Is it proper for a family law judge to change custody in the middle of the school year so that the children are required to move from California to Alabama? Maybe, but caution is required. That was the message from the California Court of Appeal recently in a case called Jane J. vs. Superior Court (Christopher J.).
In Jane J., the parties got divorced in Wisconsin in 2006. By virtue of an agreement, the mom got the kids for the majority of the time. This was due to the father’s military status. Then, in 2012, the mother got permission from the Wisconsin judge to relocate to California. Meanwhile, the father ended a deployment and settled in Fort Rucker, Alabama in December, 2013. In January, 2014, the father registered the Wisconsin order in California. Three months later, he filed a motion in California to change the terms of the 2009 order so as to increase his visitation or to simply give him primary physical custody.
It looks like the hearing was continued a number of times while the parties worked out their differences, as the ultimate hearing on the primary physical custody issue was not held for 13 more months — until February of this year. The evidence showed that during the interim, for the calendar year 2014, the father spent 57 days with the children, who are both boys.
The court was not pleased with the evidence about the mother, saying “it just seems like what I see as a chronic and consistent pattern of one parent blocking the other continually and incredulously even during the week that they came to court here and the day of [the hearing]. It just smelled fishy”. After determining that the Wisconsin order from six years earlier was just a temporary order, the California judge determined that no changes in circumstances were needed to make a change in custody. And that’s just what she did.
The judge said, “[I]t’s time [Father] had an opportunity to parent these children. I’m going to change custody. He needs to be given the opportunity to be the parent that he’s striving to be in the limited time that he has”. The court realized that its order was being made in February, which meant a move for the children from California to Alabama in the middle of the school year. But the court turned down the mother’s request that at least the order not take place until the end of the school year. The judge said, “[I]t’s not [Father’s] position. It’s my position”.
The mother filed a writ, which is a request for immediate, emergency relief. In response, the Court of Appeal said “it appears respondent court’s decision to abruptly change custody from Mother to Father was influenced by an erroneous understanding of the applicable law”.
Noting that move-away orders are serious decisions that should not be made in haste, the justices first determined that the Wisconsin order was not merely a temporary order. This meant that the father had “the initial burden to make a substantial showing of changed circumstances affecting the children to change the final custody determination of the Wisconsin court”. Putting it more succinctly, the panel said “[I]t is not enough to argue that it is time to switch sides to give the other parent the opportunity to take control”. In fact, the appeals court said that because the parent seeking the move-away was –contrary to many or most move-away cases– the non-custodial parent, “Father bears additional burdens of persuasion as part of the changed circumstances standard”. Stated differently, “[h]is standard of proof to impose what amounts to a double-barreled change ‘is admittedly very high'”. The court concluded this part of the analysis saying that “[a]t a minimum, this requires a balancing of the children’s current situation in California and their proposed new situation in Alabama, with the substantial burden of showing a change of circumstance imposed upon Father, as the noncustodial parent, to establish that the children will not sustain detriment by the proposed move, and that the out-of-state move-away will serve their best interests”.
Quoting an earlier decision from the California Supreme Court, the Court of Appeal said “the paramount need for continuity and stability in custody arrangements –and the harm that may result from disruption of established patterns of care and emotional bonds with the primary caretaker –weigh heavily in favor of maintaining ongoing custody arrangements”. In this case, the justices noted, the trial court abused its discretion without considering the relevant factors identified by the state Supreme Court about 11 years earlier and which include the children’s ages and possibly their wishes; their health and educational needs; their attachment with each parent; the anticipated impact of the move upon the children’s social, educational and familial relationships; and each parent’s willingness to cooperate with the other. Those factors were identified by the Supreme Court in its 2004 case, In re Marriage of LaMusga.
As a result of all of this analysis, the justices ordered the trial judge to “vacate” (i.e., cancel) her order sending the kids to Alabama and to conduct another hearing regarding appropriate visitation and custody orders consistent with the justices’ analysis.
This case arose out of Orange County, but the case was certified by the Court of Appeal for publication, meaning that it can be cited as precedent by judges and lawyers throughout California. The division of the Court of Appeal that heard the case is based in Santa Ana, but there are branches of the Court of Appeal throughout the state, including the Fourth District Court of Appeal (Division One) in downtown San Diego. Attorney Marjorie Fuller represented the mother in the Orange County case. The dad was represented by Cara Hagan and Shannon Williams. The judge who was reversed was the Hon. Debra Carrillo of Orange County.
In her ruling, Judge Carrillo conceded that her order was automatically stayed by 30 days because of a special rule in California that says relocation orders sending the children outside of California do not go into effect until 30 days after the order is entered. But, of course, that was little comfort to the panicked mother who was faced with a move of the children to such a far away place.
It is also important to note that writs involving child custody and visitation are like emergency room surgery. Even if you have a good case, you have to act quickly. After all, a writ is different from a regular appeal because of the argument that irreparable harm is at stake. A transcript, if available, of the trial court hearing needs to be ordered and a well written argument to the Court of Appeal has to be quickly prepared. In this case, it looks like the writ was filed on March 10, 2015, about four weeks after the trial court hearing.
A betting person might say that there is no way, absent the arrest of the custodial parent or some calamity like that, that a court would simply order a change of custody, in the middle of the school year, to a different state. Especially one that is 2000 miles away. And these kids were/are 12 and 9. They are old enough to have friends as well as trusted adults in California. They might have been traumatized by the possibility of the move.
All of this goes to show you that, as in all court matters, “you never know”. Which is why having skilled and experienced attorneys at both the trial level and at the appeals level is so important.
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