In re Marriage of Vargas & Ross
C082867
| Cal. Ct. App. | Dec 4, 2017Background
- Parents are U.S. Air Force members who divorced in 2013 and share joint legal custody of two children; custody has shifted with deployments and relocations (South Carolina, Korea, Florida, Wyoming).
- Mother was deployed to Korea in 2013, later sought sole custody and proposed the children live with her mother in Nevada; court instead granted father sole physical custody while mother had electronic access and visitation when stateside.
- Parents mediated and the court adopted a January 2015 agreement leaving children primarily with father but granting mother specified parenting time and summer placement in Wyoming.
- In 2015 mother sought custody for the 2015–2016 school year; mediators conflicted, the trial court ordered a “full move-away analysis,” and initially found Family Code §3047 inapplicable to an earlier deployment.
- After father’s October 2015 deployment, the court granted mother temporary physical custody under §3047; upon father’s return, the court (August 4, 2016) applied §3047’s presumption and reverted custody to father despite stating a straight best-interest analysis favored mother.
- Mother appealed, arguing the trial court applied the wrong legal standard in interpreting §3047; the Court of Appeal vacated the order and remanded for a best-interest determination consistent with §3047.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Family Code §3047 creates a different or heightened best-interest standard on reversion after military deployment | Vargas: §3047 does not change the ordinary best-interest standard; mother argued the court should apply regular best-interest factors and that she had shown reversion would not be in the children’s best interest | Ross: The court treated §3047 as creating a presumption favoring the returning deployed parent and requiring heightened deference to reversion to the pre-modification order | The court held §3047 does not alter the controlling best-interest standard; the trial court misapplied §3047 by treating it as a different or heightened test and must evaluate custody under ordinary best-interest principles, although §3047 creates a presumption favoring reversion and shifts burden to the opposing parent to show reversion is not in the child's best interest. |
Key Cases Cited
- Montenegro v. Diaz, 26 Cal.4th 249 (Cal. 2001) (best interest of the child is the overarching concern in custody disputes)
- In re Marriage of LaMusga, 32 Cal.4th 1072 (Cal. 2004) (enumeration of best-interest factors and preference for parent who facilitates contact)
- Marriage of E.U. v. J.E., 212 Cal.App.4th 1377 (Cal. Ct. App. 2012) (discussed as adopting a limited inquiry under §3047; Court of Appeal here disapproves of treating §3047 as a different substantive standard)