Case of the Month Archive

Birnbaum rule applies to both joint and sole physical custody orders . . .

In reversal, Fourth District holds that trial court erred by applying changed-circumstances standard where father’s OSC sought to modify parenting and visitation arrangement

In 2002, Bernardo Lucio pleaded guilty to one count of violating PC §647(a) [lewd or dissolute conduct in public], and he was placed on informal probation. On February 25, 2003, Bernardo pleaded guilty to one count of violating PC §314(1) [indecent exposure], and he was sentenced to 30 days in jail and placed on formal probation for three years. The court also ordered him to register as a sex offender under PC §290.

Meanwhile, his marriage was failing. When Bernardo and Amanda were divorced on August 23, 2004, their disso judgment awarded them joint legal custody of their two children (born in 1995 and 2001), with sole physical custody to Amanda, and monitored visitation for Bernardo for six hours every Sunday. Under a partial parenting agreement reached in mediation in May 2004, Bernardo’s goal was to have unmonitored visitation with the kids when his probation ended.

By the time his probation ended in March 2006, Bernardo had been in therapy for three years. In April 2006, Bernardo filed an OSC, seeking joint physical custody of the kids. At the hearing on July 18, the trial court strongly urged Bernardo, who was in pro per, to retain counsel because his case was “ ‘extremely complex . . . , extremely sensitive and extremely difficult,’ ” and he would need the help of an “ ‘experienced lawyer’ ” to present him as someone who is “ ‘not a danger to the children or the community.’ ” The court denied his OSC, and ordered Amanda’s attorney to prepare a formal order. Before that order was entered, Bernardo, represented by counsel, filed a second OSC, seeking modification to a “ ‘shared parenting plan with no monitored visits.’ ” In a supporting declaration, Bernardo asserted that he had completed probation “ ‘without incident,’ ” along with three years of therapy, and stated that Amanda was refusing to let him have any contact with the kids. He claimed that it was in the best interests of the children that they have contact with him, and he asked for unmonitored visitation on alternate weekends. On September 20, 2006, the court entered a formal order denying the first OSC, awarding sole legal custody of the kids to Amanda, and reinstating monitored visitation for Bernardo; he did not appeal that order.

On September 21, 2006, in support of the second OSC, Bernardo submitted a declaration from his former treating psychologist, Dr. Anthony Fiore, who opined that Bernardo was not a pedophile, posed no danger to his children, and should be awarded unmonitored visitation with them. On October 5, Amanda filed her own OSC, seeking an award of $5,000 for attorneys’ fees on the basis that Bernardo’s second OSC was just a rehash of the first. She also denied blame for Bernardo’s problems with visitation, asserting that they stemmed from the unwillingness of Family Assessment, Counseling & Education Services (FACES) to schedule visitation without an order reinstating monitored visitation for Bernardo. Amanda followed up with a response to the second OSC, in which she asked the court to continue visitation as ordered on September 20, 2006, citing Bernardo’s sex-offender status, his refusal to schedule visitation through FACES, and his failure to assert anything new in his second OSC. Bernardo submitted a report from another psychologist, Dr. Laura Brodie, who had interviewed him for one hour, and tested him for eight hours over a six-week period. The report stated that Dr. Brodie hadn’t identified any sexual deviancy, and concluded that Bernardo’s problem was impulse control, not pedophilia. In her opinion, three years of therapy had left Bernardo with insight into his problem, an ability to identify and avoid behavioral triggers, and recognition of the role that those behaviors played in his not being awarded unmonitored visitation.

At a hearing on April 24, 2007, the court dismissed the second OSC as premature, and asked the parties to filed updated I&E declarations prior to a rescheduled hearing on attorneys’ fees. In a formal order issued on June 4, the court found that Bernardo had failed to allege any changed circumstances since the dismissal of the first OSC, and dismissed/denied the second OSC. On July 11, the court issued an order awarding Amanda $5,000 in attorneys’ fees, finding that Fam C §3030 [no custody or unsupervised visitation for person registered as sex offender] made Bernardo’s chances of prevailing on the second OSC “ ‘rather slim,’ ” but he had brought it regardless.

Bernardo appealed, and the Fourth District reversed and remanded.

Where kids are concerned . . .
Bernardo contended that the trial court had erred by basing its denial of his OSC on the changed-circumstances rule; as he saw it, that rule doesn’t apply when a parent is asking to modify a visitation plan. The justices noted that in In re Marriage of Brown and Yana (2006) 37 Cal.4th 947, 38 Cal.Rptr.3d 610, 127 P.3d 28, 2006 CFLR 10229, 2006 FA 1228, the Supremes said that when trial courts make an initial custody order, they must focus on the best interests of the child, but when making subsequent orders, courts must emphasize “ ‘ “the paramount need for continuity and stability in custody arrange- ments.” ’ ” In light of that, the panel continued, the trial court is required to find that a “ ‘ “significant change of circumstances” ’ ” leads it to conclude that a modification is in the child’s best interests. [Citations omitted.] However, the justices explained, in cases such as In re Marriage of Birnbaum (1989) 211 Cal.App.3d 1508, 260 Cal.Rptr. 210, 1989 CFLR 4093, 1989 FA 385 and Enrique M. v. Angelina V. (2003) 121 Cal.App.4th 1371, 18 Cal.Rptr.3d 306, 2004 CFLR 9726, 2004 FA 1160, courts have held that the changed-circumstances rule does not apply where a parent seeks only to modify the parenting plan, not to change custody. The panel recognized that in those cases, the parents had a joint custody arrangement, while in this case, Amanda had sole custody. Nonetheless, the justices believed that the reasons for not applying the changed-circumstances rule were “equally applicable” to a sole custody arrangement, since a modification does not disrupt “ ‘established patterns of care and emotional bonds with the primary caretaker’ ” (quoting Brown and Yana ).

Just a little more time . . .
In this case, the panel noted, Bernardo hadn’t asked for a custody change in his second OSC; he’d only requested a change in the parenting plan that would permit him to have unmonitored visits with the kids for a longer time and on alternate weekends. Moreover, the modifications he sought did not constitute a de facto custody change. Therefore, the justices concluded, the trial court erred by applying the changed-circumstances rule instead of the best-interests test when it denied Bernardo’s second OSC. Moreover, the panel was unable to tell from the statements in the formal order what the lower court’s ruling might have been if it had applied the proper standard. Accordingly, the justices reversed the order and remanded for the trial court to apply the correct standard.

Don’t blame Bernardo . . .
The justices turned next to the assertion by Bernardo that the lower court had impermissibly awarded attorneys’ fees to Amanda as sanctions against him under Fam C §271. Amanda had countered that the fee award was justified because the court based it on Fam C §§2030 and 2032, under which fee awards are based on need and ability to pay. The panel found that the trial court had not specified the statutory basis for its fee award, instead stating its belief that Bernardo had persisted in filing a second OSC despite having a “ ‘rather slim’ ” chance of prevailing. The court also emphasized that when it advised Bernardo to retain counsel after denying his first OSC, that was not “ ‘an invitation to come back when he got a lawyer.’ ” Those statements led the justices to conclude that the trial court had awarded fees to Amanda as sanctions under Fam C §271. And since they had reversed the lower court’s denial of the second OSC, they felt that the fee award should be reversed as well. Moreover, the panel was not convinced that the circumstances of the filing of that OSC or the issues that it addressed warranted an award of fees as sanctions. Thus, the justices noted that the trial court was free to consider on remand whether a fee award was appropriate under Fam C §2030.