ANA MARIE BURCHARD, Plaintiff and Appellant, v. WILLIAM GARAY, Defendant and Respondent.
L.A. No. 31957
Supreme Court of California
Sept. 22, 1986
531
Gary C. Wunderlin and Allard, Shelton & O‘Connor for Plaintiff and Appellant.
Arnold H. Johnson for Defendant and Respondent.
OPINION
BROUSSARD, J.-This case concerns the custody of William Garay, Jr., age two and one-half at the date of trial. Ana Burchard, his mother, appeals from an order of the superior court awarding custody to the father, William Garay.
As a result of a brief liaison between Ana and William, Ana became pregnant. Early in her term she told William that she was pregnant with his child, but he refused to believe that he was the father. William, Jr., was born on September 18, 1979.
After the birth, Ana undertook the difficult task of caring for her child, with the help of her father and others, while working at two jobs and continuing her training to become a registered nurse. William continued to deny paternity, and did not visit the child or provide any support.
In the spring of 1980 Ana brought a paternity and support action. After court-ordered blood tests established that William was the father, he stipulated to paternity and to support in the amount of $200 a month. Judgment entered accordingly on November 24, 1980. In December of that year William visited his son for the first time. In the next month he moved in with Ana and the child in an attempt to live together as a family; the attempt failed and six weeks later he moved out.
William asked for visitation rights; Ana refused and filed a petition for exclusive custody. William responded, seeking exclusive custody himself.
At the onset of the hearing Ana requested a ruling that William must prove changed circumstances to justify a change in custody. William opposed the motion, arguing that the court need only determine which award would promote the best interests of the child. The court deferred ruling on the motion. The evidence at the hearing disclosed that William, Jr., was well adjusted, very healthy, well mannered, good natured, and that each parent could be expected to provide him with adequate care.
After hearing the evidence, the court issued a statement of decision in which it impliedly ruled that the changed-circumstance rule did not apply because “there has been no prior de facto nor de jure award of custody to either parent.” Applying the “best interests” test, it awarded custody to William. Its decision appears to be based upon three considerations. The first is that William is financially better off-he has greater job stability, owns his own home, and is “better equipped economically ... to give constant care to the minor child and cope with his continuing needs.” The second is that William has remarried, and he “and the stepmother can provide constant care for the minor child and keep him on a regular schedule without resorting to other caretakers“; Ana, on the other hand, must rely upon babysitters and day care centers while she works and studies. Finally, the court referred to William providing the mother with visitation, an indirect reference to Ana‘s unwillingness to permit William visitation.
Pursuant to the court order William took custody of the child on August 15, 1982. Ana appealed from the order, and sought a writ of supersedeas. The Court of Appeal, however, denied supersedeas and subsequently affirmed the trial court‘s order. We granted a hearing in August 1984. Ana did not seek supersedeas, and William, Jr., remained in his father‘s custody pending this appeal.
We begin with a brief summary of our decision. The petition for hearing raised the question whether the changed-circumstance rule applies in a case such as this. We conclude that it cannot apply. The rule requires that one identify a prior custody decision based upon circumstances then existing which rendered that decision in the best interest of the child. The court can then inquire whether alleged new circumstances represent a significant change from preexisting circumstances, requiring a reevaluation of the child‘s custody. Here there is no prior determination; no preexisting circumstances to be compared to new circumstances. The trial court has no alternative but to look at all the circumstances bearing upon the best interests of the child.
Upon beginning a more detailed analysis, we first consider the function of the changed-circumstance rule in child custody proceedings. In deciding between competing parental claims to custody, the court must make an award “according to the best interests of the child” (
“The change of circumstances standard is based on principles of res judicata.” (Sharp, Modification of Agreement-Based Custody Decrees: Unitary or Dual Standard? (1982) 68 Va.L.Rev. 1263, 1264, fn. 9.) The rule established in a majority of jurisdictions, which we here endorse, applies that standard whenever custody has been established by judicial decree.1 A minority of states limit the standard further, applying it only when custody was determined through an adversarial hearing.2 No state, so far as we have
Ana argues that the trial court erred in failing to apply the changed-circumstance rule in the present case. But on close review of her argument it becomes clear that Ana does not claim that there has been a prior custody determination, and that the court should have examined only events which occurred subsequent to that determination. Instead, she argues simply that because she has had custody for a significant period, she and William do not start on an equal basis; instead, he should have the burden of persuading the court that a change in custody is essential or expedient for the welfare of the child. We agree in substance with this argument: in view of the child‘s interest in stable custodial and emotional ties, custody lawfully acquired and maintained for a significant period will have the effect of compelling the noncustodial parent to assume the burden of persuading the trier of fact that a change is in the child‘s best interest. That effect, however, is different from the changed-circumstance rule, which not only changes the burden of persuasion but also limits the evidence cognizable by the court.
We illustrate this distinction by reference to In re Marriage of Carney, supra, 24 Cal.3d 725, the case Ana cites when she contends that the changed-circumstance rule can apply without a prior custody determination. When William and Ellen Carney separated in 1972, they entered into a written agreement under which Ellen relinquished custody of their two sons to William. In 1976 William was severely injured, his legs paralyzed, and the use of his hands and arms impaired. When in 1977 William filed for dissolution of the marriage, Ellen requested sole custody of the children, although she had not seen them nor contributed to their support since 1972. The trial court granted her request on the ground that William, because of his handicap, would be unable to have a normal father-son relationship with his boys.
Our opinion first noted that the statutory preference for maternal custody of a child of tender years has been repealed; under
The trial court‘s conclusion that William‘s handicap would prevent him from raising his children properly, we found, was based not upon the evidence at trial, but upon a misunderstanding concerning the capabilities
The Carney decision, it is clear, did not turn on any difference in result between the changed-circumstance rule and the best-interest standard. We spoke in terms of changed circumstances simply because William Carney‘s injury occurred after he had held custody for a significant time. There is not the slightest suggestion that the best interests of the children required an award to the mother, and that she lost only because she did not also prove a significant change in circumstances.
In sum, Carney had nothing to say on the importance of protecting prior custody determinations by forbidding the courts from reconsidering the circumstances which led to those determinations. Instead, it spoke of the importance of protecting established modes of custody, however created, not by limiting the breadth of the evidence, but by requiring the noncustodial party to show that a change would be in the best interests of the child. Consequently, we do not read Carney as requiring use of a changed-circumstance test in cases where there has been no prior custody determination, but as one affirming the importance of stability in custody arrangements, placing the burden upon the person seeking to alter a long-established arrangement.
The contrary view of Carney-that it extends the changed-circumstance rule to protect a “de facto” custody3-is in our opinion unsound, unworkable, and potentially harmful. It is unsound because, absent some prior determination of the child‘s best interests as of some past date, the courts have no warrant to disregard facts bearing upon that issue merely because
In most cases, of course, the changed-circumstance rule and the best-interest test produce the same result. When custody continues over a significant period, the child‘s need for continuity and stability assumes an increasingly important role.6 That need will often dictate the conclusion that maintenance of the current arrangement would be in the best interests of that child. But there will be occasional cases where it makes a difference. Consider, for example, a case in which a couple separate, and in the emotional turmoil of the separation the less suitable spouse takes custody of the child. In a later custody proceeding, the noncustodial parent may be able to prove that the custodial parent is unable to provide proper care, but not that his or her ability to do so has deteriorated since the separation. In such a case the changed-circumstance rule might require the court to confirm a custody not in the best interest of the child. Or, to take another example, a child may be born out of wedlock to a woman who for some reason is
We conclude that custody in the present case should be decided on the basis of the best interests of the child without requiring William to prove in addition that changed circumstances render it essential that he receive custody. We therefore turn to examine the decision of the trial court to determine whether it abused its discretion in deciding that the best interests of the child required it to award custody to William.
The trial court‘s decision referred to William‘s better economic position, and to matters such as homeownership and ability to provide a more “wholesome environment” which reflect economic advantage. But comparative income or economic advantage is not a permissible basis for a custody award. “[T]here is no basis for assuming a correlation between wealth and good parenting or wealth and happiness.” (Klaff, The Tender Years Doctrine: A Defense (1982) 70 Cal. L. Rev. 335, 350; see Mnookin, Child Custody Adjudication: Judicial Function in the Face of Indeterminacy (1975) 39 Law. & Contemp. Probs. 226, 284.) If in fact the custodial parent‘s income is insufficient to provide proper care for the child, the remedy is to award child support, not to take away custody.
The court also referred to the fact that Ana worked and had to place the child in day care, while William‘s new wife could care for the child in their
Any actual deficiency in care, whether due to the parent‘s work or any other cause, would of course be a proper consideration in deciding custody. But the evidence of such deficiencies in the present case is very weak-the testimony of William, disputed by Ana, that on one occasion Ana left the child alone briefly while she cashed a support check, and that sometimes the child was delivered for visitation in clothes that were shabby or too small. But these matters are trivial. The essence of the court‘s decision is simply that care by a mother who, because of work and study, must entrust the child to daycare centers and babysitters, is per se inferior to care by a father who also works, but can leave the child with a stepmother at home. For the reasons we have explained, this reasoning is not a suitable basis for a custody order.
The trial court recited other grounds for its order. One was that William was “better equipped psychologically” to care for the child. Ana has had emotional problems in the past, and reacted bitterly to the separation, but William‘s conduct has not been a model of emotional maturity. After they separated, Ana objected to William seeing the child and did not communicate about matters involving the child.11 But after William obtained custody pursuant to the trial court‘s order, he proved equally obdurate to Ana‘s
All of these grounds, however, are insignificant compared to the fact that Ana has been the primary caretaker for the child from birth to the date of the trial court hearing,12 that no serious deficiency in her care has been proven, and that William, Jr., under her care, has become a happy, healthy, well-adjusted child. We have frequently stressed, in this opinion and others, the importance of stability and continuity in the life of a child, and the harm that may result from disruption of established patterns of care and emotional bonds. The showing made in this case is, we believe, wholly insufficient to justify taking the custody of a child from the mother who has raised him from birth, successfully coping with the many difficulties encountered by single working mothers. We conclude that the trial court abused its discretion in granting custody to William, Sr., and that its order must be reversed.
We acknowledge the anomalous position of an appellate court, especially a supreme court, in child custody appeals. Over four years have passed since the trial court awarded custody to William. Our decision reversing that order returns the case to the trial court which, in deciding the child‘s future custody, must hold a new hearing and determine what arrangement is in the best interests of the child as of the date of that hearing. (See In re Marriage of Carney, supra, 24 Cal.3d 725, 741; In re Marriage of Russo (1971) 21 Cal.App.3d 72, 93-94 and cases there cited.) Thus, the effect of our decision is not to determine finally the custody of William, Jr., but is to relieve Ana of the adverse findings of the trial court and of the burden of proving changed circumstances since the trial court order, and to make clear that in deciding the issue of custody the court cannot base its decision upon the relative economic position of the parties or upon any assumption that the care afforded a child by single, working parents is inferior.
The order is reversed.
Bird, C. J., Reynoso, J., and Grodin, J., concurred.
BIRD, C. J., Concurring.--I write separately to underscore that the trial court‘s ruling was an abuse of discretion not only in its failure to give due weight to the importance of continuity and stability in custody arrangements but in its assumption that there is a negative relation between a woman‘s
The trial court‘s primary reason for awarding custody to William was that Ana worked and had to place her child in day care, while William could afford to have his new wife quit her job and stay home. The court‘s other reason was William‘s larger income. No other facts appear in the record to justify the court‘s ruling. Today‘s decision ought to make it crystal clear that neither of these reasons is a proper basis for an award of custody.
Read in light of the record, the court‘s findings amount to “outmoded notions of a woman‘s rule being near hearth and home.” (Gulyas v. Gulyas (1977) 75 Mich.App. 138 [254 N.W.2d 818, 823] (dis. opn. of Riley, J.).) In an era where over 50 percent of mothers1 and almost 80 percent of divorced mothers2 work, this stereotypical thinking cannot be sanctioned. When it is no longer the norm for children to have a mother at home all day, courts cannot indulge the notion that a working parent is ipso facto a less satisfactory parent. Such reasoning distracts attention from the real issues in a custody dispute and leads to arbitrary results.
The court‘s reliance on the father‘s greater income was equally inappropriate. The child‘s best interests-especially when the child is very young-cannot be assessed in such materialistic terms. “[T]here is no basis for assuming a correlation between wealth and good parenting or wealth and happiness.” (Klaff, The Tender Years Doctrine: A Defense (1982) 70 Cal.L.Rev. 335, 350; see Dempsey v. Dempsey (1980) 96 Mich.App. 276 [292 N.W.2d 549, 554], mod. 409 Mich. 495 [296 N.W.2d 813].) In fact, common experience suggests that there is no such correlation.
Stability, continuity, and a loving relationship are the most important criteria for determining the best interests of the child. (Maj. opn., ante, at pp. 538, 541.) Implicit in this premise is the recognition that existing emotional bonds between parent and child are the first consideration in any best-interests determination.
This court acknowledged that fact when it recently held that a parent‘s physical handicaps were irrelevant to “the heart of the parent-child rela-
When the record contains no evidence as to which parent does provide this care, clearly the “working mother” factor operates as a negative presumption. Even more clearly, this factor operates unfairly when the record indicates that the mother has in fact been the primary caregiver. The use of such a presumption as a basis for a custody award is of dubious constitutionality.3
Furthermore, the presumption is inappropriate because the relationship between maternal employment and the “presumed facts” about the child‘s best interests is not supported by reason or experience. Typically, it is the mother who provides most day-to-day care, whether or not she works outside the home. (Neely, The Primary Caretaker Parent Rule: Child Custody and the Dynamics of Greed (1984) 3 Yale L. & Policy Rev. 168, 172; cf. Klaff, op. cit. supra, 70 Cal.L.Rev. at p. 344, fn. 56.) A presumption which ignores this fact is likely to lead to erroneous and unfair decisions.
Moreover, there is no accepted body of expert opinion that maternal employment per se has a detrimental effect on a child. On the contrary, one recent study on maternal employment and child development has concluded that “[m]aternal employment status had no negative relation to children‘s development over a 5-year period. Public policy needs to move in the direction of more flexible work arrangements for mothers, towards enhancing the quality of the environment provided for children, towards enhancing the personal satisfaction of careers for women, and towards promoting the view that maternal employment has no negative influence on children‘s development.” (Gottfried et al., op. cit. supra.) Thus, the trial court‘s presumption lacks any expert support.
Yet, under the trial court‘s rationale, it is the mother-and not the father-who would be penalized for working out of the home. She and she alone would be placed in this Catch-22 situation. If she did not work, she could not possibly hope to compete with the father in providing material advantages for the child. She would risk losing custody to a father who could provide a larger home, a better neighborhood, or other material goods and benefits.5
The double standard appears again when, as here, the father is permitted to rely on the care which someone else will give to the child. It is not
The reasons on which this trial court relied are discriminatory. They fall unequally on women and men. They penalize women for failing to conform to a 19th century role which is no longer possible or desirable for many. They imply that a woman who leaves her “proper sphere” to participate fully in modern life cannot be an adequate mother. Such a view denies full humanity to women. It cannot be tolerated in our courts.
To force women into the marketplace and then to penalize them for working would be cruel. It is time this outmoded practice was banished from our jurisprudence.
MOSK, J.-I concur in the reversal of the trial court order, but strongly disagree with the manner in which the majority reach that result-especially their tacit and far from candid overruling of In re Marriage of Carney (1979) 24 Cal.3d 725, and their denial of needed protection to an entire class of children solely because custody was not originally established by judicial decree.
In Carney a unanimous court held that regardless of how custody was originally established, a child will not be removed from the custody of one parent and given to the other unless the noncustodial parent shows that material facts and circumstances occurring subsequently are of a kind to render a change essential or at least expedient for the welfare of the child. (Id., at pp. 730-731.) Put simply, the rule requires the proof of two ultimate facts: (1) a change in circumstances and (2) the present necessity for a change in custody.
In its two requirements the changed-circumstances rule serves two distinct objectives: the finality of judgments and the best interests of the child-in particular, his well recognized right to stability and continuity. (Ibid.; Connolly v. Connolly (1963) 214 Cal.App.2d 433, 436.) In
The majority‘s reading of Carney as not extending the protection of the changed-circumstances rule to so-called “de facto” as well as “de jure” custody is sheer sophistry. In Carney we expressly held that the rule applied “regardless of how custody was originally decided upon. . . .” (24 Cal.3d at p. 731, fn. 4.) We imposed on the noncustodial mother the burden of proving that a substantial change in circumstances had occurred. (Id. at p. 731.) And we concluded that she had not carried her burden. (Id. at p. 740.) It is difficult for me to conceive how we could have established the point more clearly. While I welcome the majority‘s generous quotations from the text of the Carney opinion, family law would have been better served if they had followed the principle declared therein.
More troubling, the majority‘s tacit overruling of Carney and its consequent limitation of the changed-circumstances rule to cases in which custody was originally established by judicial decree have untoward consequences and are unsound.
First, the limited application of the changed-circumstances rule that the majority adopt is in conflict with the primary purpose of the rule. The child whose custody was established by means other than judicial decree has the same need for and right to stability and continuity-and accordingly the same entitlement to the protection the rule is intended to provide-as the child whose custody was established by judicial decree. Because it is not unreasonable to assume that the children of two-parent and relatively more affluent families are disproportionately represented in the class of children whose custody was originally established by judicial decree, the majority‘s holding, I fear, will effectively deny needed protection disproportionately to children of single-parent and less affluent families.
Second, most states-including, until today, California-appear to require “changed circumstances” to modify custody regardless of how custody was originally established. (See Sharp, supra, 68 Va.L.Rev. at pp. 1265, 1268-1271, and cases and other authorities cited.) The rationale for this position was explained in Carney: “regardless of how custody was originally decided upon, after the child has lived in one parent‘s home for a significant period
The majority claim that the Carney rule is “unsound, unworkable, and potentially harmful.” Their argument in support, however, is hollow.
Their first point is that the Carney rule “is unsound because, absent some prior determination of the child‘s best interests as of some past date, the courts have no warrant to disregard facts bearing upon that issue merely because such facts do not constitute changed circumstances.” But if the Carney rule is unsound for this reason, so is their newly created rule: even in cases in which custody is established by judicial decree, such a determination is seldom made.
In virtually all cases, it appears, the parents decide on custody in a negotiated settlement and thus do not dispute the question at a hearing. (See Sharp, supra, 68 Va.L.Rev. at pp. 1263-1264; accord, Mnookin & Kornhauser, Bargaining in the Shadow of the Law: The Case of Divorce (1979) 88 Yale L.J. 950, 951, fn. 3 [hereafter Mnookin & Kornhauser]; Kirshner, Child Custody Determination-A Better Way! (1978-1979) 17 J. Fam. L. 275, 286; Mnookin, Child-Custody Adjudication: Judicial Function in the Face of Indeterminacy (1975) 39 Law & Contemp. Probs. 226, 232, fn. 22.) And in these cases “courts usually ‘rubber-stamp’ such agreements . . . .” (Sharp, supra, at p. 1279; see Mnookin & Kornhauser, supra, at p. 955, fn. 22; Kirshner, supra, at p. 286; Hansen, The Role and Rights of Children in Divorce Actions (1966) 6 J. Fam. L. 1, 2.) The percentage of cases in which a trial court initially determines custody in a contested manner is minuscule.
But the fact remains that even when custody is not adjudicated and indeed even when it is not established by judicial decree, we may nevertheless presume that such custody is in the child‘s best interest and as a result require the noncustodial parent to show that a material change of circumstances has subsequently occurred.
Such a presumption is justified when custody is established by agreement. “First, most parents genuinely love their children, and it is reasonable to
Such a presumption is also justified when, as here, custody is established by default rather than by decision. First, as between the parent who undertakes to provide care and the parent who fails or refuses to do so, custody with the former must be deemed to serve the child‘s best interests. Thus, it is altogether reasonable to require the latter to demonstrate changed circumstances should he subsequently attempt to obtain custody. Second, as Dr. Andrew Watson, psychiatrist and professor of law, has observed, stability is “practically the principal element in raising children” and “a child can handle almost anything better than he can handle instability.” (Proceedings of Special Com. on U. Marriage and Divorce Act, Nat. Conf. of Comrs. on U. State Laws 98, 101 (Dec. 15-16, 1968); accord, Bodenheimer, The Uniform Child Custody Jurisdiction Act: A Legislative Remedy for Children Caught in the Conflict of Laws (1969) 22 Vand.L.Rev. 1207, 1208-1209; see Watson, Psychiatry for Lawyers (1968) pp. 159, 197; Sharp, supra, 68 Va.L.Rev. at pp. 1280-1281; see also Clark, Law of Domestic Relations (1968) § 11.5 at p. 326 [“if [a child] is continually being transferred from one parent to the other . . . he may be a great deal worse off than if left with one parent, even though as an original proposition some better provision could have been made for him“].)
The majority‘s second point is that the Carney rule “is unworkable because, . . . absent such a prior determination the courts have no established basis on which they can assess the significance of any change.” But “Identification of a base line against which to measure a subsequent change of conditions is not as difficult as the [majority] suggest. The simple fact is that a demonstration of changed conditions does not normally require a preexisting record of all the facts that prevailed at the time [custody was originally established]. . . . [¶] It is plausible therefore to suggest that the concern about the necessity for a prior record is somewhat of a red herring.” (Sharp, supra, 68 Va.L.Rev. at pp. 1285, 1287.)
The majority‘s final point is that the Carney rule “is potentially harmful because it could compel the court to make an award inconsistent with the
We ourselves have recognized that such an accommodation is possible. In Munson v. Munson (1946) 27 Cal.2d 659, 666, we stated: “This court has recognized [citation] that generally ‘until some change of circumstances arises which makes a modification of the former order of custody advisable from the point of view of the welfare of the child, the court will give effect to the former order and will refuse to make any modification of such order,’ but that there may be cases ‘in which, despite the fact that there was apparently no change of circumstances, nevertheless, the welfare of the child might require that the previous order of custody be changed’ . . . .”
In any case in which it is used, the changed-circumstances rule, if applied mechanically, might serve to lock a child into a bad situation. To prevent such a result-the goal the majority strive for but miss-I would adopt, in the proper case, the following limited exception: when the noncustodial parent shows that custody has remained unchanged but inadequate since its inception, he need prove only that a change is essential or at least expedient for the welfare of the child in order to obtain custody. Such an exception is of course consistent with the primary purpose of the rule, furthering as it does the child‘s best interests. It is also compatible with the flexible nature of the changed-circumstance rule. (See Foster v. Foster (1937) 8 Cal.2d 719, 728; accord, Munson v. Munson, supra, 27 Cal.2d at p. 666.)1
Lucas, J., concurred.