Opinion
In denying review, the Supreme Court ordered that the opinion be not officially published. (See California Rules of Court— Rules 976 and 977).
Ordered Not Published Previously published at: 40 Cal.App.4th 433
[DEPUBLISHED BY ORDER DATED FEBRUARY 29, 1996]
COUNSEL
[46 Cal.Rptr.2d 738] Mary Anne Hoover, in pro. per., San Rafael, for appellant.
Mauna Berkov, Hunt, Oliver & Berkov, San Rafael, for respondent.
OPINION
ANDERSON, Presiding Justice.
Child custody " move-away" cases come in many shapes and sizes. Those in which relocation is prompted by the hard economic realities facing one parent in a successful shared parenting arrangement pose some of the most difficult and painful decision-making challenges for our family law courts. When both parents are equally caring and competent, the Solomonic dimension becomes palpable.
On appeal these attributes do not vanish, but our standard of review of necessity wedges some distance between this court and the decisional quandary facing the parties and court below. We must honor the trial court's resolution unless that court abused its wide discretion. (In re Marriage of Roe (1993) 18 Cal.App.4th 1483, 1488, 23 Cal.Rptr.2d 295.) " ‘ The precise test is whether any rational trier of fact could conclude that the trial court order advanced the best interests of the child.’ " (Ibid., quoting In re Marriage of Carlson (1991) 229 Cal.App.3d 1330, 1337, 280 Cal.Rptr. 840.)
Mother and appellant, Mary Anne Hoover (mother), appeals the order (1) restraining her from moving to Pittsburgh, Pennsylvania with her son, Johnny Shaw Jr., and (2) granting primary custody of Johnny to his father, respondent John Shaw (father). Applying the standard announced in Carlson, we must affirm that order.
I. FACTUAL BACKGROUND
Mother and father separated in May 1989 when Johnny was 14 months old; they subsequently dissolved their marriage. Thereafter mother married Charles Manoli, Jr., and the couple had two boys of their own, Charlie and Christian. Mother worked part-time as a contract attorney while Manoli worked full-time as an associate attorney until laid off in May 1993. After Manoli was laid off, mother increased her hours. Unable to find employment in the Bay Area, Manoli accepted a position with a law firm in Pittsburgh, Pennsylvania, commencing October, 1993. (The families of both Manoli and mother are from Pennsylvania.)
Mother and father shared joint legal and physical custody of Johnny under a 60 (time with mother)/40 (time with father) time-share arrangement, described by the court as " a successful shared parenting arrangement."
With Manoli's move imminent, Manoli and mother discussed with father their desire to move to Pittsburgh with all the children. Father sought a restraining order to prevent mother from removing Johnny from the county and state. The court issued mutual restraining orders pending resolution of the relocation issue, directed the parties to mediate the physical custody issue and ordered a child custody evaluation. Clinical Psychologist Richard Mays conducted the evaluation. The matter proceeded to trial because the parents could not resolve the custody conflict on their own.
Dr. Mays stated that " both parents have difficulties with defensiveness and resentments towards each other" and identified problem areas with both. However, in his opinion neither parent suffered " any serious [46 Cal.Rptr.2d 739] psychological impairment." It was clear to the evaluator that the parents' individual and joint parenting efforts were " resulting in a fairly well adjusted child, socially and emotionally." Dr. Mays concluded: " Johnny is bonded to both parents and should have flexible and regular access to both. [¶ ] Although relocation is not a preferred alternative, neither parent represents a superior choice and, either would be adequate in the event that sole physical custody is ordered to one party." Regarding the move, Dr. Mays stated that, if allowed, it would not improve the quality of Johnny's parenting situation. In fact, it would " deprive him of one or the other of his most important support persons at a time when his socialization is still in the important stages of formation. On the other hand, Johnny will ultimately adapt to his circumstances if he is placed in the physical custody of either parent without traumatic emotional harm. This examiner believes that, psychologically, the status quo is the best alternative at this time." (CT 60)
At trial Dr. Mays reiterated that both parents " had their relative personal difficulties but nothing precluded their ability to function as a reasonable and adequate parent." Should mother relocate to Pittsburgh, he had no recommendation concerning in which family Johnny should be placed. About bonding, he testified that Johnny was equally bonded with both parents. In fact, he was struck with the fact that neither parent appeared to be considered " the more significant psychological parent." In his opinion Johnny had also become bonded to his half-siblings " in that he enjoys and participates in relationships with them. And there are aspects of those relationships that he doesn't enjoy, but he does expect, and he considers them to be important people in his life. And he also has a relationship of some substance with his stepfather, Mr. Manoli." Dr. Mays also stated that the role of older brother is a valuable role in Johnny's life, that he could derive " a good amount of self-esteem and some satisfaction being an older brother," although there are instances in which being an older brother can be a negative experience.
Dr. Mays further expressed that both parents understood the importance of Johnny's contact with the noncustodial parent and both would facilitate such communication. He noted that Johnny's teacher told him that Johnny's relationship with his father was " special." Dr. Mays further stated that Manoli could provide a more than adequate role model in Johnny's life should the boy move to Pittsburgh (RT 72, 94) .
At the close of Dr. Mays's testimony the court asked if he had an opinion as to which of the two environments would be in Johnny's best interest— the " traditional" family with mother, father and " three little boys," or the less traditional unit with father as single parent. Mays could not offer an opinion.
Both parents testified and to some extent pointed fingers at one another.
Trial Court Decisions
The court found that Manoli's move to Pittsburgh was economically necessary, both parties were excellent parents and Manoli was an excellent stepfather. However, it noted that " in the opinion of Dr. Mays, Johnny has a ‘ special’ relationship with Petitioner. This does not in any way reflect negatively on Respondent's parenting but points to the fact that Petitioner has been intimately and actively involved in Johnny's parenting since the day of his birth. The ‘ move away’ would disrupt and destroy Johnny's relationship with Petitioner and would not be in Johnny's best interest." The court concluded that it would be in Johnny's best interest to remain in Marin County with his father, modified the custody order to give father physical custody of Johnny, with reasonable visitation rights to mother, and enjoined mother from relocating to Pittsburgh with Johnny.
What Dr. Mays reported in his written evaluation is that Johnny's kindergarten teacher noted that Shaw spent time in the classroom each week, which was very helpful to Johnny. She described their relationship as " special."
Meanwhile, mother moved to maintain the custodial status quo on representation that she was committed to staying in Marin County through the 1994-1995 school year " due to [46 Cal.Rptr.2d 740] the welfare of [her] son, Johnny." The court granted her motion, and stayed its custody order pending resolution of mother's appeal. Mother also moved unsuccessfully for reconsideration of the underlying custody order. Mother appeals both orders.
II. DISCUSSION
A. Legal Framework
It is the 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...." (Fam.Code, § 3020.) In line with this policy, section 3040, subdivision (a)(1), establishes a preference of custody to both parents jointly or to either parent, with direction that when granting custody to either parent, the court shall consider which parent is more likely to facilitate frequent and continuing contact with the noncustodial parent, and with prohibition against preferring a parent as custodian for gender reasons.
Unless otherwise indicated, all further statutory references are to the Family Code.
However, there is no preference for the form of parental custody (joint or sole, legal or physical), the intent being to allow " the court and the family the widest discretion to choose a parenting plan that is in the best interest of the child." (§ 3040, subd, (b).) In determining the best interest of the child in a custody proceeding, the court must consider the health, safety and welfare of the child as well as the nature and amount of contact with both parents. (§ 3011).
B. The Court Applied the Correct Burden of Proof
Mother first attacks the burden of proof imposed on her. There is some confusion in the case law concerning the exact nature of the burden of proof borne by the moving parent in a move-away case. We believe the court in In re Marriage of Selzer (1994) 29 Cal.App.4th 637, 645, 34 Cal.Rptr.2d 824 has articulated the correct standard. The moving parent does bear a burden of proof, but that burden is properly derived from the " best interests of the child" standard. Thus the moving parent must show not only that the move is necessary to the custodial parent, but that it will be in the child's best interest.
The court in In re Marriage of McGinnis (1992) 7 Cal.App.4th 473, 9 Cal.Rptr.2d 182 devised a different, more onerous test. That court held that when a shared parenting arrangement is working, the " move away" parent has the burden of proof " 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.’ " ( Id ., at p. 479, 9 Cal.Rptr.2d 182.) As explained in In re Marriage of Roe (1993) 18 Cal.App.4th 1483, 1489, 23 Cal.Rptr.2d 295 and reaffirmed in Selzer at pp. 644-645, 34 Cal.Rptr.2d 824, this language is at odds with the wide discretion afforded the trial court in fashioning a parenting plan that promotes the child's best interest. (§ 3040, subd. (b).)
Here the court correctly ruled that mother had the burden to convince the court that it was in Johnny's best interest to move to Pittsburgh with his mother and her family. The court then went on to amplify that because it was mother who was relocating, she had to show " that substantially decreasing [father's] custodial time with Johnny would be in Johnny's best interest. If [mother] cannot meet this burden of proof, she must suffer the consequences of having Johnny remain in Marin County with his father and thereby having her custodial time with Johnny substantially reduced and altered."
C. The Court's Decision Is Not Inconsistent with Section 7501
Mother also faults the trial court's decision as running counter to section 7501, which states that a parent entitled to the custody of his or her child has the right to change the child's residence, subject to the court's power to restrain a removal that would prejudice the child's rights or welfare. She claims that as the primary caretaker and custodian, only she can exercise section 7501 rights which the court cannot override with a " naked" finding that it is in the child's best interests to remain with his father in Marin County. Not so.
[46 Cal.Rptr.2d 741] Section 7501 has been on the books in one form or another for more than a century [see former Civ.Code, § 213, enacted 1872]. It must be harmonized with and read in light of the more recent legislative determination that " frequent and continuing contact" with both parents is in the child's best interests (§ 3020) and the companion statute empowering family courts to require notice to the noncustodial parent of an intent to change residence (§ 3024). " 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." (In re Marriage of Carlson (1991) 229 Cal.App.3d 1330, 1336, 280 Cal.Rptr. 840.)
Declaring that it could not disregard the effect and importance of these new modifications, the Carlson court held that a noncustodial parent does not have an affirmative burden to prove that a move would be detrimental to the child in order to obtain a restraining order. (In re Marriage of Carlson 229 Cal.App.3d at p. 1336, 280 Cal.Rptr. 840.) The court went on to explain that [former] Civil Code section 213 is not inconsistent with this determination because that statute authorizes a court to thwart the custodial parent's right to determine the child's residence by restraining a removal that would be detrimental to the child. Because [former] Civil Code section 4600, subdivision (a), identifies continuing contact with both parents as a constituent element of the child's best interests, a restraining order which preserves such contact is directly within the authority extended by [former] Civil Code, section 213. (Id., at pp. 1336-1337, 280 Cal.Rptr. 840.)
Now section 7501.
Now section 3020.
D. The Court Applied the Proper Standard in Determining Johnny's Best Interest
Mother further maintains that the court abused its discretion in failing to give controlling weight to her status as primary caretaker. Initially, she argues that the court ignored the teachings of our Supreme Court in Burchard v. Garay (1986) 42 Cal.3d 531, 229 Cal.Rptr. 800, 724 P.2d 486 and In re Marriage of Carney (1979) 24 Cal.3d 725, 157 Cal.Rptr. 383, 598 P.2d 36. We disagree. In Burchard, the court emphasized as pertinent to the best interests analysis the significance of a child's relationship with his or her primary caretaker, in light of the importance of stability and continuity in the child's life and the harm that could stem from disruption of established patterns of care and emotional bonds. (Burchard v. Garay, supra, 42 Cal.3d at p. 541, 229 Cal.Rptr. 800, 724 P.2d 486.) Unlike Burchard, here we have shared physical custody and established patterns of care and emotional bonds with both parents. Burchard simply does not apply.
Neither does Carney. Carney instructs that a court cannot change a child's custodial parent unless there are changed circumstances affecting the child's welfare that render it essential or expedient to alter the child's placement. (In re Marriage of Carney, supra, 24 Cal.3d at p. 730, 157 Cal.Rptr. 383, 598 P.2d 36.) The changed circumstance principle of course is premised on the fact that a particular custodial arrangement has already been blessed by the court as being in the child's best interests. That decision need not be reexamined and the court should preserve the established custody plan unless there is a significant change of circumstances which indicates that a different custodial arrangement would be in the child's best interest. (Burchard v. Garay, supra, 42 Cal.3d at p. 535, 229 Cal.Rptr. 800, 724 P.2d 486.) Where, as here, disruption of the custodial status quo is a given, the changed circumstances test does not apply.
Mother also seizes on a passage from Selzer to underscore her point that the trial court improperly skewed the best interest analysis by elevating father's custodial interest over all other considerations, including her role as primary caretaker. Specifically, she points to the following language: " As a practical matter, the best interests of the child will often parallel those of the primary caretaker parent, because the interests of the child in continuity and permanency of custodial [46 Cal.Rptr.2d 742] placement with the primary caretaker parent may otherwise be defeated. [Citation.] However, this alignment of interests is not inevitable; and in [a prior decision], at least one of the children in fact voiced a different interest, preferring permanency of residence in the community to permanency of custody with the mother. [Citation.] Further, while the expressed preference of the child may not be determinative, and there may be problems with a very young child in understanding or even reliably ascertaining the child's own wishes through the filter of parental desires, in the absence of an expressed view, the best interests of the child may often be presumed to favor permanency of custodial placement." (In re Marriage of Selzer 29 Cal.App.4th at pp. 643-644, 34 Cal.Rptr.2d 824.)
We note first that Selzer does not lay down an iron-clad rule favoring the primary caretaker over the " lesser" caretaker. Instead, it makes the generalization that often the child's welfare is best preserved in maintaining custodial continuity. Second, we repeat that what is before us is a joint physical custody situation where both parents have been actively involved since birth in rearing and caring for their child. True, mother has had more custodial time, but this is a matter of degree only.
Third, contrary to mother's assertion, the court did not focus solely on father's custodial rights and interests. We initially had some concern with certain language in the court's decision, quoted above, to the effect that it was mother's burden to show that " substantially decreasing" father's custodial time with Johnny would be in the boy's best interest. To clarify: Once, as here, it is inevitable that the status quo must change, the court must evaluate the best interest of the child anew and in the process look at what would be lost and gained under each custodial scenario. While the moving parent does bear the burden of persuasion, it is not a lopsided burden that penalizes the parent for a necessary move. If the moving parent can demonstrate necessity, the remaining hurdle is simply to prove that the child would fare better relocating with that parent than remaining in the present location with the other parent.
At first glance it appeared that the court was only assessing the loss to the father-son relationship, with no thought given to the mother-son relationship or Johnny's relationship with his half-siblings. However, upon closer review of the record, we are confident that the court looked at both sides of the equation. First, the court specifically inquired of Dr. Mays during his testimony whether it would be in Johnny's best interest to go with his mother to Pennsylvania, where he would grow up in a " traditional" family of mother, stepfather and brothers, or to remain in Marin County with his father in a single parent situation. Clearly this questioning showed that the court was considering Johnny's best interest under each situation. Second, prior to rendering a decision, the court framed its duty as ascertaining what was in Johnny's best interest, recognizing that this meant deciding who would be the primary parent because shared custody was no longer an option. Again, this would involve assessing the attributes and dynamic of each parenting plan.
Third, when ruling on mother's petition for rehearing the court elucidated how it looked at the evidence: " In weighing the evidence ... in a situation that was a no-win situation for everybody, including the court, one of the things that was probably some of the best evidence from your side was the fact I considered the three little boys to be a good little family, a traditional family, he and his half brothers. [¶ ] It was of great concern to the court to break that up had you gone ahead and moved and he stayed here primarily with his father, to break up the situation of those three little boys together in what I thought was a wholesome, good family arrangement."
Mother goes to lengths to criticize the court for " fail[ing] to consider the breakup of the family unit." The court commented that it was unaware of any California law that addressed the issue of sibling separation in custody proceedings. Mother now cites inapplicable law to support her theory that in cases such as this the best interest test must include consideration of whether there are compelling reasons to justify separation of siblings. (Welf. & Inst.Code, § 16002; pure dicta in In re Marriage of Schwartz (1980) 104 Cal.App.3d 92, 95-96, 163 Cal.Rptr. 408 and policies of other states— Pennsylvania: Hockenberry v. Thompson (1993) 428 Pa.Super. 403, 631 A.2d 204, 206; Florida: Griffith v. Griffith (1993) 627 So.2d 527, 528; Maryland: Hadick v. Hadick (1992) 90 Md.App. 740, 603 A.2d 915, 918; and South Dakota: Miller v. Miller (1989) 444 N.W.2d 45, 47.) Suffice it to say that the court did consider the break-up of Johnny and his half-siblings. Section 3011 mandates that in determining the best interest of the child the court must consider the health, safety and welfare of the child. This mandate is sufficiently broad to encompass the effect of sibling separation on a case by case basis. Unless and until there is specific legislative direction that elevates sibling unity above other values and factors, courts in California are free to treat it equally with any other factor that might be important to the welfare of the child.
Finally, we conclude that the court did not abuse its wide discretion in determining [46 Cal.Rptr.2d 743] that it was in Johnny's best interest to stay in Marin County with his father. Johnny and his father appeared to Dr. Mays " to be very strongly bonded." According to Dr. Mays' collateral contacts, their relationship was " special" and father was " very devoted to supporting" Johnny's development. The evidence further showed that father had been " intimately and actively" involved in parenting Johnny since birth and Johnny welcomed the more focused attention his father could give him. The court had to make a Solomonic decision. We cannot say on the record before us that no rational trier of fact could find that the court's order furthered Johnny's best interest.
E. Mother's Right to Travel Was Not Violated
Mother also complains that the court's order unconstitutionally impinges on her right to travel. We do not agree. The court did not direct mother to stay in Marin County. She can travel interstate; the only issue is whether she can take Johnny with her. While the order may indirectly chill mother's right to travel, we cannot view her rights in a vacuum. ( In re Marriage of McGinnis , supra , 7 Cal.App.4th at p. 480, 9 Cal.Rptr.2d 182.) Because both parties have the same and equal constitutional right to travel, injecting this right into " move away" cases does not aid their resolution. Rather, such analysis will always result in deadlock and, thus, any defensible disposition will always be rooted in the best interest of the child. (In re Marriage of Selzer, supra, 29 Cal.App.4th at p. 643, 34 Cal.Rptr.2d 824.)
F. The Court Properly Modified The Custody Order
Mother finally urges that the court erred in modifying the custody order to provide that father would have physical custody of Johnny as primary parent, with visitation rights to her within the guideline of 100 days per year. Initially, father sought an order restraining any move of Johnny to Pittsburgh or, in the alternative, an order giving him primary care, custody and control of Johnny.
The court cast the decision before it as follows: " Under the circumstances, because of this move, Johnny can't live with both parents. He's got to live with one or the other, and the real decision is going to boil down ... [to] which parent is going to be the primary parent. Under the circumstances, we can't have shared custody any longer. [¶ ] ... [R]egardless which way that goes, ... the non-primary parent will have visitation of at least 100 days a year.... So the end result here— and this is what I want you to address in your closing argument— is one parent is going to be the primary parent and why and after that it will be the other will have visitation."
Mother was on notice that given her imminent move, the custody order had to be drastically altered. Had she wished the court to consider something other than physical custody to one parent with 100 days of visitation to the other, her time to so urge has passed. In any event, as a practical matter shared parenting under a joint custody arrangement cannot work cross-country. The court responded to the case that was presented and entered an appropriate order.
The judgment is affirmed.
POCHé and REARDON, JJ., concur.