. Barker and Marci Fukuroda for California Women’s Law Center, California Women Lawyers,
Coalition for Family Equity, California Federation of Business and Professional Women, California
National Organization for Women, The Feminist Majority Foundation, Children Now, California Alliance
Against Domestic Violence, National Coalition Against Domestic Violence, National Network to End
Domestic Violence, San Francisco Women Lawyer’s Alliance, Queen’s Bench Bar Association of the San
Francisco Bay Area, Women Lawyers Association of Los Angeles, Lawyers Club of San Diego, Women
For:, National Council of Jewish Women/Los Angeles, Women’s Equal Rights Legal Defense and
Education Fund, Asian Pacific American Legal Center, Arizona Coalition Against Domestic Violence,
Iowa Coalition Against Domestic Violence, Minnesota Program Development Inc., New Jersey Coalition
for Battered Women and Pennsylvania Coalition Against Domestic Violence as Amici Curiae on behalf of
Appellant.
Law Offices of Joanne Schulman and Joanne Schulman for Margaret A. Gannon, Cheryl Sena, Carole
Cullum, Joanne Schulman, Deborah Appel, Patricia Wagner, Leslie Knight, Gloria Sandoval, Stand!
Against Domestic Violence, Roy F. Malahowski, Barbara Hart, Lynne Arrowsmith, Nina Balsam, Andrea
Farney, Diane Post and Anne Thorkelson as Amici Curiae on behalf of Appellant.
Law Offices of Tony J. Tanke and Tony J. Tanke for Judith S. Wallersten, Paulina F. Kernberg, Joyanna
Lee Silberg, Julia M. Lewis, John B. Sikorski and Stephanie Joan Dallam as Amici Curiae on behalf of
Appellant.
Carol S. Bruch, Scott Altman, Edward Imwinkelried and Mary Ann Mason for Herma Hill Kay, Grace
Ganz Blumberg, Carol S. Bruch, Janice E. Kosel, Frances Olsen, Joan Heifetz Hollinger, Mary Ann Mason,
D. Kelly Weisberg, Jan C. Costello, Sheila James Kuehl, John E. B. Myers, Lisa C. Ikemoto, Scott Altman
and Janet Bowermaster as Amici Curiae on behalf of Appellant.
1
Page 2 - counsel continued - S107355
Attorneys for Respondent:
Garrett C. Dailey and Steven A. Greenfield for Respondent.
Leanne Schlegel for Minors
Donald E. Eisenberg for Constance R. Ahrons, William G. Austin, Sanford L. Braver, James H. Bray, Dr.
David Demo, Robert Emery, Dr. William V. Fabricius, Dr. Michael Gottlieb, Dr. John Guidubaldi, Dr.
Joan B. Kelly, Marsha Kline Pruett, Dr. Michael E. Lamb, Dr Jay Lebow, Dr. Patrick McKenry, Dr. Kay
Pasley, Isolina Ricci, John W. Santrock, Dr. Richard A. Warshak, Sidney J. Brown, James R. Flens,
Michael A. Fraga, Lyn R. Greenberg, Dr. Neil S. Grossman, Leslye Hunter, Eva Baranoff McKenzie,
Nancy Williams Olesen, Gary R. Rick and Jan Tyler as Amici Curiae on behalf of Minors.
Leslie Ellen Shear for Association of Certified Family Law Specialists, Marjorie G. Fuller, Nancy Williams
Olesen, Pamela Panasiti Stettner, Michael E. Lamb, Dawn Gray, Joan B. Kelly, Lawrence E. Leone,
William G. Austin, Constance R. Ahrons, Harold J. Cohn, Sanford L. Braver, Frieda Gordon, James M.
Hallett, Sidney J. Brown, Lynette Berg Robe, Michael Gottlieb, Tammy-Lyn Gallerani, Richard A.
Warshak, Kenneth C. Cochrane, Neil S. Gossman, David R. Lane, Maureen Stubbs, Fred Norris, Dianna
Gould-Saltman, Carol Silbergeld, Susan Ratzkin, Jeffrey M. Lulow, Dale S. Frank, Leslye Hunter, Ronald
S. Granberg, James R. Flens, Rebekah A. Frye, Renée A. Cohen, Tracy Duell-Cazes, Marnee W. Milner,
Jacqueline Singer, Erica L. Hedlund, James Livingston, Josephine A. Fitzpatrick, Michael A. Fraga,
Timothy C. Wright, Avery Cooper, Lawrence W. Thorpe, Trevor C. Thorpe, Steven R. Liss, Mark J.
Warfel, John R. Schiller and Mary McNeil as Amici Curiae on behalf of Minors.
2
Counsel who argued in Supreme Court (not intended for publication with opinion):
Tony J. Tanke
Law Offices of Tony J. Tanke
1949 5th Street, Suite 101
Davis, CA 95616
(530) 758-4530
Garrett C. Dailey
2915 McClure Street
Oakland, CA 94609
(510) 465-3920
3
Opinion Information
| Date: | Docket Number: |
| Thu, 04/29/2004 | S107355 |
Parties
| 1 | Tanke, Tony J. (Pub/Depublication Requestor) Represented by Tony J. Tanke Attorney at Law 1949 5th Street, Suite 101 Davis, CA |
| 2 | Navarro, Susan Poston (Appellant) Represented by Kim M. Robinson Law Office of Kim M. Robinson 2938 Adeline Street Oakland, CA |
| 3 | Navarro, Susan Poston (Appellant) Represented by Eric H. Zagrans The Zagrans Law Firm Co., L.P.A. 5338 Meadow Lane Court Elyria, OH |
| 4 | Lamusga, Gary (Respondent) Represented by Garrett C. Dailey Attorney at Law 2915 McClure Street Oakland, CA |
| 5 | Lamusga, Gary (Respondent) Represented by Steven Allen Greenfield Attorney at Law 1806 Bonanza St Walnut Creek, CA |
| 6 | Susan And Gary Lamusga (Overview party) |
| 7 | U. C. Davis (Pub/Depublication Requestor) Represented by Carol S. Bruch UC Davis School of Law 400 MRAK Hall Drive Davis, CA |
| 8 | Kay, Herma Hill (Amicus curiae) Represented by Carol S. Bruch UC Davis School of Law 400 Mrak Hall Drive Davis, CA |
| 9 | California Womens Law Center (Amicus curiae) Represented by Marci Lani Fukuroda California Women's Law Center 3460 Wilshire Blvd, Suite 1102 Los Angeles, CA |
| 10 | California Women Lawyers (Amicus curiae) Represented by Marci Lani Fukuroda California Women's Law Center 3600 Wilshire Blvd #1800 Los Angeles, CA |
| 11 | Wallerstein, Judith (Amicus curiae) Represented by Tony J. Tanke Law Offices of Tony J. Tanke 1949 5th Street, Suite 101 Davis, CA |
| 12 | Gannon, Margaret A. (Amicus curiae) Represented by Joanne Schulman Attorney at Law 1390 Market St #818 San Francisco, CA |
| 13 | Shear, Leslie Ellen (Amicus curiae) Represented by Leslie Ellen Shear Attorney at Law 16830 Ventura Blvd., Suite 351 Encino, CA |
| 14 | Association Of Certified Family Law Specialists (Amicus curiae) Represented by Leslie Ellen Shear Attorney at Law 16830 Ventura Blvd #351 Encino, CA |
| 15 | Fuller, Marjorie G. (Amicus curiae) Represented by Leslie Ellen Shear Attorney at Law 16830 Ventura Blvd #351 Encino, CA |
| 16 | Warshak, Richard A. (Amicus curiae) Represented by Donald S. Eisenberg Attorney at Law 6700 E Pacific Coast Hwy., Suite 220 Long Beach, CA |
| 17 | Braver, Sanford L. (Amicus curiae) Represented by Donald S. Eisenberg Attorney at Law 6700 E Pac Coast Hwy #220 Long Beach, CA |
| 18 | Kelly, Joan B. (Amicus curiae) Represented by Donald S. Eisenberg Attorney at Law 6700 E Pac Coast Hwy #220 Long Beach, CA |
| 19 | Bray, James H. (Amicus curiae) Represented by Donald S. Eisenberg Attorney at Law 6700 E Pac Coast Hwy #220 Long Beach, CA |
| Disposition | |
| Apr 29 2004 | Opinion: Reversed |
| Dockets | |
| Jun 7 2002 | Request for publication filed (initial case entry) Tony J. Tanke [non-party] |
| Jun 7 2002 | Received letter from: CA1/5 dated 6/7/2002 transmitting requests for publication. [recommendation not mentioned] |
| Jun 7 2002 | Request for publication filed (another request pending) Kim M. Robinson and Eric H. Zagrans, on behalf of appellant Susan Navaro |
| Jun 7 2002 | Request for publication filed (another request pending) Carol S. Bruch, Professor Emerita, Research Professor of Law, UC Davis [non-party] |
| Jun 18 2002 | Petition for review filed Respondent Gary Lamusga |
| Jun 18 2002 | Record requested |
| Jun 28 2002 | Received Court of Appeal record 1-file jacket, briefs, 2-vols. appendix & 1-accordion folder |
| Jul 8 2002 | Answer to petition for review filed By counsel for appellant {Susan Poston Lamusga}. |
| Jul 29 2002 | Received letter from: counsel for appellant in response to letters in support of petition for review. |
| Aug 2 2002 | Received letter from: counsel for respondent in response to appellant's letter dated July 28, 2002. |
| Aug 6 2002 | Time extended to grant or deny review The time for granting or denying review in the above-entitled matter is hereby extended to and including September 16, 2002, or the date upon which review is either granted or denied. |
| Aug 28 2002 | Petition for Review Granted (civil case) Votes: George, CJ., Baxter, Werdegar, Chin, Brown and Moreno, JJ. |
| Sep 16 2002 | Motion to Dismiss filed By counsel for appellant {Susan Poston Lamusga}. |
| Sep 18 2002 | Opposition filed By counsel for respondent {Gary LaMusga} to motion to dismiss. |
| Sep 27 2002 | Request for extension of time filed To October 18, 2002, to file Respondent's Opening Brief on the Merits. |
| Oct 1 2002 | Extension of time granted To October 18, 2002 to file Respondent's Opening Brief on the Merits. |
| Oct 2 2002 | Motion to dismiss denied Appellant's "Request for Dismissal of Appeal" filed on September 16, 2002, is denied. Appellant's request for judicial notice filed on September 16, 2002, is granted. |
| Oct 18 2002 | Received: Respondent's {Gary Lamsga} Opening Brief on the Merits. |
| Oct 18 2002 | Application to file over-length brief filed Respondent {Gary Lamusga}. |
| Oct 18 2002 | Received: "Notice of Unavailability of Counsel" from counsel for respondent. |
| Oct 22 2002 | Opening brief on the merits filed With permission {Respondent {Gary Lamusga}. |
| Nov 7 2002 | Request for extension of time filed By counsel for appellant {Susan Poston Lamusga} asking until January 17, 2003 to file Appellant's Answer Brief on the Merits. |
| Nov 13 2002 | Extension of time granted To December 18, 2002 to file appellant's Opening Brief on the Merits. |
| Dec 11 2002 | Request for extension of time filed To January 17, 2003 to file appellant's Answer Brief on the Merits. |
| Dec 18 2002 | Extension of time granted To January 17, 2003 to file Appellant's Answer Brief on the Merits. |
| Jan 17 2003 | Answer brief on the merits filed By counsel for appellant {Susan Poston Navarro}. |
| Jan 17 2003 | Request for judicial notice filed (in non-AA proceeding) Appellant {Susan Poston Navarro}. |
| Feb 5 2003 | Request for extension of time filed To February 11, 2003, to file Respondent's Reply Brief on the Merits. |
| Feb 6 2003 | Extension of time granted To February 11, 2003 to file Respondent's Reply Brief on the Merits. |
| Feb 11 2003 | Received: Respondent's Reply Brief on the Merits. Brief is over the word limit. |
| Feb 18 2003 | Application to appear as counsel pro hac vice (granted case) as co-counsel for appellant filed by Eric H. Zagrans, The Zagrans Law Firm Co., L.P.A., 5338 Meadow Lane Court, Elyria, Ohio 44035-1469 (440)934-7000 Fax (440)934-7001. |
| Feb 18 2003 | Received: Application for leave to file reply brief on the merits longer than 4,200 words . [7,713 words] |
| Feb 21 2003 | Order filed Respondent's application for leave to file Reply Brief on the Merits longer than 4,200 words (7,713 words) is hereby granted. |
| Feb 21 2003 | Reply brief filed (case fully briefed) |
| Feb 25 2003 | Opposition filed By Respondent {Gary Lamusga} to application of Eric Zagrans to appear pro hac vice as co-counsel for appellant. |
| Mar 17 2003 | Request for extension of time filed AC Herma Hill Kay et al., asking for a 30-day extension to April 22, 2003 to file Application and Amicus Curiae Brief. |
| Mar 21 2003 | Request for extension of time filed AC Dr. Judith Wallerstein et al., asking for a 30-day extension to April 22, 2003 to file Application and AC Brief. |
| Mar 21 2003 | Received application to file Amicus Curiae Brief The California Women's Law Center, California Women Lawyers, Coalition for Family Equity, California Federation of Business & Professsional Women, California National Organization for Women, Feminist Majority Foundation, Children Now, California Alliance Against Domestic Violence, National Coalition Against Domestic Violence, et al., in support of Appellant {Susan Poston Navarro}. |
| Mar 24 2003 | Request for extension of time filed By AC Margaret A. Gannon et al., requesting a 21-day extension to April 14, 2003 to file Application and AC Brief. |
| Mar 24 2003 | Order filed The "Application for 30-day Extension to File Amici Curiae Brief" filed March 17, 2003, is denied without prejudice to the filing, on or before April 22, 2003, of an application to file an amici curiae brief that complies with Rule 29.1(f), including that the proposed brief accompany the appilcation. |
| Mar 27 2003 | Extension of time denied "The Application for 30-day Extension to file Amici Curiae Brief" filed March 21, 2003, is denied without prejudice to the filing, on or before April 22, 2003, of an application to file amici curiae brief that complies with rule 29.1(f), including that the proposed brief accompany the application. |
| Mar 27 2003 | Permission to file amicus curiae brief granted The application of the California Women's Law Center, California Women Lawyrs, Coalition for Family Equity, California Fedration of Business and Professional Women, California National Organization for Women, Feminist Majority Foundation, Children Now, California Alliance Against Domestic Violence, National Coalition Against Domestic Violence, et al., in support of appellant Susan Poston Navarro. Answer is due within twenty days. |
| Mar 27 2003 | Amicus Curiae Brief filed by: The California Women's Law Center, California Women Lawyers, Coalition for Family Equity, California Federation of Business and Professional Women, California National Organization for Women et al., in support of appellant Susan Poston Navarro. Answer is due within twenty days. |
| Mar 28 2003 | Extension of time denied "The Application for 21-day Extension to File Amici Curiae Brief" filed March 24, 2003, is denied without prejudice to the filing, on or before April 14, 2003, of an application to file an amici curiae brief that complies with rule 29.1(f), including that the proposed brief accompany the application. |
| Apr 1 2003 | Motion filed (in non-AA proceeding) Motion for leave to file Reply Declaration of Eric H. Zagrans in support of his application for admission to practice pro hac vice. |
| Apr 8 2003 | Filed: Reply declaration of Eric H. Zagrans in support of his application to appear pro hac vice. |
| Apr 14 2003 | Received application to file Amicus Curiae Brief Margaret A. Gannon, Cheryl Sena, Carole Cullum, Joanne Schulman, Deborah Appel, Patricia Wagner, Leslie Knight, Gloria Sandoval, Stand! Against Domestic Violence, Roy F. Malahowski, Barbara Hart, Lynne Arrowsmith, Nina Balsam, Andrea Farney, Dianne Post, Anne Thorkelson in support of Appellant Susan Poston Navarro. |
| Apr 16 2003 | Request for extension of time filed By Respondent asking until May 12, 2003 to file Respondent's Response to AC Brief of The California Women's Law Center et al., |
| Apr 17 2003 | Permission to file amicus curiae brief granted Margaret A. Gannon, Cheryl Sena, Carole Cullum, Joanne Schulman, Deborah Appel, Patricia Wagner, Leslie Knight, Gloria Sandoval, Stand! Against Domestic Violence, Roy F. Malahowski, Barbara Hart, Lynne Arrowsmith, Nina Balsam, Andrea Farney, Dianne Post, Anne Thorkelson in support of Appellant. Answer is due within twenty days. |
| Apr 17 2003 | Amicus Curiae Brief filed by: Margaret A. Gannon, Cheryl Sena, Carole Cullum, Joanne Schulman, Deborah Appel, Patricia Wagner, Leslie Knight, Gloria Sandoval, Stand! Against Domestic Violence, Roy F. Malahowski, Barbara Hart, Lynne Arrowsmith, Nina Balsam, Andrea Farney, Dianne Post, Anne Thorkelson in support of appellant. Answer due within twenty days. |
| Apr 17 2003 | Extension of time granted To May 12, 2003 to file Respondent's Response to AC Brief of The California Women's Law Center et al.,. |
| Apr 17 2003 | Request for extension of time filed By AC Herma Hill Kay asking until May 13, 2003 to file application and AC Brief. |
| Apr 18 2003 | Extension of time denied The "Application for Additional 21-day Period to File Amici Curiae Brief" filed April 17, 2003, is denied without prejudice to the filing, on or before May 13, 2003, of an application to file an amici curiae brief that complies with rule 29.1(f), including that the proposed brief accompany the application. |
| Apr 23 2003 | Application to appear as counsel pro hac vice denied Ohio Attorney Eric H. Zagrans' application. |
| May 7 2003 | Request for extension of time filed Amicus Curiae Herma Hill Kay et al., asking until May 21, 2003 to file Application and AC Brief. |
| May 12 2003 | Response to amicus curiae brief filed By counsel for respondent. Response to amici briefs of Margaret Gannon et al. and California Women's Law Center et al. |
| May 12 2003 | Received application to file Amicus Curiae Brief Judith S. Wallerstein, Ph.D., Paulina F. Kernberg, M.D., Joyanna Lee Silberg, Ph.D., Julia M. Lewis, Ph.D., John B. Sikorski, M.D. & Stephanie Joan Dallam, RN, MSN, FNP. |
| May 13 2003 | Received letter from: Atty Garrett Dailey re: notice of unavailability for any purpose whatsoever, including, but not limited to receiving notices of any kind, responding to ex parte applications, appearing in court, appearing at depositions, or responding to discovery. Dates unavailable are: 5/23/ - 5/30/03; 6/6 - 6/9/03, 8/21 - 8/25/03; and 12/12 - 12/19/03. |
| May 13 2003 | Order filed The "Application for Additional 8-day Period to File Amici Curiae Brief" filed May 7, 2003, is denied without prefudice to the filing, on or before May 21, 2003, of an application to file an amici curiae brief that complies with Rule 29.1(f), including that the proposed brief accompany the application. |
| May 19 2003 | Opposition filed By Respondent {Gary Lamusga} to the late application of Dr. Wallerstein et al., to file AC Brief. |
| May 22 2003 | Permission to file amicus curiae brief granted Of Judith S. Wallerstein, Ph.D., Paulina F. Krenberg, M.D., Joyanna Lee Silberg, Ph.D., Julia M. Lewis, Ph.D., John B. Sikorki, M.D., & Stephanie Joan Dallam, RN, MSN, FNP in support of Appellant. Answer is due within 20 days. |
| May 22 2003 | Amicus Curiae Brief filed by: Judith S. Wallerstein, Ph.D., et al. |
| May 22 2003 | Received application to file Amicus Curiae Brief Of Herma Hill Kay, Grace Ganz Blumberg, Carol S. Bruch, Janice Kosel, Frances Olsen, Joan Heifetz Hollinger, Mary Ann Mason, D. Kelly Wesiberg, Jan C. Costello, Sheila James Kuehl, John E.B. Myers, Lisa C. Ikemoto, Scott Altman, Janet Bowermaster in support of appellant. |
| May 27 2003 | Permission to file amicus curiae brief granted Herma Hill Kay, Grace Ganz Blumberg, Carol S. Bruch, Janice E. Kossel, Frances Olsen, Joan Heifetz Holinger, Mary Ann Mason, D. Kelly Weisberg, Jan C. Costello, Sheila James Kuehl, John E.B. Myers, Lisa C. Ikemoto, Scott Altman and Janet Bowermaster in support of Appellant. |
| May 27 2003 | Amicus Curiae Brief filed by: Herma Hill Kay et al., in support of Appellant. Answer is due within twenty days. |
| Jun 9 2003 | Received: Notice of Errata from counsel for AC Herma Hill Key et al., re AC Brief. |
| Jun 11 2003 | Request for extension of time filed By Respondent Gary Poston Lamusga asking until July 25, 2003 to file Respondent's Response to AC Briefs of Wallerstein & Hill. |
| Jun 13 2003 | Extension of time granted To July 25, 2003 to file Respondent's Gary Lamusga to AC Briefs of Judith Wallerstein et al., and Herma Hill Kay et al.,. |
| Jul 24 2003 | Filed: Appellant's "Objection to Submission and Filing of Untimely Amici Briefs and Declaration of Counsel". |
| Jul 25 2003 | Response to amicus curiae brief filed By Respondent {Gary Lamusga} to AC Brief of Judith Wallerstein et al., |
| Jul 25 2003 | Received: Respondent's response to AC Brief of Herma Kay Hill, Grace Ganza Blumberg & Carol Bruch. Brief exceeds the 14,000 words-limit. |
| Jul 29 2003 | Response to amicus curiae brief filed By respondent to AC Brief of Herma Kay Hill, Grace Ganz Blumberg, Carol Bruch et al., Filed with permission. |
| Jul 29 2003 | Motion filed (in non-AA proceeding) Motion by counsel for appellant {Susan Poston Navarro} to strike untimely & unauthorized AC Briefs of Leslie E. Shear et al. and Robert Warshak et al., or alternatively request for a 60 day extension to file Response to AC Briefs. |
| Jul 31 2003 | Permission to file amicus curiae brief granted of Leslie Ellen Shear, CFLS; Association of Certified Family Law Specialists; Marjorie G. Fuller, J.D.; Nancy Williams Olesen, Ph.D., et al., |
| Jul 31 2003 | Amicus Curiae Brief filed by: Leslie Ellen Shear, CFLS; Association of Certified Family Law Specialists; Marjorie G. Fuller, J.D.; Nancy Williams Olsen, Ph.D., et al.,. Answer is due within twenty days. |
| Jul 31 2003 | Permission to file amicus curiae brief granted Richard A. Warshak, Ph.D., Sanford L. Braver, Ph.D., Joan B. Kelly, Ph.D., James H. Bray, Ph.D., William G. Asutin, Ph.D., et al.,. |
| Jul 31 2003 | Amicus Curiae Brief filed by: Richard A. Warshak, Ph.D., Sanford L. Braver, Ph.D., Joan B. Kelly, Ph.D., James H. Bray, Ph.D., William G. Austin, Ph.D., et al., Answer is due within twenty days. |
| Aug 4 2003 | Stay application filed (separate petition pending - civil) Respondent's motion to stay trial court proceedings set for hearing on August 8, 2003. |
| Aug 5 2003 | Telephone conversation with: Attorney Kim Robinson [ Mother ] -- Opposition to Stay due no later than 5:00 p.m., Wednesday, 8/6/2003. |
| Aug 6 2003 | Opposition filed Appellant's Opposition to Respondent's Motion to Stay Trial Court hearing set for August 8, 2003. |
| Aug 7 2003 | Opposition filed Minors' Opposition to Respondent's Motion to Stay Trial Court Proceedings Set for Hearing on August 8, 2003. |
| Aug 7 2003 | Application for stay denied Respondent's "Motion to Stay Trial Court Proceedings Set for Hearing on August 8, 2003" filed on August 4, 2003, is denied. |
| Aug 14 2003 | Received document entitled: Respondent's "Notice of Unavailability of Counsel" from October 24, 2003 to October 31, 2003. |
| Aug 18 2003 | Request for extension of time filed Appellant asking until November 17, 2003 to file Appellant's Responses to AC Brief of Leslie E. Shear et al., and by Richard A. Warshak, Ph.D, et al., |
| Aug 19 2003 | Request for judicial notice filed (in non-AA proceeding) (Legislative History of Family Code Sec. 7501.) by counsel for Respondent. |
| Aug 20 2003 | Extension of time granted To September 19, 2003 to file Appellant's Response to AC Briefs filed by Leslie E. Shear et al., and Richard A. Warshak, Ph.D et al., |
| Aug 27 2003 | Request Denied Appellant's motion to strike the amicus curiae briefs of Leslie Ellen Shear et. al, and Robert Warshak, Ph.D. is denied. Appellant's alternative request for a 60-day extension of time to file an answer to those briefs is denied as moot in light of our August 19, 2003 order granting a 30-day extension of time in response to appellant's subsequent request for a 90-day extension of time filed on August 18, 2003. Appellant alternative request to permit the filing of "authorized amici briefs on behalf of the minor children within the next 120 days" is denied. Werdegar, J., was absent and did not participate. |
| Sep 12 2003 | Request for extension of time filed By counsel for Appellant {Susan Poston Navarro} to October 17, 2003 to file Appellant's Response to AC Briefs filed by Leslie E. Shear et al., and by Richard A. Warshak, Ph.D. et al.,. |
| Sep 18 2003 | Extension of time granted To October 17, 2003 to file appellant's response to AC Briefs filed by Leslie E. Shear et al., and by Richard A. Warshal, Ph.D. No further extensions ot ime are contemplated. |
| Oct 15 2003 | Received: "Notice of Unavailability" from counsel for minor. |
| Oct 17 2003 | Received: Appellant's Consolidated Response to AC Briefs filed by Leslie Shear & Richard Warshak, Ph.D. |
| Oct 17 2003 | Request for judicial notice filed (in non-AA proceeding) By counsel for appellant {Susan Poston Navarro}. |
| Oct 21 2003 | Response to amicus curiae brief filed By appellant to AC Briefs filed by Leslie Shear and Richard Warshak, Ph.D. |
| Dec 23 2003 | Request for judicial notice granted Appellant's Second Request for Judicial Notice, filed on January 17, 2003, is granted. Appellant's Third Request for Judicial Notice, filed on October 17, 2003, is granted in part and denied in part, as follows. Appellant's request that we take judicial notice of the legislative history of Senate Bill 156, attached as exhibit 1, is granted. Appellant's request that we take judicial notice of the order following the hearing of August 8, 2003, attached as exhibit 2, is granted. Appellant's request that we take judicial notice of the preliminary report of minor's counsel, attached as exhibit 5, is granted. In all other respects, Appellant's Third Request for Judicial Notice is denied. Respondent's Motion Requesting Discretionary Judicial Notice, filed on August 19 2003, is granted in part and denied in part as follows. Respondent's request that we take judicial notice of an excerpt of former Civil Code section 213 from 1871, attached as document 2, is granted. Respondent's request that we take judicial notice of an excerpt of former Civil Code section 213 from 1872, attached as document 3, is granted. Respondent's request that we take judicial notice of an excerpt of the New York Civil Code from 1865, attached as document 4, is granted. Respondent's request that we take judicial notice of an excerpt of the New York Civil Code from 1862, attached as document 5, is granted. Respondent's request that we take judicial notice of the opinion in Wood v. Wood, attached as document 8, is granted. Respondent's request that we take judicial notice of chapter 162 of the Statutes of 1992, attached as document 9, is granted. Respondent's request that we take judicial notice of chapter 219 of the Statutes of 1993, attached as document 10, is granted. In all other respects, Respondent's Motion Requesting Discretionary Judicial Notice is denied. |
| Jan 2 2004 | Received letter from: Counsel for appellant {Susan Poston} requesting that oral argument take place in either San Francisco or Sacramento. |
| Jan 14 2004 | Case ordered on calendar Monday, February 9, 2004 @ 1:30pm (Sacramento session) |
| Feb 9 2004 | Cause argued and submitted |
| Feb 13 2004 | Received letter from: Notice of Unavailability of Counsel from Garrett C Daley -- vacation commences March 19, 2004 through March 26, 2004. |
| Apr 29 2004 | Opinion filed: Judgment reversed and the matter is remanded to that court with directions to affirm the superior court's postjudgment order transferring custody of the children to the father if the mother moves to Ohio. On remand, the superior court should consider the views expressed in this opinion and may consider the parties' present circumstances in issuing any further custody and visitation order. Majority Opinion by Moreno, J. ------ Joined by George, CJ., Baxter, Werdegar, Chin, Brown, JJ. Dissenting Opinion by Kennard, J. |
| May 6 2004 | Received: letter from counsel for Respondent re Notice of Unavailability from May 10, through May 18, 2004. |
| May 14 2004 | Rehearing petition filed By Appellant {Susan Poston Navarro}. |
| May 14 2004 | Time extended to consider modification or rehearing To July 28, 2004. |
| Jun 7 2004 | Answer to rehearing petition filed by counsel for Resp, Gary LaMusga (perm to file granted by the Court) |
| Jul 14 2004 | Rehearing denied Kennard, J., is of the opinion the petition should be granted. |
| Jul 14 2004 | Remittitur issued (civil case) |
| Jul 15 2004 | Received: Receipt for remittitur from 1 DCA Div. 5 |
| Briefs | |
| Oct 22 2002 | Opening brief on the merits filed |
| Jan 17 2003 | Answer brief on the merits filed |
| Feb 21 2003 | Reply brief filed (case fully briefed) |
| Mar 27 2003 | Amicus Curiae Brief filed by: |
| Apr 17 2003 | Amicus Curiae Brief filed by: |
| May 12 2003 | Response to amicus curiae brief filed |
| May 22 2003 | Amicus Curiae Brief filed by: |
| May 27 2003 | Amicus Curiae Brief filed by: |
| Jul 25 2003 | Response to amicus curiae brief filed |
| Jul 29 2003 | Response to amicus curiae brief filed |
| Jul 31 2003 | Amicus Curiae Brief filed by: |
| Jul 31 2003 | Amicus Curiae Brief filed by: |
| Oct 21 2003 | Response to amicus curiae brief filed |
