| Reduced
contact with noncustodial parent is a factor that can
justify a custody change . . . |
| In reversal,
California Supreme Court majority (6-1) holds that noncustodial
parent who opposes custodial parent's move must show
that move would cause detriment to child, after which
trial court must evaluate all relevant factors to determine
whether it is in child's best interests to change custody |
In re
Marriage of LaMusga
(April 29, 2004) |
| California Supreme Court, S107355, 32 C4th
1072, 12 CR3d 356, 88 P3d 81, FIRST ALERT #F-2004-1143,
per Moreno, J (George, CJ, Baxter, Werdegar, Chin, Brown,
JJ, concurring; Kennard, J, dissenting). First District
Court of Appeal: reversed and remanded with directions.
For appellant-mother: Tony Tanke, CALS, (530) 758-4530.
For respondent-father: Garrett Dailey, CFLS, (510) 465-3920.
CFLP §L.138.60. |
Susan and Gary LaMusga (" la mooshay ")
were married in October 1988. Their son Garrett was born
May 5, 1992; his brother, Devlen, joined the family two years
later on the same day. Shortly after the boys' birthday in
1996, Susan filed a disso petition in which she asked for
sole physical custody of the kids, who were living with her
in the family home. In his response, Gary asked for joint
legal and physical custody. When the parents disagreed over
visitation, they stipulated to having a custody evaluation
done by a licensed psychologist, Dr. Philip Stahl. Meanwhile,
the trial court ordered, in accordance with the parties'
stip, that Gary would have the boys with him for four hours
on Wednesdays and seven hours on Sundays. Susan later reported
that the kids were detrimentally affected by spending time
with Gary; according to her, Garrett would become " `overly
aggressive, disorganized, unfocused, and . . . regress in
toilet training,' " while Devlen would " `develop
a facial tick, a stutter, and a squint.' "
On October 10, 1996, Dr. Stahl issued
a report in which he noted that there " `has been a
great deal of verbal hostility' " between Susan and
Gary, and that they admitted a total lack of communication
or trust with each other. Dr. Stahl observed that the strife
between them had, at times, reached the point of pushing
and shoving. Susan, he explained, believed that Gary's home
was unsafe, and that his care of the boys was inadequate
and unresponsive; she wanted them to spend less time with
him, not more. Complicating things further, Dr. Stahl continued,
was Susan's desire to move to Cleveland with the kids; Gary
opposed the move because he feared that he would " `end
up having no relationship with his boys whatsoever.' " Susan
and Gary, he reported, were " `good enough' " parents,
but their unrelenting conflict was the most significant problem
facing the children. That conflict, Dr. Stahl went on, would
be alleviated if Susan was allowed to move, but she had not
shown convincingly that she would ensure contact and visitation
between Gary and the boys once that took place. As it was,
the bond between Gary and his sons was strong, but the psychologist
feared that it would not stay that way, given the ages of
the boys and the distance between their current home and
Cleveland.
After a hearing on November 14, 1996,
the trial court awarded Susan and Gary joint legal custody,
with Susan to have primary physical custody. The court also
ordered a gradual increase in visitation for Gary over the
course of several months. On December 31, 1997, it entered
the parties' status-only disso judgment. In July 1998, the
parents stipulated to vacation visitation that gave Gary
custody of the kids for one week each in July and August,
scheduled a week for Susan in the same months, and retained
the existing schedule at all other times. In December 1998,
acting on Gary's OSC, the court set a holiday schedule for
visitation. Susan subsequently married Todd Navarro; she
gave birth to their daughter on September 16, 1999. Gary
remarried as well; his new spouse, Karin, had a daughter
from a prior marriage.
On February 13, 2001, Susan filed
an OSC, seeking an order permitting her to move with the
boys to Cleveland, where she had family and her husband had
been offered a higher-paying job. Along with the OSC, she
submitted a declaration in which she stated that Dr. Stahl
was doing a new evaluation regarding an increase in Gary's
visitation. Not surprisingly, Gary opposed the motion, and
asked the court to grant him primary custody if it allowed
the move. In his supporting declaration, Gary said that Susan's
ongoing attempts to alienate him from his sons could mean
that he would lose them forever if they moved. On February
26, 2001, Dr. Stahl filed a supplemental report that focused
not on Susan's proposed move, but on Gary's relationship
with the boys. The psychologist stated that the parents' " `high
conflict divorce' " was causing the kids to feel alienated
and to have mixed feelings toward their parents. The boys
were " `very critical' " of Gary, but mostly in " `rather
vague terms.' " They seemed to enjoy his company, however,
and to be affectionate with him. Susan appeared to be contributing
to their alienation from Gary, albeit unconsciously, while
Gary's self-centeredness made him unable to deal effectively
with their feelings. Dr. Stahl predicted that both boys would
have " `significant struggles emotionally, especially
with their peers, and with authority figures.' " In
the end, he recommended that Gary's visitation be increased
to longer blocks of time, and he raised the possibility,
if the situation did not improve, that he might recommend
either true joint custody or primary physical custody to
Gary. On March 19, 2001, the trial court ordered visitation
increased as Dr. Stahl's report recommended, and reappointed
the psychologist to evaluate the move-away issues.
Dr. Stahl submitted his report on
those issues on June 29, 2001. He noted the long-standing
desire of Susan to move to Cleveland, and her stated willingness
to support Gary's relationship with the boys through phone
calls and visitation. However, he also reported that Gary
continued to be concerned that the gains he'd made in his
relationship with his sons could be wiped out if they moved.
Dr. Stahl expressed skepticism about the promises made by
Susan to nurture the relationship, and he was concerned that
she would " `inadvertently or unconsciously provoke
loyalty conflicts.' " Still, he recognized that Susan
had always been the primary caregiver, and that the loss
of the relationship between her and the boys would cause
them significant problems, as would the attendant loss of
their relationships with their stepfather and half-sister.
On the other hand, Dr. Stahl continued, loss of their relationship
with Gary would be equally difficult for them. The success
of the move, he concluded, would depend on whether Susan
actually kept her promises regarding contact and visitation
between the boys and Gary, or whether she would be influenced
by family members to let her negative feelings about Gary
govern that relationship and contribute to alienating the
boys from their father.
At a hearing on August 23, 2001,
Susan told the trial court that her husband had been living
and working in Cleveland since March 2001. In response to
a question by her attorney, Dr. Stahl testified that Susan
should not be allowed to move the kids to Cleveland because,
in his opinion, she would not further and encourage the boys'
relationship with Gary; that relationship, he averred, was
still fragile and could easily be made worse by the move.
At the same time, he said, Gary was partly to blame for the
situation because he contributed to the alienation of the
boys by continuing the conflict with Susan, and he compounded
the strain by sometimes being impatient with them. When the
hearing concluded, the trial court found that both Susan
and Gary " `are competent and qualified to be custodial
parents.' " The larger issue, the court said, was whether
the best interests of the boys would be served by allowing
them to go to Cleveland, or by mandating a change of physical
custody if Susan moved. It recognized that while Susan just
couldn't " `let go' of her anger" at Gary, that
didn't mean that she had a bad-faith motive for wanting to
move. However, the court believed that the move itself would
be detrimental to the kids because it would deny them frequent
and continuing contact with Gary. Accordingly, it denied
Susan's request to move with them to Cleveland, and ordered
that if she moved there, primary physical custody of the
boys would be awarded to Gary, at least during the school
year.
Susan appealed, and, in an unpublished
opinion, the First District reversed. The justices found
that the trial court had given insufficient consideration
to Susan's right to move and the boys' need for stability
and continuity, while placing "undue emphasis" on
the detriment to the kids from losing their relationship
with Gary. The panel reasoned that a parent who seeks to
prevent a move must make a " `substantial showing' " that
a custody change is " `essential' " to prevent
detriment to the child. Shortly after the California Supreme
Court granted review, Susan filed a motion to dismiss the
appeal, along with a declaration indicating that she planned
to move to Arizona instead of Ohio; the high court denied
her motion. While the appeal was pending, however, Susan
obtained an order from the trial court allowing the children
to live with her in Arizona " `temporarily' " pending
the outcome of the Supremes' review. A 6-1 majority has now
reversed the First District.
Burgess rules . .
. The majority justices quickly determined that
the case had not been made moot by Susan's move to Arizona;
it still raised issues of continuing importance. With that
behind them, they moved on to a discussion of their reasoning
and determinations in In re Marriage of Burgess (1996)
13 C4th 25, 51 CR2d 444, 913 P2d 473, 1996 CFLR 7157, FIRST
ALERT #F-96-748, on which the lower courts here had relied.
The majority explained that Burgess requires
the trial court, in both initial and postjudgment orders,
to consider a custodial parent's presumptive right under
Fam C §7501(a) to change a child's residence, as well
as the prejudice to the child's best interests that might
occur if the move is allowed. The moving parent does not
need to show that the move is necessary, but he or she
may not have a bad-faith motive for doing so. In addition,
the majority justices continued, the trial court should
preserve the existing custody arrangement unless the noncustodial
parent shows a significant change of circumstances indicating
that a custody change is in the child's best interests.
That means, they said, that the trial court must look beyond
the moving parent's motive to any possible detriment to
the child that the move might cause, placing greater emphasis
on the detriment than on the motive. Burgess ,
the majority found, recognized that "bright line rules
[in move-away cases] are inappropriate"; thus, the
trial court must exercise the broadest discretion in ruling
on a move by considering a wide range of relevant factors.
The Burgess court went on to say that while the
interests of the child in having a stable and continuous
placement with the custodial parent will most often prevail,
the trial court should also consider the distance of the
move, the age of the child, the child's relationship with
both parents, the ability of the parents to communicate
and cooperate, and their ability to put the child's interests
first. Also relevant, Burgess continued, are
the wishes of the child if he or she is mature enough to
express them, and the extent of shared custody currently
in place.
It's not easy . . . The
majority then reviewed several appellate cases that applied
the principles set out in Burgess , noting that
only two were reversals of trial courts that had applied
them. The cases generally had applied all the factors that
were relevant to determining the best interests of the
children involved, but at the same time the courts had
all recognized how difficult it was to make a ruling that
treats each parent fairly when both are fit and loving
parents. The majority here noted the unusual circumstances
in the two reversals, In re Marriage of Williams (2001)
88 CA4th 808, 105 CR2d 923, 2001 CFLR 8729, FIRST ALERT
#F-2001-996 and In re Marriage of Campos (2003)
108 CA4th 839, 134 CR2d 300, 2003 CFLR 9329, FIRST ALERT
#F-2003-1096. In Williams , the trial court erred
by attempting to fashion a reasonable compromise that allowed
two of the four children to move with the mother, while
two stayed behind with the father. In Campos ,
the lower court impermissibly focused on the moving parent's
right to move and lack of bad-faith motive, without giving
the stay-behind parent the opportunity to present evidence
of the detriment that the move could cause the children.
The Campos court (anticipating the reasoning
in LaMusga ) stated that the trial court must
always consider both the lack of a bad-faith motive and
the possible detriment to the child from the move.
Trial court gets it right . .
. Turning to the case at hand, the majority
first considered the appellate court's finding that undue
emphasis had been placed on the detriment to the boys'
relationship with Gary. These justices found nothing
in the record to convince them that the trial court hadn't
considered the boys' need for stability and continuity
in their custody situation, or factored in Susan's presumptive
right to move. In the view of the majority justices,
the trial court had carefully considered Dr. Stahl's
reports and the evidence presented by Susan and Gary.
And while they wished that the lower court had spelled
out on the record what factors it had considered, its
failure to do so did not mean that the court hadn't considered
the information that it should have in making its decision.
The majority justices believed that it is up to the trial
court to assess the weight that it gives to each applicable
factor, and they saw nothing wrong in the lower court's
conclusion that the fragile relationship between the
boys and their father would be destroyed by the move.
Moreover, it was not error for the court to have considered
the parents' past conduct in fashioning a custody arrangement
that was in the children's best interests. Considering
such conduct does not mean that the trial court's order
is punishment for that conduct; it simply indicates that
prior behavior is an appropriate indicator of conduct
that is likely to occur in the future. Here, the majority
concluded, it was not unreasonable for the court to conclude
that Susan wasn't likely to facilitate contact between
Gary and the boys once she'd taken them to Cleveland.
More than just a move . . . In
examining further the role that detriment to the children
properly plays in move-away cases, the justices looked
at In re Marriage of Edlund and Hales (1998)
66 CA4th 1454, 78 CR2d 671, 1998 CFLR 8026, FIRST ALERT
#F-98-875, in which the custodial mom wanted to move with
her child to another state, where her fiancé had
accepted a better-paying job, their standard of living
would be higher, and she would not have to work full time.
In affirming the order permitting the move, the First District
found that the trial court had examined both the strength
of the bond between the mother and the child, and the difficulty
that the stay-behind father would have in caring for the
child if custody was changed. The court also stated that
while the relationship between the child and her father
would be affected detrimentally by the move, that circumstance
was not sufficiently strong to preclude the move. The majority
justices agreed with the Edlund and Hales court
that there is some degree of negative impact in every move,
and if that fact alone could preclude a move, no parent
would ever be permitted to move. They feared, however,
that the Edlund and Hales court had
caused some confusion when it stated that the change of
circumstances that the nonmoving parent is required to
show must consist of more than the move itself. The burden
for the nonmoving parent is to show that the move will
cause detriment to the child; after that the court can
reevaluate the custody order. In meeting this burden, the
majority advised, that parent must convince the court that
the likely consequences of the move, considering all relevant
factors, will be so detrimental that it is in the child's
best interests to change custody.
No pressure here . . . The
majority then turned to the appellate court's conclusion
that the order conditioning the custody change on Susan's
move was coercive and impermissible. The justices agreed
that an order that coerces a moving parent into canceling
plans to move rather than lose custody is not permitted.
However, they did not believe that was what had happened
here. The trial court's order, they felt, was simply the
latest in a line of orders that had gradually increased
the time that Gary spent with his sons; he had been asking
for joint physical custody for a long time, and his request
did not come out of the blue as a response to Susan's request
to move. Under the circumstances, the majority was not
convinced that the order was intended to coerce Susan into
staying.
Bryant blundered . .
. Susan had contended that the court should
give great weight to the finding that she did not have
a bad-faith motive for seeking a move-away order. The
majority pointed out that per Burgess , a bad-faith
motive is one where the custodial parent seeks to move
in order to frustrate contact between the children and
the other parent. However, the rule, as set forth in Burgess ,
is that a custody change is not justified where a custodial
parent has a good-faith reason for wanting to relocate
unless the move will cause sufficient detriment to the
child to require a change. The majority believed that
most courts had interpreted that rule correctly, except
for the court in In re Marriage of Bryant (2001)
91 CA4th 789, 110 CR2d 791, 2001 CFLR 8828, FIRST ALERT
#F-2001-1012, where the Second District found that once
the evidence showed that the moving parent did not have
a bad-faith motive for the move, no further inquiry was
necessary. That, the majority justices said, overstated
the importance of a finding that there had been no bad
faith; the reasons for a move are not irrelevant, even
if the moving parent has a good-faith reason for wanting
to do so. In fact, they emphasized, "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." Summing up, the
majority concluded that trial court judges must be given
the broadest discretion to fashion custody orders that
are in a child's best interests. Finding no error in
the orders made by the trial court in this case, the
majority justices reversed and remanded, with directions
to the First District to affirm the trial court's order
transferring custody of Garrett and Devlen to Gary if
Susan moves to Cleveland. They also directed the trial
court to consider the views expressed in their opinion
and the parties' current circumstances in making any
further custody and visitation orders.
Dissent . . . In her
dissent, Justice Kennard found too speculative the majority's
assumption that the trial court, in making its order, had
considered the interests of Susan, the kids, and Gary equally,
and she sees nothing in the record to indicate that it
did so. This justice believes that the trial court's order
was in fact an impermissible conditional custody order.
She also agreed with the appellate court's determination
that the trial court did not conduct a proper evaluation
of the children's best interests, and that it did not give
proper weight to the boys' need for stability and continuity
of custody. Accordingly, Justice Kennard would have affirmed
the First District.
The majority acknowledges
that the Legislature codified Burgess when
it amended Fam C §7501 by adding subsection
(b), in which it declared that ruling " `to
be the public policy and law of this state.' " However,
the discussion doesn't end there, not by a long
shot. Susan wanted the Supremes to apply Burgess in
a straightforward way, but Gary was asking the
court to interpret Burgess as simply
standing for the proposition that a moving party
need not prove that a move is necessary, and that
the trial court has broad discretion to approve
or deny a move and should be affirmed most of the
time. He also wanted the court to consider the
effect of Montenegro v. Diaz (2001) 26
C4th 249, 109 CR2d 575, 27 P3d 289, 2001 CFLR 8798,
FIRST ALERT #F-2001-1010 [stipulated custody order
is final only if language affirmatively indicates
finality; best-interests test applies absent finality]
on the holding in Burgess . Moreover,
he contended that the test is not one of good faith
or bad faith, but whether the moving parent's motive
is whimsical or improper, as in Cassady v.
Signorelli (1996) 49 CA4th 55, 56 CR2d 545,
1996 CFLR 7301, FIRST ALERT #F-96-769.
When the Supremes granted
review, they agreed to determine what factors may
properly be considered and what standards apply
when a trial court evaluates a request to move.
The majority justices have done that, but in doing
so they've given both parties a little of what
each wanted. Susan got her extensive analysis of
what the Supremes meant in Burgess .
As for the issues Gary wanted them to focus on,
they addressed the burden of proof for the parent
who opposes the move, the moving parent's need
to prove necessity, the extent of the trial court's
discretion in fashioning a move-away order, the
role that motive plays, the role that the kids'
interests play, the role of detriment in these
cases, and the use of conditional orders. The only
reference to Montenegro is in a footnote,
in which the majority says that it doesn't apply
here because it involved a stipulated custody order,
while the order here was an order after hearing
that was "a final judicial custody determination
that the court need not reconsider in the absence
of changed circumstances." We don't see that
as a repudiation of Montenegro ; in fact,
it seems to acknowledge that Montenegro will
apply in a move-away case where the order does
not have indicia of finality. In another footnote,
however, the justices reaffirm the viability of Burgess footnote
12, in which they stated that de novo review is
required when a parent with true shared joint physical
custody seeks to move with the kids. And in both
instances, the standards and factors set forth
in this opinion will ensure that the trial court
looks at more than whether the parent who wants
to move has a good-faith motive for doing so.
One of the first things
that comes to mind in reading this opinion is that
it's good news for all those lonely custody evaluators
who have seen business fall off while family law
attorneys waited to see what the Supremes would
say in this case. They'll have plenty of business
now. The majority has said that the new standards
are applicable in both initial custody orders and
postjudgment mods, so getting a custody evaluation
will be standard practice in any move-away case
from now on; it'll be below standard practice not
to get one for each side whenever a move is contested.
That means that both family law attorneys and the
evaluators they choose will have to be familiar
with the latest theories regarding the effect of
a move on children. There were so many amicus briefs
filed in this case, we lost count of them; however,
neither the majority nor the dissenting justice
cites to any of them specifically. We think it
is clear, nonetheless, that the majority had some
of them in mind when it determined that the children's
needs are as important as, if not more important
than, the moving parent's presumptive right to
move. Moreover, the majority has analyzed the case
more from the point of view of the kids than that
of either Susan or Gary. That, we believe, is a
subtle nudge to trial courts to take the same view,
and it is reinforced by the majority's list of
factors that courts must consider: "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." These factors
mirror the arguments set forth in the amicus briefs,
even if the court doesn't acknowledge their influence.
And these factors speak volumes about the need
for courts and litigants to look at future move-away
cases from the kids' point of view.
Having said all that,
there are a couple of things in the majority opinion
that we find hard to accept. We agree with Justice
Kennard that there is really no evidence that the
trial court properly focused on the detriment to
the boys from being removed from Susan's care;
the trial court certainly seemed to emphasize the
detriment to the boys' relationship with Gary.
Moreover, if this wasn't a conditional order that
was intended to coerce Susan into abandoning her
moving plans, we'll eat our First Alerts. At the
same time, we must agree with the majority that
there are no "right answers" in hotly
contested move-away cases. No one outcome makes
everybody happy, and trial courts simply do the
best they can. •
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