IN RE: the MARRIAGE OF Wendy A. and Paul D. BURGESS. Wendy A. BURGESS, Respondent, v. Paul D. BURGESS, Appellant.
Appellant Paul D. Burgess and respondent Wendy A. Burgess were married on September 8, 1987. In 1988 they had a son, Paul, and in 1989 a daughter, Jessica. In May of 1992 they separated. Respondent and the two children left the family home and lived in a nearby apartment. The following month respondent petitioned for dissolution of the marriage.
Appellant and respondent were both employed by the state Department of Corrections. Appellant was a correctional lieutenant and respondent was a corrections counselor. They both worked at the state prison in Tehachapi. Each earned a salary of more than $50,000 per year.
Appellant and respondent utilized family court mediation services to reach a partial agreement on June 29, 1992, with respect to custody of the two children. They agreed to share joint legal custody of the children, and agreed respondent would have sole physical custody. They agreed that appellant would have a liberal visitation schedule whereby he would have the children every Monday, Tuesday, and Wednesday from 9 a.m. to 1 p.m., and every Thursday at 9 a.m. through Saturday at 9 a.m. Appellant worked a 2 p.m. to 10 p.m. “third watch” at the Tehachapi prison and had Thursdays and Fridays off. Respondent worked a 7:30 a.m. to 4:30 p.m. shift, apparently with weekends off. The parties agreed in June 1992 that if appellant's work hours were to change, appellant would have the children on alternate weekends from 5 p.m. Friday through 5 p.m. Monday. They also agreed on arrangements for Christmas, Thanksgiving, Easter, Mother's Day, Father's Day, and the children's birthdays.
They could not agree, however, on what the custody and visitation arrangement would be if respondent left the county. Respondent wished to take a job transfer from the Tehachapi prison to a new prison in Lancaster, 40 miles from Tehachapi, and wanted to move to Lancaster with the children. Appellant did not want respondent to move the children to Lancaster.
The court held a hearing on this issue on February 1, 1993. Appellant and respondent testified.
Respondent testified she had committed herself to start working in Lancaster in April 1993, and this was a “career advancing type of move.” She said Lancaster would be a better location for the children also because in Lancaster there are more daycare facilities, private schools, and extra curricular activities for the children. She would also be closer to medical care for the children because she belonged to the Kaiser health plan, and there were Kaiser facilities in Lancaster but not in Tehachapi. Their son Paul had attended preschool in Tehachapi on Monday and Wednesday mornings from 8 a.m. to noon. Respondent wished to send Paul to kindergarten and Jessica to preschool at Kindercare in Lancaster the following fall. If respondent was not permitted to move to Lancaster, she would have both children attend school in Tehachapi.
Respondent also testified that the drive from the Tehachapi rental house she was living in to the Lancaster prison was exactly 40 miles and took about 40 minutes. She wished to commute from Tehachapi to Lancaster from April 1993 until Paul's June 6, 1993, preschool graduation, and then move to Lancaster.
Appellant testified about how the agreed upon visitation schedule in effect at that time enabled him to see the children for at least a portion of six of the seven calendar days. On Mondays, appellant would pick up Jessica at 9 a.m. He would pick up Paul at Paul's preschool at 12 noon, and then leave both children with a babysitter at about 12:30 p.m. when he left for work. On Tuesdays he would pick up both children at 9 a.m. and later leave them with the sitter at about 12:30 p.m. Paul's other preschool day was Wednesday, so the Wednesday schedule was just like the Monday schedule (9 to 12:30 with Jessica, and 12 noon to 12:30 with Paul). Thursdays and Fridays were his days off. He would pick the children up at 9 a.m. on Thursday and return them at 9 a.m. on Saturday. Every other Saturday he would have the children until 12 noon instead of 9 a.m. Only on Sunday did he not get to see the children at all. Appellant did not want his time with the children reduced. He was agreeable to keep the schedule then in effect until June 6, but feared that his children might feel abandoned by him if they moved to Lancaster. He testified he “might be able” to change his work schedule to first watch, in which case he would work 10 p.m. to 6 a.m., but that “[n]ot too many people want those hours.” The 7:30 a.m. to 4:30 p.m. job he had trained for in June was not available because it had been “shelved because of budget cuts and budget crisis.” Appellant testified that if respondent moved to Lancaster, he would like to be the primary caretaker for the children and would allow liberal visitation to respondent.
The court ruled on February 4, 1993, that the custody and visitation arrangement then in effect would remain in effect until Paul's June 1993 preschool graduation, and that “[u]pon Paul's graduation from preschool in June of 1993, the father will have visitation with the children, assuming the wife moves to Lancaster, on alternate weekends from 5:00 P.M. Friday through 5:00 P.M. Sunday with at least one three hour midweek visitation with suggested times being from 4:00 P.M. to 9:00 P.M.”
Appellant then moved for reconsideration of the court's February 4 order. The court heard this motion and took it under submission.
While the motion for reconsideration was under submission, appellant filed a motion seeking a change in child custody. Appellant's motion contended respondent constantly badgered and harassed him, that a plan of “equally shared time with fewer exchanges would be beneficial to us all,” and asked the court to order “50/50 shared custody of the children, with six weeks in my custody, then six weeks in her” custody, and with the noncustodial parent having visitation “on a mutually agreed upon schedule.”
While appellant's motion for change in custody was pending and before it was heard, the court on July 2 denied appellant's motion for reconsideration. The order denying reconsideration nevertheless informed appellant that appellant “can raise the issue that his ‘frequent and continuing contact’ with the two minors in question would be frustrated by the current order for custody and visitation should (respondent) relocate to Lancaster (Civ.Code, § 4600, subd. (a)) at the July 8, 1993, hearing of his pending motion for change of custody.” The July 8 hearing was then continued to July 22.
The July 22 hearing on appellant's motion for change of custody was essentially a rehash of the February 1 hearing. Just as with the February 1 hearing, respondent needed to wait for a ruling before making housing arrangements in Lancaster. School plans similarly could not be made until the parties knew whether the children would be moving to Lancaster or would instead remain in Tehachapi. In the meantime, the parties were still following essentially the same custody and visitation arrangement they had been utilizing for the previous year. The only difference was that appellant's days off had switched from Thursday and Friday to Wednesday and Thursday. He had the children Monday and Tuesday from 9 a.m. to 1 p.m. On Wednesdays he picked them up at 9 a.m. and kept them until Friday at 1 p.m. He therefore was seeing the children five days per week instead of six. Not surprisingly, he testified that having the children in Tehachapi would be “much more accommodating” for him.
Although his written motion had alleged harassment by respondent, he offered no testimony about any such harassment. After the court pointed out that a child could attend only one school even if the six-week periods of custody were adopted, appellant's attorney candidly stated “[i]f they don't stay in Tehachapi, it is impossible to do.” Appellant also testified he had attempted to change his shift to a day shift but had been unsuccessful.
Respondent offered the testimony of Correctional Captain Rob R. Bakman, who testified he oversaw personnel assignments at the Tehachapi prison. Captain Bakman testified that if appellant made every effort to attempt to get into a position where he had weekends off, then “it may or may not happen” and “[m]y guess would be the probability of it happening would outweigh the probability of it not happening.”
Respondent substantially reiterated her February 1 testimony about her reasons why she felt Lancaster would be a better environment for the children.
Appellant had been on the 2 p.m. to 10 p.m. shift since Jessica had been born. He expressed his desire for the court's order to “enable me to be as much a full-time father to my children as I have always desired to be․”
“THE COURT: If Ms. Burgess moved her residence to Lancaster or somewhere in that area other than Tehachapi, have you thought out how you could structure a viable visitation schedule with the children?
“THE WITNESS: It would significantly cut my time with the children because my days off, I would have to rent a hotel so I could continue to take them to school, kindergarten, and during the week when working I would spend an hour driving and an hour driving back so most of my time would be travelling.
“THE COURT: Overnight visitation?
“THE WITNESS: When they are in school—
“THE COURT: That is what I am saying.
“THE WITNESS: If we both live in the general vicinity it would enable—you know, traveling those distances. They can spend the nights at my house and I can get them ready for school and she can do the same if the school is located near the home. None of this is by my choice. I just want to be the father to my children.
“BY MR. CARTER:
“Q. If you have a situation now where the children were removed from Tehachapi to Lancaster you wouldn't be able to see them Saturday or Sunday except brief moments, is that right?
“Q. Because you have to be at work?
“Q. You wouldn't have them overnight because of school?
“Q. Instead of seeing your children on a daily basis do you think you would have anything that approaches how much time you spend with your children now?
“A. It would be an hour here, an hour there a week.
“Q. And that would include except during vacation any overnight time?
“A. I can bring them overnight like Saturday night but I have to work Saturday and Sunday night and I would only see them a couple hours in the morning.”
Respondent's testimony establishes that she has a day shift in Lancaster and that the children would be in school and day care while she was working. After work, she spends significant time with the children. Her working hours are 7:30 a.m. to 4:30 p.m. and she had been commuting to Lancaster from her Tehachapi residence. In questioning concerning the move, respondent stated:
“Q. Do you think that it would be beneficial to your children to only be able to see Paul on the weekend, instead of the daily regular contact that they have?
“A. For the kids, for the stability of the home, I think that every other weekend would be appropriate at this time until everybody is old enough to handle things and the kids are better able to take care of themself. I would like them to be able to see him as much as—much as the three of them can work it out.
“Q. To your convenience, because you want to move?
“A. Well, if that is the way that you need to work it, I suppose so. It has got to be convenient for all involved, but it is for their benefit.”
At the conclusion of the July 22 hearing, the court gave the parties until August 9 to submit written points and authorities. None were submitted.
On August 24, 1993, the court issued its ruling. The ruling stated in relevant part:
“The court finds that it is in the best interest of the minor children that the minors be permitted to move to Lancaster with the petitioner and that respondent be afforded liberal reasonable visitation. Due to the complexity of the work schedules of both of the parties, who are employed by the California Department of Corrections, the court requests that a four-way meeting be held by the parties and their attorneys within ten days from the date of this order to work out a mutually agreed upon visitation schedule. In the event that such a schedule cannot be worked out, then the parties are to attend mediation.
“The court suggests that during the summertimes and if school is on a year round basis, that respondent father be provided with ‘large block of time’ visitations.”
At the time of the August 24, 1993, ruling, the house respondent had been renting in Tehachapi had been sold, and respondent was back living in the house that had been the family residence during the marriage. The parties had been unable to sell the house. Respondent then apparently moved with the children to Lancaster.
The court's August 24 ruling was incorporated into a judgment that was entered on October 15, 1993, from which appellant appealed.
The court subsequently entered a judgment on reserved issues. This incorporated a visitation schedule giving appellant visitation from Wednesday night to Sunday night every other week. It also provided that he have the children for approximately a month and a half in the summer, with respondent to have them every other weekend during this month and a half period. The judgment on reserved issues also stated in part, and with apparent reference to the August 24, 1993, order: “The court has previously found that it is in the best interest of the minor children that [respondent] be allowed to change their residence to Lancaster and retain their physical custody.” Appellant also appealed from the judgment on reserved issues.
The parties have stipulated that the two appeals (F020504 and F021744) may be consolidated, and this court has so ordered.
Appellant contends the court abused its discretion in permitting respondent to move the children 40 miles away to Lancaster.
Family Code section 3040, subdivision (b) (formerly Civ.Code, § 4600, subd. (d)), empowers the court with “the widest discretion to choose a parenting plan that is in the best interest of the child.”
In In re Marriage of Carlson (1991) 229 Cal.App.3d 1330, 280 Cal.Rptr. 840, we explained the well-settled standard by which an appellate court reviews custody and visitation orders.
“The standards of appellate review of custody and visitation orders are settled. Reversal is justified only for abuse of discretion. [Citation.] The reviewing court must consider all the evidence, draw all reasonable inferences, and resolve all evidentiary conflicts, in a light most favorable to the trial court's ruling. (Citations.) The precise test is whether any rational trier of fact could conclude that the trial court order advanced the best interests of the child. [Citation.] We are required to uphold the ruling if it is correct on any basis, regardless of whether it is the ground relied upon by the trial judge. [Citation.]” (In re Marriage of Carlson, supra, 229 Cal.App.3d at p. 1337, 280 Cal.Rptr. 840.)
Appellant's contention, as we understand it, is that the court's order permitting respondent to move the children to Tehachapi deprived appellant of frequent and continuing contact with his children, and was therefore an abuse of discretion.
As we perceive the facts, the consequence of the trial court's ruling was that appellant's parenting participation was significantly altered. For him to see the children during the week was for all practical purposes unrealistic. Time on the weekends was effectively reduced to several hours in the mornings. Thus, the paternal role as a continuing influence on the children would depend on vacations.
We note at the outset that sometimes these consequences are the unalterable effects of divorce. They are not the most desirable effect or the effect that would be achieved in a perfect world. Rather, such disruptive consequences in the lives of parents and the lives of children are simply sometimes not realistically avoidable under the circumstances of the lives of the parents. Therefore, in seeking the best of a bad situation, the court utilizes standards consistent with its paramount concern—the best interests of the child.
The decision as to what is in the best interests of the child is necessarily “Solomon like” in nature but it is more than subjective judgment. It is not simply what the judge thinks is in the best interests of the child but rather a balancing of criteria in an attempt to further the objectives of the Family Code. These criteria are the factors the Legislature has expressly, although not exclusively, set out regarding what is to be considered.
Family Code section 3020 states:
“The Legislature finds and declares that it is the public policy of this state to assure minor children frequent and continuing contact with both parents after the parents have separated or dissolved their marriage, and to encourage parents to share the rights and responsibilities of child rearing in order to effect this policy, except where the contact would not be in the best interest of the child, as provided in Section 3011.”
Family Code section 3011 is entitled “Best interest of child; considerations” and provides in pertinent part:
“In making a determination of the best interest of the child in a proceeding described in Section 3021, the court shall, among any other factors it finds relevant, consider all of the following:
“(c) The nature and amount of contact with both parents.”
Within the context of the statute we construe “nature” as referring to the type or quality of the contact and amount as referring to the frequency and/or extent.
In demonstration of the emphasis to be placed on the provision of Family Code section 3011, Family Code section 3040 “Order of Preference” provides:
“(a) Custody should be granted in the following order of preference according to the best interest of the child as provided in Section 3011:
“(1) To both parents jointly ․ [i]n making an order granting custody to either parent, the court shall consider, among other factors, which parent is more likely to allow the child frequent and continuing contact with the non-custodial parent, subject to Section 3011․
“(b) This section establishes neither a preference nor a presumption for or against joint legal custody, joint physical custody, or sole custody, but allows the court and the family the widest discretion to choose a parenting plan that is in the best interest of the child.”
Therefore, while dependent upon the well considered discretion of the court, it is clear that the Legislature has concluded that the best interest of the child is most well served by a visitation arrangement that allows the greatest quantity and quality of parental contact with the child. However, as with all ideals, such a goal must shape itself to the circumstances of everyday life. Thus, the places where people live, the distance they are apart, the children's schooling and stability—all must be considered in effecting the legislative objective of serving the best interest of the child.
The case before us raises a difficult and fundamental question: to what extent are parents free to exercise choices that affect the nature and amount of contact with both parents? Can a parent who has primary physical custody move away from the location of the other parent to the extent that it diminishes the nature and amount of contact the child has with the noncustodial parent? If so, under what circumstances? Can such a move be for convenience or desire only or primarily, or must it be based on some reasonable conclusion of necessity?
In support of his argument, appellant calls our attention to In re Marriage of Carlson, supra, 229 Cal.App.3d 1330, 280 Cal.Rptr. 840; In re Marriage of McGinnis (1992) 7 Cal.App.4th 473, 9 Cal.Rptr.2d 182, and In re Marriage of Rosson (1986) 178 Cal.App.3d 1094, 224 Cal.Rptr. 250.
In Carlson the mother and father lived in California and dissolved their marriage there. The mother wished to relocate the children to Pennsylvania, where her family lived. The court refused to permit the mother to take the children to Pennsylvania. This court affirmed. We stated:
“The mother contends the trial court's restraining order was an abuse of discretion because the father failed to prove either (1) the move would jeopardize the children's health, safety, or education, or (2) the move was motivated by mother's desire to frustrate the father's visitation rights. In her estimation, the trial court did not enforce her absolute right to move the children. According to her, the court impermissibly focused on the practical limitations which the move would likely place upon the father's ability to exercise visitation. She claims the impairment of the father's visitation and his consequent loss of contact with the children were insufficient as a matter of law to justify the order.
“Many appellate cases decided before 1980 support mother's position. Relying for the most part on Civil Code section 213, they permitted the custodial parent to move a child to a different vicinity unless there was proof the move would be harmful to the child. Apparently the child's loss of contact with the noncustodial parent was not considered detrimental to the child, for these courts deemed the practical deprivation of the noncustodial parent's visitation to be ‘ “generally” insufficient to justify a restraint on the [custodial parent's] free movement.’ [Citations.] Under an exception to this rule, remedies were provided when removal was shown to be a vindictive act by the custodial parent calculated to deprive the noncustodial parent of visitation privileges. [Citation.]
“By contrast, in its few decisions evaluating family law orders which geographically restricted a minor's movement, the Supreme Court has employed solely a best interests analysis. It has not relied upon section 213 nor imposed an evidentiary burden upon the noncustodial parent to prove detriment. [Citations.]
“We see no need to conduct a painstaking review of the pre–1980 cases. Regardless of the source or justification for their holdings, the Legislature has overridden them. In 1979, section 4600 was amended to expressly declare it to be the policy of California ‘to assure minor children of frequent and continuing contact with both parents after the parents have separated or dissolved their marriage, and to encourage parents to share the rights and responsibilities of child rearing.’ (§ 4600, subd. (a).) In addition, in 1988 the Legislature added subdivision (m) to section 4600.5. It empowers the court to require notice to the noncustodial parent of the custodial parent's intent to change the child's residence. The notice must be given at least 45 days before the move takes place ‘so as to allow time for mediation of a new agreement concerning custody.’ (§ 4600.5, subd. (m).)
“The obvious purpose behind these statutory changes is to insure that every reasonable effort, under the circumstances of each case, will be made to preserve the child's relationship with both parents. [Citations.] Section 4600.5, subdivision (m)  appears to codify earlier cases which held that, in an appropriate situation, an increase in the distance between the child and the noncustodial parent will authorize an alteration in the terms of custody or visitation. For example, visitation may be modified to reflect practical realities when a noncustodial parent moves to a new location. [Citation.] Also, a move by a custodial parent may constitute a ‘significant change in circumstances' which justifies a transfer of custody to the noncustodial parent. [Citation.]
“We cannot disregard the effect and importance of the Legislature's modifications to sections 4600 [2 ] and 4600.5. The new provisions manifest a legislative determination that ‘regular and continuing contact’ is in the best interests of the child. [Citation.] A rule declaring the noncustodial parent's practical inability to maintain effective contact with the child to be irrelevant would annul this public policy. (229 Cal.App.3d at p. 1335–1336, 280 Cal.Rptr. 840, fns. omitted, emphasis added.)
In McGinnis the mother and father lived in Santa Barbara. The judgment of dissolution awarded the father visitation with the couple's three children from 4:30 p.m. Thursday until 4:30 p.m. on Sunday. On August 1, 1991, the mother, who had remarried, sent the father a letter informing him that on August 24, 1991, she would be moving from Santa Barbara to Arcadia. Her new husband had taken a job there. On August 14 the father filed a motion seeking to prevent the moving of the children to Arcadia. On August 23 the court heard the matter and the father requested that the status quo be maintained until an independent evaluation could be done. The matter was argued and submitted on declarations and without any live-witness testimony. The court refused to maintain the status quo and permitted the move to Arcadia. The appellate court reversed. It did not conclude that the move would necessarily be improper, but rather that the father had not been given adequate notice, time for meaningful mediation, and time to marshal evidence. It ordered the trial court to hold a new hearing and to determine what custody plan was in the best interests of the children. The trial court was directed to make this decision “only after allowing father the opportunity to obtain an outside evaluation.” (In re Marriage of McGinnis, supra, 7 Cal.App.4th at p. 481, 9 Cal.Rptr.2d 182.)
The court in McGinnis, supra, noted:
“A custody decision allowing a parent to remove the children out of the county is bound to interfere with the remaining parent's ability to have frequent and continuing contact with his or her children. (See Civ.Code, § 4600, subd. (a).) It is one of the most serious decisions a family law court is required to make. It should not be made in haste. The best interests of the children require that competing claims be considered in a calm, dispassionate manner and only after the parties have had an opportunity to be meaningfully heard.
“ ‘In deciding between competing parental claims to custody, the court must make an award “according to the best interests of the child”․ This test, established by statute, governs all custody proceedings. [Citation.]’ [Citations.] A change of custody is the exception, not the rule. It should not be undertaken unless it is ‘ “ ․ essential or expedient for the welfare of the child”․ [Citation.]’ [Citations.]
“The State of California has a strong public policy in ‘․ protecting stable custody arrangements.’ [Citation.] ‘ “It is well established that the courts are reluctant to order a change of custody and will not do so except for imperative reasons; that it is desirable that there be an end of litigation and undesirable to change the child's established mode of living.” [Citation.]’ [Citation.] We hold that these same rules apply to a ‘move away’ when a shared parenting arrangement is working.
“In such a situation, the burden of proof is upon the ‘move away’ parent to demonstrate that the move is in the best interests of the children, i.e. that it is ‘essential and expedient’ and for an ‘imperative reason.’ [Citations.] As indicated in In re Marriage of Rosson (1986) 178 Cal.App.3d 1094, 1107 [224 Cal.Rptr. 250], ‘․ the judge must consider ․ the effect of the move upon the children when [as here] an equally capable and involved parent remains in the community and offers the children the opportunity to remain where they have lived almost all of their lives.’ While the children here are young, they nevertheless have ties to Santa Barbara in terms of neighborhood friends, school, sports activities, dentists, medical doctors, teachers, etc.” (In re Marriage of McGinnis, supra, 7 Cal.App.4th at pp. 477–479, 9 Cal.Rptr.2d 182, emphasis added. See also In re Marriage of Battenburg (1994) 28 Cal.App.4th 1338, 33 Cal.Rptr.2d 871.)
In In re Marriage of Rosson, supra, 178 Cal.App.3d 1094, 224 Cal.Rptr. 250, the mother and father dissolved their marriage in 1977. The judgment of dissolution provided that the two children would reside with the mother, and that the father would have visitation on alternate weekends and on certain specified holidays and vacation days. Over the years, however, the parents had worked out a system whereby the children would stay at father's house on Mondays and Wednesdays in addition to the visitation times provided for in the judgment. The mother's job required commuting from Napa to Sacramento, San Francisco and Los Angeles, and the father had assumed substantial parenting responsibilities relating to the children's academic, athletic, social and religious activities. In 1984 the mother obtained a better job in San Francisco, but this required a “four-hour commute” each day. (Rosson, supra, 178 Cal.App.3d at p. 1099, 224 Cal.Rptr. 250.) She was unable to have breakfast, lunch or dinner with the children. She began to make plans to move herself and the children to San Francisco. The children had lived in Napa virtually all their lives. They were 13 and 10 years old. One child expressed a strong preference to stay in Napa, and the other voiced no preference. The father moved for a modification of the 1977 judgment to provide that the children would remain in Napa with him. The trial court granted the motion and the appellate court affirmed. The appellate court stated that “[a] court may modify a custody order where there has been a persuasive showing of substantially changed circumstances affecting the child.” (Id. at p. 1101, 224 Cal.Rptr. 250.) The court also stated that “[t]he court has broad discretion to find circumstances that have substantially changed, but the burden of showing a change sufficient to warrant modification is on the party seeking the change.” (Id. at p. 1102, 224 Cal.Rptr. 250.)
The reviewing court poignantly summarized the dilemma created by such cases as the one before us. “We are profoundly sympathetic with the dilemma confronting single parents such as Elise. In these days of each parent pursuing a career, advancement up the career ladder may require a parent to move to a different community or, indeed, to a different part of the country. A parent may often face an irreconcilable conflict between his or her own career goals and the needs of children. Such a parent must give serious consideration to moves which are best for career advancement, since careers continue long past the minority of children and are important for the financial and psychological well-being of the parent. No parent will ever choose to move from a community if he or she believes the move would be truly harmful to their children. However, a parent's perspective, influenced by personal and employment considerations, may see a move as best for children when, in fact, it may not be. Where parents cannot agree and the decision must be made in the courtroom, the judge must consider, as the judge did here, the effect of the move upon the children when an equally capable and involved parent remains in the community and offers the children the opportunity to remain where they have lived almost all of their lives.” (In re Marriage of Rosson, supra, 178 Cal.App.3d at p. 1107, 224 Cal.Rptr. 250.)
In In re Marriage of Selzer (1994) 29 Cal.App.4th 637, 34 Cal.Rptr.2d 824 the First District Court of Appeal questioned the language of McGinnis that the “best interests of the child be demonstrated by forcing the parent who wishes to move to prove that a change of residence is ‘essential and expedient’ and for an ‘imperative reason.’ ”
“Case law (including McGinnis itself) otherwise uniformly holds the issue of a change of residence is to be determined, in the discretion of the court, based upon the best interests of the child, not after a showing that a move is essential, expedient, or imperative. It would seemingly be almost impossible to show that a move was ‘essential’; always there would be a theoretical possibility that the custodial parent could simply forgo any employment, and perhaps seek welfare benefits in the community where he or she presently resides.” (In re Marriage of Selzer, supra, 29 Cal.App.4th at p. 644, 34 Cal.Rptr.2d 824.)
The Selzer court then referred to In re Marriage of Roe (1993) 18 Cal.App.4th 1483, 23 Cal.Rptr.2d 295 and stated:
“ ‘Civil Code section 4600, subdivision (d) [now recodified as Family Code section 3040, subdivision (b) (section 3040(b)) ] gives the court the “widest discretion” in choosing a parenting plan that promotes the best interest of the child. As to the suggestion in McGinnis, derived from dicta in cases involving change of custody, that when a custodial parent seeks to move the children he or she must prove the move is expedient, essential or imperative [citation], we reject this language as inconsistent with the statute as it tends to curb or limit the discretion of the trial court.’
“The Roe court held the moving parent does in fact bear a burden of proof, but it is the burden (properly derived from the standard of the best interests of the child) to show that the move was not only necessary to the custodial parent but would also be in the best interests of the child. (Roe, supra, 18 Cal.App.4th at pp. 1489–1490 [23 Cal.Rptr.2d 295].)” (Id. at pp. 644–645, 23 Cal.Rptr.2d 295. emphasis added.)
What we conclude from this survey of the pertinent cases is that assuming the court is called upon to evaluate a move, at the very least in determining whether a custodial parent should be allowed to take the children with him or her if he or she moves the court should determine whether the move is “necessary.”
First, what does the term “necessary” mean? The dictionary definition of necessary is, “1. that which cannot be dispensed with; essential; indispensable 2. resulting from necessity; inevitable ․ 3. a) that must be done; mandatory; not voluntary; required b) not free to choose; compelled by circumstances․” (Webster's New World Dict. (2d college ed. 1982) p. 950.)
While we perceive that the distinction between “necessary” as used in Selzer and “essential and expedient” as used in McGinnis is perhaps subtle, what we conclude is that neither the McGinnis court or the Selzer court required that there be absolutely no alternative. We determine that as to a custodial parent who wishes to move, the issue is whether not moving would impose an unreasonable hardship upon a career or upon the individual because of the length of the commute or some other discernible imposition that it is unreasonable to expect the individual to endure or because there is a discernible benefit that it is unreasonable to expect the individual to forego. Likewise, “necessary” may also be a consequence of the child's needs. It is in this sense that we define the term “necessary” as utilized in Selzer and, in our view, intended in McGinnis. Further, it is in this sense that we conclude the moving parent bears the burden of proof.
However, in our view, the issue of whether a move should even come under scrutiny does not arise unless there is some demonstration that the move realistically diminishes or impacts the nature and amount of contact the non-moving parent had maintained or can be expected to maintain.
In some instances, the court is reacting to an existent informal custody arrangement. In some instances the court has, as here, a temporary order in place and in some instances the court is being petitioned to change a permanent order. Regardless, the primary consideration is the best interest of the child. Where there has been a prior custody determination as opposed to a temporary order, the court uses the “changed circumstances” test.
“In deciding between competing parental claims to custody, the court must make an award ‘according to the best interests of the child’ (Civ.Code, § 4600, subd. (b)). This test, established by statute, governs all custody proceedings. (In re B.G. (1974) 11 Cal.3d 679, 695–696 [114 Cal.Rptr. 444, 523 P.2d 244].) The changed-circumstance rule is not a different test, devised to supplant the statutory test, but an adjunct to the best-interest test. It provides, in essence, 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. (In re Marriage of Carney (1979) 24 Cal.3d 725, 730–731 [157 Cal.Rptr. 383, 598 P.2d 36, 3 A.L.R.4th 1028]; Connolly v. Connolly (1963) 214 Cal.App.2d 433, 436 [29 Cal.Rptr. 616].)” (Burchard v. Garay (1986) 42 Cal.3d 531, 535, 229 Cal.Rptr. 800, 724 P.2d 486.)
However, where a prior custody determination has not been made the court looks to the child's current custodial and visitation status and arrangement. In Burchard, supra, the court addressed the relevant consideration regardless of how the established mode of custody was created. Responding to the argument that the court erred in failing to apply the changed circumstances rule where there had not been a prior custody determination, the court stated:
“Ana argues that the trial court erred in failing to apply the changed-circumstance rule in the present case. But on close review of her argument it becomes clear that Ana does not claim that there has been a prior custody determination, and that the court should have examined only events which occurred subsequent to that determination. Instead, she argues simply that because she has had custody for a significant period, she and William do not start on an equal basis; instead, he should have the burden of persuading the court that a change in custody is essential or expedient for the welfare of the child. We agree in substance with this argument: in view of the child's interest in stable custodial and emotional ties, custody lawfully acquired and maintained for a significant period will have the effect of compelling the noncustodial parent to assume the burden of persuading the trier of fact that a change is in the child's best interest. That effect, however, is different from the changed-circumstance rule, which not only changes the burden of persuasion but also limits the evidence cognizable by the court.
“We illustrate this distinction by reference to In re Marriage of Carney, supra, 24 Cal.3d 725 [157 Cal.Rptr. 383, 598 P.2d 36], the case Ana cites when she contends that the changed-circumstance rule can apply without a prior custody determination․
“․ Carney had nothing to say on the importance of protecting prior custody determinations by forbidding the courts from reconsidering the circumstances which led to those determinations. Instead, it spoke of the importance of protecting established modes of custody, however created, not by limiting the breadth of the evidence, but by requiring the noncustodial party to show that a change would be in the best interests of the child. Consequently, we do not read Carney as requiring use of a changed-circumstance test in cases where there has been no prior custody determination, but as one affirming the importance of stability in custody arrangements, placing the burden upon the person seeking to alter a long-established arrangement.
“The contrary view of Carney—that it extends the changed-circumstance rule to protect a ‘de facto’ custody—is in our opinion unsound, unworkable, and potentially harmful. It is unsound because, absent some prior determination of the child's best interests as of some past date, the courts have no warrant to disregard facts bearing upon that issue merely because such facts do not constitute changed circumstances. It is unworkable because, as we have explained, absent such a prior determination the courts have no established basis on which they can assess the significance of any change. And it is potentially harmful because it could compel the court to make an award inconsistent with the child's best interest.
“In most cases, of course, the changed-circumstance rule and the best-interest test produce the same result. When custody continues over a significant period, the child's need for continuity and stability assumes an increasingly important role. That need will often dictate the conclusion that maintenance of the current arrangement would be in the best interests of that child. But there will be occasional cases where it makes a difference. Consider, for example, a case in which a couple separate, and in the emotional turmoil of the separation the less suitable spouse takes custody of the child. In a later custody proceeding, the noncustodial parent may be able to prove that the custodial parent is unable to provide proper care, but not that his or her ability to do so has deteriorated since the separation. In such a case the changed-circumstance rule might require the court to confirm a custody not in the best interest of the child. Or, to take any other example, a child may be born out of wedlock to a woman who for some reason is not able to give it suitable care. The changed-circumstance rule would require the father, when he seeks custody, to prove not only that the mother is unsuitable, but that she has become more so since the baby's birth. In this example, the changed-circumstance rule again might require the court to endorse a custodial arrangement harmful to the child.” (Burchard v. Garay, supra, 42 Cal.3d at pp. 536–539, 229 Cal.Rptr. 800, 724 P.2d 486, fns. omitted.) 3
The primary criteria is the best interest of the child, which has been legislatively determined to have as a principle factor preserving and promoting the contact the child has with both parents. A move only comes into question if it detrimentally impacts this objective and that is dependent upon the nature of the relationship the parents have with the children: whether the proposed move by the parent with the child would substantially disrupt the objecting parent's “established patterns of care” of the child, and whether, as a result of such disruption, the quality of the relationship and the “emotional bonds” between the child and the objecting parent will be detrimentally impacted to a significant extent.
“We have frequently stressed, in this opinion and others, the importance of stability and continuity in the life of a child, and the harm that may result from disruption of established patterns of care and emotional bonds.” (Burchard, supra, 42 Cal.3d at p. 541, 229 Cal.Rptr. 800, 724 P.2d 486.)
Assuming it can be concluded that a move would detrimentally affect that relationship, then the trial court must look to the issue of necessity of the move. Assuming the move is necessary the trial court must balance what will be lost and/or gained if there is a transfer of custody. The fact that the nature and quantity of visitation will be reduced does not per se outweigh the impact on the children of a change of custody from the primary custodial parent. The court must weigh all factors in its final decision.4
Further, in order to show a detrimental impact on the parental relationship, one would have to demonstrate more than inconvenience. Again, the focus is on what is lost to the child—not whether it is less convenient to the parent. Separated custodial arrangements are simply not convenient by their nature. One would have to show not only that the distance created by the move realistically alters the ability to maintain the current visitation schedule but also that reasonable alternative schedules cannot be implemented that will continue the nature, quality and amount of contact the noncustodial parent has maintained or should be permitted to maintain. In effect, a showing would have to be made that the child will be detrimentally impacted by the diminished contact created by the move.
Therefore, while the burden may be on the moving custodial parent to show the move is necessary, we do not find that burden to arise until there is a demonstration of detrimental impact. The best interests of the children are not realistically raised in these cases unless such impact is demonstrated.
Respondent argues she was not attempting to change an established plan of custody and visitation. Respondent's desire to move the children to Lancaster was made known early on. Her petition for dissolution was filed in June of 1992. That very same month, the mediation report pointed out that the parties could not agree on “[v]isitation to the father if the mother leaves Kern County.” The visitation schedule utilized throughout the last half of 1992 and the first half of 1993 was in place while the issue of whether respondent would be permitted to move the children to Lancaster was litigated. Respondent did not simply move the children. She sought court permission. She endured the February 1, 1993, hearing, appellant's motion for reconsideration, and appellant's subsequent motion for change of custody. This process took a year.
Respondent argues the custody and visitation arrangement in effect throughout the last half of 1992 and the first half of 1993 was a “temporary” agreement. She contends it was clear the arrangement could not last, even if the children were to remain in Tehachapi, because Paul would be entering school in the fall of 1993 or thereabouts. He would be in school in the mornings, when appellant was free, and would be in bed at 10 p.m. when appellant ended his 2 p.m. to 10 p.m. watch. When Jessica reached school age the same would hold for her. This was the biggest obstacle in reaching a permanent custody and visitation arrangement.
Appellant argues the court was “incorrect” in concluding respondent had received promotions with the Department of Corrections. There was nothing incorrect about this conclusion. Her testimony was undisputed that she had worked for the Department since 1978, and that she had been an officer for seven years, a sergeant for three years, and a correctional counselor for almost three years. The next position up the ranks was “correctional counselor II.” She had performed that job on a temporary basis in Lancaster, and testified that the skills she was gaining at Lancaster “will help me with progressions in the future definitely.” Appellant points out respondent testified she was not on any “promotion list” at the time of the July 1993 hearing, but fails to mention respondent's clear record of promotions and her testimony that her temporary position as a correctional counselor II in Lancaster “will help me prepare for the next test.”
We should also point out that there is absolutely no suggestion in the record respondent sought the move to Lancaster for the purpose of making it more difficult for appellant to visit the children. Respondent testified she would be willing to occasionally drive the children to Tehachapi to relieve any hardship on appellant. Appellant himself did not contend that respondent's purpose was to deprive him of visitation. Rather, he contended this would be the effect of the move and that respondent should instead drive five days per week from Tehachapi to Lancaster to go to work.
In the circumstance of divorce, parents and children cannot live life like the intact family. Accommodations must be made to the reality of separated parental figures living at different locations. However, the law has stated its objective and primary consideration that the custodial circumstance give the children, as much as possible under the circumstances, the benefit of the influence of both parents. In other words, each parents' influence is important in the life of a child and helps shape the child.
Therefore, we conclude the more the circumstances diminish parental contact or diminish a parent's role in the life of a child, the less desirable the circumstances. Thus, to the extent such a plan is endorsed by the court it must spring from reasonable necessity created by the circumstances. To the extent that a parent exercises a choice affecting the goals of section 3011 by diminishing the nature and amount of contact, the court must evaluate the necessity of that choice in utilizing its discretion. A parent may be compelled to accept that the consequence may be diminution in visitation or loss of primary physical custody. In other words, while the parent may retain the right to move, the parent does not necessarily have the right to take the children along or insist the other parent accommodate the moving parent's choice. The court must evaluate whether the best interest of the child under the circumstances require forbidding the children leaving the locale if the parent chooses to move. In this situation, when the parent elects to move, while a parent may retain a right to make a lifestyle choice affecting himself/herself, the court must evaluate whether primary physical custody should be transferred to the noncustodial parent to serve the interests of Section 3011 and, effectively, the interests of the child. Children are not possessions. A custodial parent who chooses to move may be precluded from taking the children under certain circumstances. If that affects whether they move, it must be accepted that this is one of the consequences which comes with children. The choices parents make are frequently dependent upon the interests of the child rather than the personal preferences of the parent. That situation does not change because parents have divorced or separated.
Here, appellant argues that respondent's move was not based on reasonable necessity but rather was primarily a matter of convenience. He argues that given the circumstances of his job and her job that the court should have changed primary physical custody to him if respondent chose to move from Tehachapi to Lancaster.
After a searching review of this record, we conclude the evidence clearly demonstrates that given the circumstances of this case, respondent's move with the children would substantially diminish the nature and amount of contact with the children that appellant had maintained or sought to maintain. The fact the children would eventually be in school does not change that conclusion on the facts before us. For many parents, their time with their children is in the mornings or before work and after school. Regardless of the dispute about whether appellant might be able to change his shift, there was no showing that he had refused such efforts or that it was a realistic possibility at the time of the hearing. Just as respondent should not be expected to forego significant career advancement, neither should appellant be required to change his job or forego his career. Clearly, appellant's role in the lives of his children as a daily or constant influence would be significantly diminished. The record only supports the conclusion that appellant's participation was beneficial. We conclude the record before us is one of detrimental impact. Therefore, we conclude there was a credible basis for appellant to challenge respondent's move with the children.5
The reality here is that in moving, respondent primarily gained convenience. She maintained and, in fact, increased her time with the children. Appellant's efforts to be as much of a full-time parent as possible under the circumstances were significantly diminished. There is no question that as a presence in the lives of his children his role would be altered and, on these facts, altered detrimentally. Further, the proposed visitation schedule did not change this impact appreciably.6
Again, we are brought to a consideration of whether the move was necessary. Here, the length of the commute from Tehachapi to Lancaster cannot realistically be considered a hardship. While it may be inconvenient, it is an inconvenience shared by millions of Californians. We find no basis on the record before us to conclude the commute was a hardship on these facts rendering the move necessary as we have interpreted that term. We emphasize that our conclusion should not be construed as addressing respondent's decision to accept a job in Lancaster which the evidence amply supports as career enhancing. Rather, we are addressing the necessity of the move as it pertains to the length of the commute on the evidence before us.
Further, whether a move is necessary cannot and should not be separate from a consideration of whether it is in the best interest of the child. While it may be true that diminishing contact with a noncustodial parent is not preferred, it may be necessary because of the needs of the child. Arguably, a significant commute might create a hardship for a child. Certainly, health care and other social benefits accorded by a move are factors to be considered. However, the record before us does not support the conclusion that the facilities of Tehachapi deprived the children of substantial benefits necessary to their well-being. We do not mean to imply that greater social interaction or closer health care may not be preferable, but we do not find that the record here supports a conclusion that moving the children was necessary.
Therefore, we find that no showing of necessity was made in the face of a demonstrated showing of detrimental impact. The trial court must, therefore, reconsider its order permitting respondent to move the children and refusing a transfer of custody.
While we recognize that section 3040, subdivision (d) gives the trial court the “widest discretion” to frame an appropriate custody order, judicial discretion, though broad and inclusive, must be exercised “within the limits of fixed legal principles.” (Gossman v. Gossman (1942) 52 Cal.App.2d 184, 194, 126 P.2d 178.) The trial court's determination of the best interest of a child for purposes of entering a custody order in a case of this nature should, in our estimation, derive from an evaluation of those factors which are of consequence to the advancement of the policy of the law to “assure minor children frequent and continuing contact with both parents after the parents have separated or dissolved their marriage.” (§ 3020.) The decision about what is an appropriate custody order is not a process whereby the parties are invited to place before the bench whatever evidence they believe may be of some persuasive effect and the trial court is then allowed, in its “ ‘ungoverned will’ ” (Gossman v. Gossman, supra, 52 Cal.App.2d at p. 195, 126 P.2d 178), to pick through the evidence and select whatever may appear to it to be of significance. Under such a process, effective appellate review would be rendered virtually impossible. Rather, it is a process of balancing relevant factors to achieve a result molded not by the individual judge's personal views but by implementation of recognized legal criteria to the facts.
We view the legal criteria here to be an initial assessment of whether the move will impact significantly the existing pattern of care and adversely affect the nature and quality of the noncustodial parent's contact with the child. The burden is on the noncustodial non-moving parent to show this adverse impact.
Assuming such impact is shown, the trial court must determine whether the move is reasonably necessary. The burden of showing such necessity falls on the moving parent. Assuming the court concludes the move is necessary, the court then considers to what extent custodial arrangements or custody itself should be changed.
We are not confronted here with the most difficult issue family law judges are called upon to weigh—where a move is demonstrated as necessary and the trial court must resolve whether the benefit to the child in going with the moving parent outweighs the loss or diminution of contact with the non-moving parent. On the facts before us, we conclude no showing of necessity was made for purposes of the court's exercise of discretion.7
We conclude with a final observation. Courts cannot heal broken marriages and cannot shield children from the trauma of divorce. Likewise, parents must accept that divorce does not change their obligation or their right to attempt as much as possible to be relevant parental figures. If there is one thing that our society is learning it is that children need both parents—divorce does not change that.
The judgment is reversed and remanded for further proceedings consistent with this opinion.
I respectfully dissent.
To start, the majority's formulation of a decisional matrix requiring the trial court to evaluate whether the custodial parent's move lessens the noncustodial parent's contact with his children and whether the move is “necessary” has no application to the present case; the matter was still at the initial custody order stage, rather than before the trial court on modification of a permanent order.
Respondent requested an order to show cause as a part of the papers she filed with her petition for dissolution of marriage on June 19, 1992. The parties had separated on May 30, 1992. The “Stipulation and Order on Order to Show Cause,” dated July 14, 1992, describes itself as a “Temporary Order” pending further hearing or trial. The custody and visitation portion of the order provided for visitation in accordance with mediation agreement attached to it. Mediation had occurred on June 29, 1992. “Trial” of the case took place on February 1, 1993. Having taken the matter under submission, the court rendered its ruling on February 4, 1993, which included the provision that ultimately gives rise to this appeal: that “assuming [respondent] moves to Lancaster,” appellant would have visitation with the children “on alternate weekends from 5:00 P.M. Friday through 5:00 P.M. Sunday with at least one three hour midweek visitation with suggested times being from 4:00 P.M. to 9:00 P.M.”
The majority improperly gives evidentiary value to the visitation schedule appellant had enjoyed as a result of the July 14, 1992, temporary order in determining that his parental contact would be so substantially diminished that respondent had to demonstrate necessity for her move. Thus the majority is essentially placing the burden on respondent to show a change of circumstances as if this situation involved her requesting modification of a permanent order.1
“The change of circumstance rule as pronounced in Carney [In re Marriage of Carney (1979) 24 Cal.3d 725, 157 Cal.Rptr. 383, 598 P.2d 36] and explained in Speelman [Speelman v. Superior Court (1983) 152 Cal.App.3d 124, 199 Cal.Rptr. 784] has no applicability to a pendente lite stipulation or pretrial order or order to show cause. In those situations, the parties have just separated and they do not intend for their pendente lite stipulations or orders to be permanent. Indeed a review of the clerk's transcript in the instant case reveals all previous custody orders were made in contemplation of the issue being resolved at trial. The agreement entered into was for the purpose of seeing the parties through until the time of trial. It was not, as in Carney or Speelman, intended as permanent.” (In re Marriage of Lewin (1986) 186 Cal.App.3d 1482, 1487, 231 Cal.Rptr. 433.)
Our Supreme Court has noted that where “there is no prior determination[,] no preexisting circumstances to be compared to new circumstances[,] [t]he trial court has no alternative but to look at all the circumstances bearing upon the best interests of the child.” (Burchard v. Garay (1986) 42 Cal.3d 531, 534, 229 Cal.Rptr. 800, 724 P.2d 486.) The standard to be applied concerning a “move-away” circumstance raised prior to the court's making of its permanent order is the same standard as applies for making an initial custody determination—the best interest of the child. (Garbolino, Cal. Family Law Bench Manual (2d ed.1994) at p. 9–7.)
In determining what is in the best interest of the children, a trial court has “the widest discretion.” (Fam.Code, § 3040, subd. (d).) As acknowledged by the majority, the standard of our review is whether the trial court abused that discretion. I am satisfied there was evidence presented here that supports the court's exercise of discretion.
The evidence here showed that respondent initially moved with the children out of the family residence and into a small apartment in Tehachapi. Early on, she expressed her interest in making a job transfer to Lancaster, where a new prison was going to open, and relocating her residence there. The majority acknowledges respondent's proposed move was not for the purpose of reducing appellant's visitation and the move involved career advancement. Respondent testified, without objection, that Lancaster provided better medical care, day care, and educational facilities. Of particular note, she is on the state employee's Kaiser health plan; Kaiser has a facility in Lancaster, but none in Tehachapi.
Regarding any impact the move would have on the children's interest in having significant contact with appellant, the children would be only 40 minutes away from his home.2 Appellant testified driving to Lancaster was an “easy commute” for him. He drove there every other weekend to shop and visit his fiancée's brother. Additionally, respondent expressed her willingness to occasionally drive the children to Tehachapi. In terms of appellant's ability to have full-day and overnight visits with the children on weekends, Tehachapi prison's personnel officer testified that appellant probably would be granted weekends off if he fully pursued the issue.
Interestingly, the majority agrees the traveling time here is not a hardship; however, it utilizes this factor only as supportive of the position that if respondent wants to take a better job and remain the custodial parent, she is the one who must commute. However, would not forcing her to make the longer work commute tend to have a negative impact on the children? 3 Also, would the situation be any different if respondent had moved directly to Lancaster at the time of separation (assuming the job was available at an earlier date)? I am convinced the two situations require the same basic analysis of what is in the children's best interest. Certainly, whenever parents separate, the noncustodial parent suffers a significant loss of potential contact with the children. Here, respondent made the transition more gradual and should be no worse off in requesting the court's permission to move 40 minutes away from the former family residence than if she had made the move immediately.
In this day and age, custody sharing and visitation arrangements where both parents have full-time careers are difficult judgment calls. Reasonable minds may differ on what arrangement is best for the children and fairest to all parties. Here, the trial court conducted two hearings in an attempt to accommodate all parties as much as it could, and clearly had the best interest of the children in mind in fashioning its order. After carefully reviewing the situations of the parties, the court expanded (from its February 4, 1993, ruling) appellant's semiweekly visitation to include Wednesday night through Sunday night; during the summer months, the children would be with appellant 50 percent of the time. Such an order is not inconsistent with the policy objectives of Family Code section 3020 that the children have “frequent and continuing contact with both parents.” 4 In my view, the court did not abuse its discretion and the judgment should be affirmed.
1. See now Family Code section 3024, about which the Law Revision Commission Comment states: “Section 3024 continues former Civil Code Section 4600.5(m) without substantive change. Although former Civil Code Section 4600.5 related to joint custody, subdivision (m) of that section was not by its terms limited to a joint custody order. Accordingly, Section 3024 applies to any custody order, not only a joint custody order. See also Section 3131 (action by district attorney where child taken or detained in violation of custody order).” [23 Cal.L.Rev.Comm. Reports 1 (1993) ]
2. Present Family Code section 3020 contains the first paragraph of former Civil Code section 4600, subdivision (a) without substantive change. Civil Code section 4600, subdivision (a) states: “The Legislature finds and declares that it is the public policy of this state to assure minor children of frequent and continuing contact with both parents after the parents have separated or dissolved their marriage, and to encourage parents to share the rights and responsibilities of child rearing in order to effect this policy. [¶] In any proceeding where there is at issue the custody of a minor child, the court may, during the pendency of the proceeding or at any time thereafter, make such order for the custody of the child during minority as may seem necessary or proper. If a child is of sufficient age and capacity to reason so as to form an intelligent preference as to custody, the court shall consider and give due weight to the wishes of the child in making an award of custody or modification thereof. In determining the person or persons to whom custody shall be awarded under paragraph (2) or (3) of subdivision (b), the court shall consider and give due weight under Article 1 (commencing with Section 1500) of Chapter 1 of Part 2 of Division 4 of the Probate Code.”
3. In re Marriage of Lewin (1986) 186 Cal.App.3d 1482, 231 Cal.Rptr. 433. cited by the dissent, does not reach a contrary conclusion regarding its interpretation of Burchard. (See In re Marriage of Lewin, supra, 186 Cal.App.3d at p. 1488, 231 Cal.Rptr. 433.)
4. The dissent apparently concludes from our opinion that we would place the burden on the moving parent to show a change of circumstance because of diminished parental contact by the non-moving parent. Not so. The non-custodial parent must show that an established mode of custody is adversely affected or that the move would adversely affect an established pattern of parental participation in the child's upbringing before the issue of the move is addressed. While it is true this was a temporary custody situation, the situation prior to separation shows the same or greater parental participation by appellant.
5. The dissent seems to conclude some different result would occur if respondent had moved directly to Lancaster at the time of separation and contends the two situations “require the same basic analysis of what is in the child's best interest.” We are not required to decide whether this analytical approach would also apply had respondent moved directly to Lancaster at the time of separation because respondent did not do so. However, we note only that there appears to be nothing in the relevant provisions of the Family Code which would authorize a trial court to disregard the public policy expressed in section 3020 if it is called upon to make a custody order in such fait d' accompli circumstances.
6. We take issue with the dissent's apparent willingness to deem the public policy expressed in section 3020 to be satisfactorily served by entry of the “normal” visitation order referred to in the California Family Law Bench Manual. If anything, such a view tends to diminish the discretion of the trial court to frame an appropriate order that promotes the best interests of the child in the circumstances and derogates the public policy described in section 3020 to maximize the child's contact with both parents to the extent feasible.
7. The dissent argues that the commute time here is construed as not a “hardship” by the majority but contends that the commute might have a negative impact upon the children. We do not re-weigh the facts. There is no evidence before us of such an impact nor was it argued. We do not conclude such evidence would not be relevant or could not be considered upon further proceedings in this matter. The trial court may on remand consider any relevant circumstances which may have developed during the pendency of this appeal. (In re Marriage of Carney, supra, 24 Cal.3d at p. 741, 157 Cal.Rptr. 383, 598 P.2d 36; In re Marriage of McGinnis, supra, 7 Cal.App.4th at p. 481, 9 Cal.Rptr.2d 182.)
1. At footnote 4 of its opinion, the majority denies it places such a burden on respondent, saying it is the noncustodial parent who must first show an established pattern of parental participation is adversely affected. The distinction is illusory because the moment respondent moved out of the family residence, taking the children with her, appellant's parental participation was unquestionably adversely affected. While the majority acknowledges at one point that the “changed circumstance” test is limited to modification of permanent custody orders, it makes the determination of necessity for the move a prerequisite for a trial court even at the initial permanent custody hearing stage. I submit that the majority's insistence on a necessity evaluation in reality is a form of requiring proof of changed circumstances.
2. Compare this distance and time of travel with In re Marriage of Carlson (1991) 229 Cal.App.3d 1330, 280 Cal.Rptr. 840 (California to Pennsylvania), In re Marriage of Rosson (1986) 178 Cal.App.3d 1094, 224 Cal.Rptr. 250 (a two-hour trip from Napa to San Francisco), In re Marriage of McGinnis (1992) 7 Cal.App.4th 473, 9 Cal.Rptr.2d 182 (100 miles from Santa Barbara to Arcadia). See also In re Marriage of Roe (1993) 18 Cal.App.4th 1483, 23 Cal.Rptr.2d 295 (move from California to Alabama approved) and In re Marriage of Selzer (1994) 29 Cal.App.4th 637, 34 Cal.Rptr.2d 824 (two-hour move from Ukiah to Santa Rosa approved). The majority cites each of the above cases. In all of them, except McGinnis which was reversed for failure of notice, the trial court's exercise of discretion was affirmed by the Court of Appeal. Additionally, the majority's reliance on Roe and Selzer to establish that the trial court here must determine whether the move is necessary is misplaced because those two cases involved modification of permanent orders.
3. This comment does not reweigh the facts. Rather, this inference from the facts is warranted as supportive of the wide discretion afforded the trial judge in assessing the children's best interest.
4. While it is somewhat dubious to categorize a particular visitation schedule as exceeding the norm, I do note that the California Family Law Bench Manual (cited supra ) at page 9–6, describes “normal” visitation as alternate weekends plus half of the holidays and summer visitation. Here, the trial court appropriately “customized” the visitation to include two full weekdays, which not coincidentally had been appellant's regular days off at the time. This comparison demonstrates the flexibility exercised by the trial court, rather than does it suggest a rigid approach.
ARDAIZ, Presiding Justice.
DIBIASO, J., concurs.