Usually, a court considering a request to modify a child custody or support order will do so only if there has been a sufficient change in circumstances to justify the modification. That’s not the case in situations where the parents share custody and one seeks to move the child elsewhere, however. As a California appeals court recently explained, the proper inquiry instead is whether the move is in the child’s best interests.
Mother and Father married in North Carolina in February 2005, less than a year before Father was deployed to Iraq for military service. Mother gave birth to Daughter the same year, and the two lived in San Diego while Father was overseas. The family returned to North Carolina after Father completed his tour and remained there until he was redeployed in 2007. Father and Wife separated shortly before the second deployment. Wife and Daughter went back to California somewhere around the same time. Daughter at some point went to live primarily with her maternal grandmother after Mother suffered complications during a gastric bypass surgery.
Mother agreed in March 2008 to allow Daughter to live with Father in North Carolina until she could once again care for herself. Father enrolled Daughter in school and filed for divorce from Mother two months later. He also obtained a temporary order granting him custody of the child and barring Mother from moving her out of the state. Father later agreed to drop the case, however, based on what he said was Mother’s pledge to return to North Carolina and attempt to reconcile.
Around the same time, Mother filed for divorce in California. In May 2008 she traveled to North Carolina, removed Daughter from her preschool facility, and took the child back with her to California. Mother initially refused to allow Father to talk to Daughter but eventually relented. Father later moved back to San Diego, and a trial court there ordered the couple to temporarily share custody of the child with “week on/week off visitation.” The court ordered Mother to seek mental therapy and Father to attend monthly check ups for posttraumatic stress disorder. It also ordered Husband to pay nearly $800 per month in child support. The parties later entered into a marital settlement agreement under these terms.
The trial court later granted Father’s request for primary custody after he moved to Idaho in 2011. The decision was based largely on the findings of a mediator, who concluded that Mother wasn’t able to properly care for Daughter. Among other evidence, the mediator noted that Daughter had already missed 31 days of the current school year and had been late another 14 days. The mediator also said Mother had many medical issues and depended on her own parents to care for her, but that they weren’t in a position to do so because of their own medical issues. Mother said Daughter had missed the school days because she was frequently sick. The mediator determined that it was in Daughter’s best interests to give Father primary custody.
Affirming the decision on appeal, the Fourth District Court of Appeals said the trial court didn’t need to find that the circumstances had changed in order to award Father primary custody, but instead that it was in Daughter’s best interests to do so. “When a parent who shares joint physical custody requests to relocate their child, the trial court must decide de novo what physical custody arrangement would be in the child’s best interests,” the Court explained. Here, the Court said the trial judge properly weighed the evidence in favor of awarding Father primary custody. In addition to her inability to care for Daughter, the Court said the evidence showed that Mother had tried to alienate Father from the child.
If you’re considering a divorce in California, it’s important to seek the counsel of an experienced divorce attorney. Contact San Jose divorce lawyer John S. Yohanan. With more than 30 years of experience, Mr. Yohanan is an accomplished family law attorney who has helped a number of clients resolve a property disposition and a wide variety of other issues on optimal terms. Call our office at (408) 297-0700 or contact us online to schedule a consultation.
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