| [1] | IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT
DIVISION SIX |
| [2] | 2d Civil No. B145636 |
| [3] | 88 CA4th 808 |
| [4] | April 26, 2001 |
| [5] | IN RE MARRIAGE OF CHRISTOPHER BRETT AND JAMIA SUE WILLIAMS. JAMIA SUE WILLIAMS, RESPONDENT, v. CHRISTOPHER BRETT WILLIAMS, APPELLANT. |
| [6] | (Super. Ct. No. 231823) (Santa Barbara County) James W. Brown, Judge Superior
Court County of Santa Barbara |
| [7] | Gary R. Ricks; Ricks & Associates, for Appellant. Matthew J. Long,
for Respondent. |
| [8] | The opinion of the court was delivered by: Yegan, J. |
| [9] | CERTIFIED FOR PUBLICATION |
| [10] | In this family law move-away case, the court permitted two of four children
to move away. As we shall explain, a family law court may enter an order
which has the effect of separating siblings only when compelling circumstances
dictate that such separation is in the children's best interest. |
| [11] | Christopher Brett Williams (Father) and Jamia Sue Williams (Mother) dissolved
their marriage and agreed to a joint custody arrangement of their four minor
children, ranging in age from 10 to 3 years. Mother remarried and moved
from Santa Barbara to Utah. She requested that the parties' joint child
custody agreement be modified so the children could live in Utah with her.
Father objected. The family law court ordered that the eldest and youngest
children could move to Utah with Mother, while the middle children were
to remain in Santa Barbara with Father. Father contends the family law court
abused its discretion because it separated siblings from each other. We
conclude that the family law court abused its discretion because the record
does not show fcompelling circumstances warranting the separation of the
siblings. Accordingly, we reverse. *fn1 |
| [12] | Facts |
| [13] | The parties have four children: sons Scott (born September 1990) and Brett
(May 1996), and daughters Taylor (June 1992) and Jordan (October 1997).
Mother worked outside the home until about February 1996, when she was pregnant
with Brett. Thereafter, she was a "stay-at-home mom" until July 1999 when
she returned to full time employment. |
| [14] | Mother and Father separated in June 1999, but continued to share the family
house until October, when Father moved into a condominium. Between October
1999 and April or May 2000, the children spent alternate weeks with each
parent. The parties hired a nanny who lived in Mother's house and watched
the children there on weekdays, regardless of where they were sleeping.
In May 2000, the nanny moved into Father's house and continued to care for
the children while they stayed with him. |
| [15] | Mother remarried in May 2000 and moved to Utah where her new husband resides.
She filed a motion to modify custody and sought the family court court's
permission to take all the children to Utah. Mother testified that she thought
moving to Utah was in the children's best interests because lower housing
costs would allow her to work one-half or three-quarter time, leaving her
more time to spend with them. |
| [16] | Mother testified that she has a strong bond with her children and that
they are her number one priority. The children had met her new husband about
five times and they appeared to get along well. Mother opined that the children
were not Father's first priority because he works long hours. She believed
that Father worked fewer hours during the weeks he did not have custody
of the children because he preferred to spend that time with his girlfriend.
Mother believed Father was too impatient with their oldest child, Scott,
and that he did not pay enough attention to Taylor's softball games and
school activities. She also thought Father had a hard time telling the children
"no," and often undermined Mother's authority by contradicting her rules. |
| [17] | Father testified that the children are his first priority. He believed
the alternate weeks arrangement worked well and opposed the children moving
to Utah. Father testified the children had been staying with him virtually
full time during May 2000 because Mother was busy with her move to Utah.
Although he works long hours, Father testified, he is available whenever
the children need him. He often has lunch with the children at their school
or has them visit him at his workplace. Father acknowledged that the children
love their mother and want to be with her, but he believed they should stay
in Santa Barbara because they had always lived there and because they had
a large extended family in the area. For example, the oldest child Scott
played on a youth football team that was coached by Wife's father. Taylor
had taken ballet and played soccer and softball. Scott and Taylor also had
ties to their school and church. The children did well in their school and
were well adjusted socially. Father opined that frequent travel to Utah
would harm the children and that Mother should visit them in Santa Barbara. |
| [18] | Family Law Court Ruling |
| [19] | The family law court ordered that the oldest child and the youngest child
reside with Mother in Utah but that the two middle children remain in Santa
Barbara with Father. It said: "Normally, the court would not consider separating
the four siblings, since the court weighs the continuity, stability and
bonding of these relationships very heavily. However, on the facts of this
particular case, the court finds that the best interests of the children
are served by a separation. The criteria set forth in the leading cases
and which the court has considered are evenly balanced in this case and
the court is convinced that either parent would be an appropriate custodial
parent. However, in considering the nature and amount of contact with both
parents the court finds that there is evidence that the oldest child has
a stronger relationship with his mother and that his best interests are
served by her being the custodial parent in his case. In considering the
age of the children, the court finds that the youngest child is of such
tender years that her best interests are served by her mother being the
custodial parent in her case. As to the two middle children, the factors
of the established patterns of care and emotional bonds outweigh other considerations
and the court finds that their best interests are served by their father
being the custodial parent in each case." *fn2 |
| [20] | Contentions on Appeal |
| [21] | Father contends the family law court abused its discretion when it awarded
primary custody of Scott and Jordan to Mother because it improperly considered
Mother's financial ability to stay at home with the children and failed
to give appropriate weight to the children's ties to Santa Barbara. Alternatively,
Father contends that the court should have appointed an investigator to
obtain more information about the children's living situation in Utah. Although
she has not appealed, Mother contends the family law court properly decided
that Scott and Jordan should move to Utah because the evidence demonstrated
that they are closely bonded to her. She claims, however, that the family
law court abused its discretion with respect to Taylor and Brett because
there is no basis for distinguishing between them and their siblings. |
| [22] | Standard of Review |
| [23] | "The standard of appellate review of custody and visitation orders is
the deferential abuse of discretion test. [Citation.] The precise measure
is whether the family law court could have reasonably concluded that the
order in question advanced the 'best interest' of the child." (In re Marriage
of Burgess (1996) 13 Cal.4th 25, 32.) Where, as here, the parties have a
working joint legal and joint physical custody agreement, and one parent
seeks to relocate with them, the family law court "must determine de novo
what arrangement for primary custody is in the best interest of the minor
children." (Id. at p. 40, fn. 12; see also, Brody v. Kroll (1996) 45 Cal.App.4th
1732, 1736.) |
| [24] | Sibling Separation |
| [25] | The family law court found that the parties had a working joint custody
arrangement that would be disrupted by Mother's move to Utah. (In re Marriage
of Burgess, supra, 13 Cal.4th at p. 40, fn. 12.) Mother supplied good faith
rational reasons for her desire to move with the children. (See, e.g., In
re Marriage of Edlund (1998) 66 Cal.App.4th 1454, 1469-1470; In re Marriage
of Biallas (1998) 65 Cal.App.4th 755, 763.) It was therefore necessary for
the family law court to determine de novo the custody arrangement that would
be in the best interests of the children. (In re Marriage of Burgess, supra,
13 Cal.4th at p. 40, fn. 12; see also In re Marriage of Whealon (1997) 53
Cal.App.4th 132, 137.) Family Code section 3011 provides that, in determining
the best interests of the children, the family law court must consider their
health, safety and welfare, any history of abuse by either parent, the nature
and amount of the children's contact with each parent, and any substance
abuse by either parent. |
| [26] | The family law court found that there was no history of abuse and that
the remaining factors "are evenly balanced" between the parties, either
of whom would be an appropriate custodial parent. We agree. Both parents
are bonded with the children, have demonstrated that they care for the children
appropriately, and both have the desire and the ability to serve as the
primary custodial parent. Similarly, the children appear to function well
in the care of each parent. Had the family law court allowed all of the
children to either reside in Santa Barbara or move to Utah, we could easily
affirm on the deferential standard of appellate review. (See, e.g., Estate
of Gilkison (1998) 65 Cal.App.4th 1443, 1448-1449.) |
| [27] | We cannot do so here. The family law court has ordered a custody arrangement
so unusual and onerous to all concerned that it cannot be considered a routine
exercise of judicial discretion. It has quite literally "split the babies,"
requiring two siblings to remain in Santa Barbara with Father while ordering
that the other two move to Utah with Mother. The record is silent on the
adverse effect the order will necessarily have from the point of view of
the children. They too have rights which must be considered. |
| [28] | Neither parent testified concerning the relationships among the children,
focusing instead on their own relationships with the children. The record
contains no psychological evaluations, no school or medical records and
no input from the children. There is no evidence concerning the extent to
which the siblings are bonded to one another or the extent to which their
separation would hinder or serve their best interests. *fn3 |
| [29] | The present record does, however, contain ample support for the family
court court's conclusions that either parent would be an appropriate custodial
parent. The order treats these loving and capable parents equally, rewarding
each one with primary custody of two children. We appreciate the family
law court's dilemma. A custody decision is one of the most serious decisions
a family court judge is required to make. Move-away cases are particularly
troublesome because, in most situations, they start with a parent's election
to move. Nevertheless, absent agreement, the family law court must make
a decision. Here, the family law court may have avoided the difficult task
of deciding which capable parent would raise all of the children. The order
may come at too high a price because it separates each child from one parent
and from two siblings. In its zeal to reward good parents, the family law
court may have punished good children. |
| [30] | Children are not community property to be divided equally for the benefit
of their parents. The parents of these children have chosen to divorce from
each other. The children have not chosen to divorce from each other. At
a minimum, the children have a right to the society and companionship of
their siblings. (See, e.g., Welf. & Inst. Code (2001 Supp.) § 16002,
subd. (a) (declaring the public policy of this state that siblings be placed
in foster care together "to maintain the continuity of the family unit and
ensure the preservation and strengthening of the child's family ties . .
. .").) We can envision a case in which an extraordinary emotional, medical
or educational need, or some other compelling circumstance, would allow
the separation of siblings. But here there is no evidence of the impact
that separation will have on these children. In the absence of such evidence,
we cannot affirm the family law court's order even on the deferential abuse
of discretion standard. |
| [31] | No published California opinion has sanctioned a custody order which,
in essence, divorces children from each other. Other states have spoken
to this issue. Many states afford strong protection to sibling relationships.
(See, Annot., Child Custody: Separating Children by Custody Awards to Different
Parents -- Post 1975 Cases (1989) 67 A.L.R.4th 354.) Florida, for example,
acknowledges that "there is often a bond of interdependence among siblings
which, if left intact, can serve as a source of mutual support and can help
to lessen the trauma of divorce." (Brown v. Brown (Fla.App. 4th Dist. 1982)
409 So.2d 1133, 1134.) In recognition of that bond, Florida courts have
consistently held that, "the separation of siblings is disfavored and should
be done only under the most compelling circumstances." (Bache v. Bashir
(Fla.App. 4th Dist. 1986) 482 SO.2d 546, 548.) "Children in a family should
not be separated from each other and distributed about in different homes,
except for the most compelling cause. For while brothers and sisters may
not have a legal right to remain together, to share each others lives, and
to grow up together, certainly they have a natural right to do so. Justice
requires that society exercise its moral duty to insure that children in
a family enjoy this right until such time as absolute necessity and the
welfare of the children, itself, required their separation." (Arons v. Arons
(Fla.1957) 94 So.2d 849, 853.) |
| [32] | The rule and rationale of Florida jurisprudence is rooted in comon sense.
It provides a practical and workable rule to guide family law courts considering
sibling separation orders in California. The present record discloses no
compelling circumstances to justify the separation of these siblings. On
remand, the family law court may only order a separation of siblings upon
a showing of compelling circumstances. If it does, it must articulate such
circumstances in a manner which permits meaningful appellate review. (Fam.
Code, § 3087.) We express no opinion on how the family law court should
rule on remand. |
| [33] | The custody order is reversed. The matter is remanded for reconsideration
in light of the new rule we have announced. Each party shall bear his or
her own attorney fees and costs on appeal. |
| [34] | CERTIFIED FOR PUBLICATION. |
| [35] | We concur: |
| [36] | GILBERT, P.J. |
| [37] | COFFEE, J. |
|
|
|
| Opinion Footnotes | |
|
|
|
| [38] | *fn1 Both parents are displeased with the family law court's
order. Father says the decision was "intemperate" and that splitting the
"family in two halves should not be tolerated." Mother says "the trial court
lost its way and made a decision that could not reasonably be seen as being
in the best interests of these four children." |
| [39] | *fn2 This excerpt from the family law court's written order
is largely conclusional. It is silent on the adverse result which we assume
will be occasioned by the separation of siblings. |
| [40] | *fn3 Family Code section 3110 et seq., provides a procedure
for obtaining a custody investigation and report which could address the
impact of sibling separation. |