In re the MARRIAGE OF Susan and Gary LAMUSGA.
Susan Poston Navarro, Appellant,
v.
Gary Lamusga, Respondent.
Supreme Court of California.
*358 Law Office of Kim M. Robinson, Kim M. Robinson and Eric H. Zagrans for Appellant.
Vicky L. Barker and Marci Fukuroda for California Women's Law Center, California Women Lawyers, Coalition for Family Equity, California Federation of Business and Professional Women, California National Organization for Women, The Feminist Majority Foundation, Children Now, California Alliance Against Domestic Violence, National Coalition Against Domestic Violence, National Network to End Domestic Violence, San Francisco Women Lawyer's Alliance, Queen's Bench Bar Association of the San Francisco Bay Area, Women Lawyers Association of Los Angeles, Lawyers Club of San Diego, Women For:, National Council of Jewish Women/Los Angeles, Women's Equal Rights Legal Defense and Education Fund, Asian Pacific American Legal Center, Arizona Coalition Against Domestic Violence, Iowa Coalition Against Domestic Violence, Minnesota Program Development Inc., New Jersey Coalition for Battered Women and Pennsylvania Coalition Against Domestic Violence as Amici Curiae on behalf of Appellant.
Law Offices of Joanne Schulman and Joanne Schulman for Margaret A. Gannon, Cheryl Sena, Carole Cullum, Joanne Schulman, Deborah Appel, Patricia Wagner, Leslie Knight, Gloria Sandoval, Stand! Against Domestic Violence, Roy F. Malahowski, Barbara Hart, Lynne Arrowsmith, Nina Balsam, Andrea Farney, Diane Post and Anne Thorkelson as Amici Curiae on behalf of Appellant.
Law Offices of Tony J. Tanke and Tony J. Tanke for Judith S. Wallersten, Paulina F. Kernberg, Joyanna Lee Silberg, Julia M. Lewis, John B. Sikorski and Stephanie Joan Dallam as Amici Curiae on behalf of Appellant.
Carol S. Bruch, Scott Altman, Edward Imwinkelried and Mary Ann Mason for Herma Hill Kay, Grace Ganz Blumberg, Carol S. Bruch, Janice E. Kosel, Frances Olsen, Joan Heifetz Hollinger, Mary Ann Mason, D. Kelly Weisberg, Jan C. Costello, Sheila James Kuehl, John E.B. Myers, Lisa C. Ikemoto, Scott Altman and Janet Bowermaster as Amici Curiae on behalf of Appellant.
Garrett C. Dailey, Oakland, and Steven A. Greenfield for Respondent.
Leanne Schlegel for Minors.
Donald S. Eisenberg, Glendora, for Constance R. Ahrons, William G. Austin, Sanford L. Braver, James H. Bray, Dr. David *359 Demo, Robert Emery, Dr. William V. Fabricius, Dr. Michael Gottlieb, Dr. John Guidubaldi, Dr. Joan B. Kelly, Marsha Kline Pruett, Dr. Michael E. Lamb, Dr Jay Lebow, Dr. Patrick McKenry, Dr. Kay Pasley, Isolina Ricci, John W. Santrock, Dr. Richard A. Warshak, Sidney J. Brown, James R. Flens, Michael A. Fraga, Lyn R. Greenberg, Dr. Neil S. Grossman, Leslye Hunter, Eva Baranoff McKenzie, Nancy Williams Olesen, Gary R. Rick and Jan Tyler as Amici Curiae on behalf of Minors.
Leslie Ellen Shear for Association of Certified Family Law Specialists, Marjorie G. Fuller, Nancy Williams Olesen, Pamela Panasiti Stettner, Michael E. Lamb, Dawn Gray, Joan B. Kelly, Lawrence E. Leone, William G. Austin, Constance R. Ahrons, Harold J. Cohn, Sanford L. Braver, Frieda Gordon, James M. Hallett, Sidney J. Brown, Lynette Berg Robe, Michael Gottlieb, Tammy-Lyn Gallerani, Richard A. Warshak, Kenneth C. Cochrane, Neil S. Gossman, David R. Lane, Maureen Stubbs, Fred Norris, Dianna Gould-Saltman, Carol Silbergeld, Susan Ratzkin, Jeffrey M. Lulow, Dale S. Frank, Leslye Hunter, Ronald S. Granberg, James R. Flens, Rebekah A. Frye, Renée A. Cohen, Tracy Duell-Cazes, Marnee W. Milner, Jacqueline Singer, Erica L. Hedlund, James Livingston, Josephine A. Fitzpatrick, Michael A. Fraga, Timothy C. Wright, Avery Cooper, Lawrence W. Thorpe, Trevor C. Thorpe, Steven R. Liss, Mark J. Warfel, John R. Schilling and Mary McNeil as Amici Curiae on behalf of Minors.
*357 MORENO, J.
In In re Marriage of Burgess (1996)
In the present case, the superior court ordered that primary physical custody of two minor children would be transferred from their mother to their father if their mother moved to Ohio. The Court of Appeal reversed, holding that if the custodial parent "has a good faith reason to move ... the custodial parent cannot be prevented, directly or indirectly, from exercising his or her right to change the child's residence" unless the noncustodial parent makes a "substantial showing" that a change of custody is "essential" to prevent detriment to the children. We granted review to determine whether the Court of Appeal in the present case misapplied our holding in Burgess. We conclude that it did and reverse its judgment.
As explained below, we conclude that just as a custodial parent does not have to establish that a planned move is "necessary," neither does the noncustodial parent have to establish that a change of custody is "essential" to prevent detriment to the children from the planned move. Rather, the noncustodial parent bears the initial burden of showing that the proposed relocation of the children's residence would cause detriment to the children, requiring a reevaluation of the children's custody. The likely impact of the proposed move on the noncustodial parent's relationship with the children is a relevant factor in determining whether the move would cause detriment to the children and, when considered in light of all of the relevant factors, *360 may be sufficient to justify a change in custody. If the noncustodial parent makes such an initial showing of detriment, the court must perform the delicate and difficult task of determining whether a change in custody is in the best interests of the children.
The father in the present case satisfied his initial burden of showing that the mother's planned move would cause detriment to the children, requiring a reevaluation of the children's custody. The superior court properly considered the relevant factors and did not abuse its discretion in deciding that a change in primary custody from the mother to the father would be in the best interests of the children if the mother moves to Ohio.
I. Facts
Susan and Gary LaMusga married on October 22, 1988, and had two children: Garrett, who was born on May 5, 1992, and Devlen, who was born two years later to the day on May 5, 1994. The mother filed an amended petition for dissolution of marriage on May 10, 1996, and requested sole physical custody of the children, who were living with her in the family residence. The father objected and requested joint legal and physical custody.
The parties were unable to agree on a visitation schedule and, pursuant to a court order, stipulated to the appointment of Philip Stahl, Ph.D, a licensed psychologist, to conduct a child custody evaluation. Pending this evaluation, the parties agreed to a visitation schedule under which the children would be with their father every Wednesday from 3:30 p.m. to 7:30 p.m. and Sunday from 10 a.m. to 5 p.m. The mother asserted that even this limited visitation with the father was detrimental to the children, causing Garrett to become overly aggressive, disorganized, unfocused, and to regress in toilet training, and causing Devlen to develop a facial tick, a stutter, and a squint.
In a report dated October 10, 1996, Dr. Stahl observed that "there has been a great deal of verbal hostility between Mr. and Mrs. LaMusga for years, at times escalating to some pushing and shoving between them.... Both acknowledge that communication has deteriorated completely and that there is no trust between them. Mrs. LaMusga is concerned that Mr. LaMusga lives in an unsafe environment, doesn't take adequate care of the boys and is not responsive to their needs. She would prefer that his time be even more limited."
"Additionally, Ms. LaMusga has expressed a desire to move with the boys to the Cleveland, Ohio, area.... [¶] In contrast, Mr. LaMusga is quite upset that she wants to take the boys to Cleveland, and describes the environment there as hostile to him. He believes that Ms. LaMusga has attempted to alienate him from both the boys and ... is quite concerned that, if she does get to move, he'll end up having no relationship with his boys whatsoever."
Dr. Stahl opined that, in general, both the mother and the father were "good enough parents," but noted that the mother was "struggling with supporting and encouraging frequent and continuing contact between" the children and their father. Dr. Stahl believed that "each parent has different positive qualities to give to the children and that it is in the children's best interest to maintain a relationship with each of them as they continue to grow." But he noted his concern "about the dynamic of conflict between Mr. and Ms. LaMusga and its impact on the children. They don't speak to one another, their conflict does filter down to the children, and the children do show some evidence of anxiety related to this. Additionally, their charges and counter-charges *361 reflect the extent to which both parents are willing to go to make the other look bad, something that is clearly detrimental to Garrett and Devlen.... [T]he conflict level between the parents is the single-most significant problem, and it has been going on for years."
Dr. Stahl stated that the mother's desire to move to Cleveland "must be balanced with the children's apparent need for frequent and continuing contact with their father and looked at in the context of the parental hostility. As we already observe, it appears that Ms. LaMusga has been reluctant to support additional time or overnight time with the boys and their father, even though they live less than five miles apart. She has been reluctant to support consistent phone calls, as well. As indicated, Ms. LaMusga has concerns about the boys and their functioning and she has chosen to respond to these concerns with efforts at keeping Mr. LaMusga's time rather limited. Additionally, it is this examiner's observation that Ms. LaMusga sees little or no negative impact on the boys at the potential distance in their relationship with their father. While the likelihood of parental conflict will be significantly reduced on a day-to-day basis if Ms. LaMusga is in Cleveland (and that will likely benefit the boys), it is this examiner's observation that we must be concerned about Ms. LaMusga's willingness to follow through on regular and consistent visitation if she is half a country away. [¶] It is this examiner's opinion that the attachment between Garrett and Devlen and their father is strong. However, the children have not reached an age where they can maintain this attachment if they are away from him over long distance and time.... Thus, it is this examiner's observation that a move at this time would be difficult for the boys given their developmental needs. If we add the concern regarding Ms. LaMusga's follow through associated with the current level of conflict, a move might be difficult for the boys."
Following a hearing on November 14, 1996, the superior court awarded the parties joint legal custody of the children, with the mother having "primary physical custody."[1] With the mother's agreement, the father's visitation was increased over a period of months to a final schedule of every Tuesday and Wednesday from 4 p.m. to 7:30 p.m. and every other weekend from Friday at 5 p.m. to Sunday at 6 p.m. Judgment subsequently was entered dissolving the marriage as of December 31, 1997.
On July 6, 1998, the parties stipulated that during the summer, the father would have custody of the children from July 9-15 and August 21-27, 1998, and the mother would have custody of the children from July 17-23 and August 13-19, 1998. The preexisting custody and visitation schedule would apply at all other times. On November 15, 1998, the father filed an order to show cause to have the court establish a holiday visitation schedule, which it did by an order issued on December 8, 1998.
The mother subsequently married Todd Navarro and, on September 16, 1999, gave *362 birth to a daughter. The father also remarried. His wife, Karin, has a daughter from her prior marriage.
On February 13, 2001, the mother filed an order to show cause to modify the visitation order to permit her to relocate with the children to Cleveland, Ohio. She alleged that she had family in the Cleveland area and her husband had received an offer for a more lucrative job there. She noted in her supporting declaration that Dr. Stahl had been reappointed and was conducting an evaluation to determine whether the father's visitation should be increased.
The father objected to the mother's plan to move the children to Ohio and asked that primary custody of the children be transferred to him if the mother moved to Ohio. The father declared that the mother had attempted to alienate him from their sons since their separation and feared that moving the boys to Ohio would result in his "being lost as their father."
On February 26, 2001, Dr. Stahl submitted a supplemental report that did not address the mother's proposal to move to Ohio, which she had made less than two weeks earlier. Dr. Stahl stated that the parents were "at a continued impasse"; the father wanted "equal joint custody of the boys" while the mother wanted to discontinue the boys' midweek visits with their father. He reported some disturbing aspects of the boys' relationship with their father, noting that the boys were very critical of their father, but almost always in rather vague terms. Dr. Stahl observed, however, that the children "seemingly had a good time at their father's home." Once, Dr. Stahl "observed Devlen being affectionate with his dad, but he later denied it."
Dr. Stahl concluded that the boys were "alienated and split in their feelings toward their parents," in part because "[t]hey appear to be very aware of the conflicts between the parents" and appeared to take the mother's side. Dr. Stahl further concluded the children seemed to be "somewhat overindulged," stating: "With their extreme polarization and with their overindulged emotions, both Garrett and Devlen run the risk of having significant struggles emotionally, especially with their peers, and with authority figures. In addition, it is this examiner's impression that both the boys also struggle a bit with difficulties in self-image and feelings of inadequacy in comparison to others." He blamed this, in part, on "their parent's high conflict divorce." Dr. Stahl noted that the mother "does appear to be contributing to the alienation of the boys," although this alienation tended to be "covert" and "unconscious." He observed that the father was "somewhat self-centered and doesn't seem to deal with the boys' feelings that well."
Dr. Stahl recommended that the father be awarded longer periods of visitation and raised the possibility of transferring primary physical custody of the children to their father if the situation did not improve, stating: "Research suggests that alienated children do better with longer rather than shorter blocks of time with each parent, and also that it's helpful if fathers participate with children in the schooling.... I would recommend a schedule in which they are with their father every other week from Thursday after school until return to school on Monday morning and every other week from Thursday after school until Friday morning. Not only does this reduce the number of transitions that need to take place with the parents together, but it also broadens the blocks of time that they are with their dad. It also keeps mother as the primary parent, which is consistent for them." Dr. Stahl noted that if the situation *363 did not improve, he might recommend either "a truly joint custody arrangement" or giving "primary custody" to the father.
Following a hearing on March 19, 2001, the father's visitation was increased as recommended by Dr. Stahl. The court again reappointed Dr. Stahl "to provide a focused evaluation on the issue whether the relocation of the parties' two minor children is in the best interest of said children."
Dr. Stahl's June 29, 2001, supplemental report notes that the mother has wanted to move ever since the divorce but waited, at Dr. Stahl's urging, until the children were older. The move would improve her family's "economic standard of living, and ... inherent quality of life...." The mother "believes that she will have no difficulty supporting the boys in their relationship with their dad," asserting "that she has always supported the boys in their relationship with their dad, and that she is not a contributor to any alienation that the boys might feel. [¶] Not surprisingly, Mr. LaMusga doesn't see things the same way.... He is opposing the move, especially at this time, because he worries that the boys will regress in their relationship with him, especially after making tremendous progress in their work with Dr. Tuggle [the boys' therapist].... He feels strongly that a disruption now will break the bond that is developing."
Dr. Stahl was concerned "that the boys might not maintain any positive relationship with their dad if they move," noting that such a loss "would be significant." But he added that this "must be balanced with the potential losses that the boys might experience if their mother moves, and they stay," observing: "They have been in the primary care of their mother since the parents' divorce and they will likely have a significant loss [if] she moves without them. They also have a very close relationship with their sister Aisley, as well as Todd, and they will feel those losses as well. Third, they have their own desire to move.... If they don't move, they're likely to feel that their wishes aren't being heard." Dr. Stahl also observed that forcing the children to remain in California could cause them to further reject their father.
Dr. Stahl opined that if the boys were permitted to move to Ohio: "The primary loss for the boys will be related to the growing and improving relationship with their dad. I suspect that they'll have few problems adjusting to a new school, friends, or activities, but it may be hard for them to deal with the emerging change in their relationship with their dad. The relationship currently is tenuous at best, for all of the reasons I outlined in the original update, and it is unlikely that there will be no impact to their relationship.... [¶] The underlying risk, however, is that, with absence, they will regress to a more detached and disconnected state with their father. With regular and somewhat increased contact, there is improvement in the relationships. However, this improvement is tenuous, and I am concerned that the move will interrupt any progress that might be occurring at the present time."
Although the mother stated that she wanted to move to Ohio because that "is where she is originally from and where she has family support," Dr. Stahl suggested an additional motive: "Underneath, however, it has always appeared that [the mother] has wanted to move so that she can remove herself and take the boys from the day-to-day interactions with [the father]. She has difficulty dealing with him and prefers to have as little communication with him as possible."
"I am concerned about ways that she might inadvertently or unconsciously provoke loyalty conflicts, as the children are *364 all too aware of her negative dealings toward their father. Her contribution to the conflict is a major contribution to the boys' loyalty conflicts and alienation."
Acknowledging that there was "no good solution in this matter," Dr. Stahl observed that "there is a risk that both moving or not moving may create a significant change" in the children's relationship with their father, stating, "It's difficult to predict which way this will go. Mother believes that the boys will be less rejecting of their dad if they move and father believes that a move will put the nail in the coffin of their relationship. I suspect that neither of them is accurate and the actual reaction of the boys will be based on how the parents handle their issues over time.
"In fact, in my opinion, the critical issue will be mother's `real' behavior after the move takes place. If she acts as she says she will, the boys will talk with their father two or three times per week, and these conversations and communications will be substantive and not superficial. If she acts as she says she will, the boys will enjoy their father's periodic visits to Ohio. If she acts as she says she will, they will get on the plane and come to California for dad's custodial time, and they'll be ready to have a good time with their dad. If she acts as she says she will, it could be that the boys will actually improve in their relationship with their dad, and the gains being made now can continue. [¶] However, the risk is that she won't act as she says she will. If dad is correct, and mother's sister is going to foment the anger, there won't be any support in Ohio for her to act as she says she will. If that's the case, once they get to Ohio, he'll be correct that his relationship with the boys will regress...."
On August 23, 2001, a hearing was held in the superior court on the mother's request to move the children's residence to Ohio. The mother declared that her husband had accepted a position as sales manager at a Toyota dealership in Cleveland, Ohio in March 2001 and had been living in Cleveland with her family since then.
Dr. Stahl testified and responded to a question by the mother's counsel why the mother should not be permitted to move the children to Ohio, stating: "I think the reasons would be twofold: [¶] One, there is no evidence that I've seen in the five years that I've known this family that [the mother] will really do what she said she will do. In terms of being supportive of the boys' relationship with their father in a way that truly will reduce the loyalty conflicts and truly will help them, um, feel better about things with him. [¶] That would be one reason. [¶] The other is it is still a tenuous relationship. And in that it's a tenuous relationship, I'll stick with what I said in 1996: It makes it very difficult to to predict that it's likely to get better rather [than] stay tenuous or get worse if the move is allowed."
Dr. Stahl acknowledged that the father also bore some of the responsibility for his strained relationship with his sons, stating: "He gets frustrated and impatient sometimes." Dr. Stahl added that the father contributes to the children's alienation to the extent he perpetuates his conflict with the mother.
The superior court ruled as follows: "The issue is not whether either of these parents are competent and qualified to be custodial parents, I think the evidence indicates that they are. That is not the question. [¶] The question is whether there is sufficient evidence at this point to determine, one, that the best interests of the children is served by relocating with Mother to Ohio, or whether the best interests are served by the a change of physical custody if [the mother] is to relocate."
*365 The court acknowledged that the mother is not purposely trying to alienate the children from their father, but noted that the mother's inability to "let go" of her anger toward the father caused her to project those feelings onto their children and to reinforce the children when they expressed negative feelings toward their father. "That aligns the children with one parent and results in a strained or hostile relationship with the other parent." The court also acknowledged that this was not "a bad faith move away. I don't think this is an instance where [the mother is] attempting to relocate with the children for the specific purpose of limiting their contact or relationship with their father. I think it's far more subtle than that...."
"The primary importance, it seems to me at this point, is to be able to reinforce what is now a tenuous and somewhat detached relationship with the boys and their father.... [¶] I think the concerns about the relationship being lost if the children are relocated at this time are realistic.... [¶] Therefore, I think that a relocation of the children out of the State of California, the distance of 2000 miles is would inevitably under these circumstances be detrimental to their welfare. It would not promote frequent and continuing contact with the father, and I would deny the request to relocate the children. [¶] If [the mother] wishes to relocate to the state of Ohio, certainly she is entitled to do that. Should she choose to do so, then I would implement the recommendations contained in Dr. Stahl's supplemental report of June 29th of 2001 which would provide for the primary physical custody of the children, at least during the school year, to Mr. Lamusga.... [¶][I]f [the mother] decides not to relocate, then the existing custodial arrangement will remain."
The mother appealed and the Court of Appeal reversed the judgment. The Court of Appeal applied the deferential abuse of discretion standard of review we recognized in In re Marriage of Burgess, supra,
Shortly after we granted review, the mother filed a notice of abandonment of her appeal, supported by a declaration stating that she no longer intended to move to Ohio, but intended to move to Arizona instead. She asked this court to dismiss the appeal. The father objected. We denied the mother's motion to dismiss the appeal. The mother's counsel later sent to this court a copy of a letter dated July 8, 2003, informing the father that the mother and their children had moved to Arizona. Upon the request of the mother, and without objection by the father, we have taken judicial notice of an order of the superior court filed on August 29, 2003, permitting the children to live with the mother in Arizona "temporarily" pending our ruling in the present proceedings.
*366 Despite the fact that it appears that the mother no longer intends to move to Ohio, the matter under review is not moot. It remains possible that the mother could choose to move to Ohio, and she has changed the residence of the children to Arizona. Accordingly, the issue of whether it is in the children's best interests to modify the custody order if the mother changes the residence of the children is not moot. In any event, we may decline to dismiss a case that has become moot "where the appeal raises issues of continuing public importance. [Citations.]" (Lundquist v. Reusser (1994)
II. Discussion
In In re Marriage of Burgess, supra,
The superior court awarded the mother sole physical custody of the children and modified the father's visitation schedule. The court found "`that it is in the best interest of the minor children that the minors be permitted to move to Lancaster with the [mother] and that the [father] be afforded liberal visitation.'" (Burgess, supra,
We observed that "[i]n an initial custody determination, the trial court has `the widest discretion to choose a parenting plan that is in the best interest of the child.' (Fam.Code, § 3040, subd.(b).) It must look to all the circumstances bearing on the best interest of the minor child. [Citation.]" (Burgess, supra, 13 Cal.4th at pp. 31-32,
In reviewing the superior court's ruling, we applied "the deferential abuse of discretion test." "The precise measure is whether the trial court could have reasonably concluded that the order in question advanced the `best interest' of the child." (Burgess, supra,
We rejected the Court of Appeal's holding that the mother was required to show that it was "necessary" for her to move to Lancaster: "The trial court must and here it did consider, among other factors, the effects of relocation on the `best interest' of the minor children, including the health, safety, and welfare of the children and the nature and amount of contact with both parents. [Citation.] We discern no statutory basis, however, for imposing a specific additional burden of persuasion on either parent to justify a choice of residence as a condition of custody." (Burgess, supra,
Although Burgess involved an initial determination of custody, we held that "the same conclusion applies when a parent who has sole physical custody under an existing judicial custody order seeks to relocate: the custodial parent ... bears no burden of demonstrating that the move is `necessary.'" (Burgess, supra,
We were quick to emphasize, however, that "bright line rules in this area are inappropriate: each case must be evaluated on its own unique facts. Although the interests of a minor child in the continuity and permanency of custodial placement with the primary caretaker will most often prevail, the trial court, in assessing `prejudice' to the child's welfare as a result of relocating even a distance of 40 or 50 miles, may take into consideration the nature of the child's existing contact with both parents ... and the child's age, community ties, and health and educational needs. Where appropriate, it must also take into account the preferences of the child. [Citation.]" (Burgess, supra,
Recently, the Legislature codified our decision in Burgess by amending Family Code section 7501 to add subdivision (b), which reads: "It is the intent of the Legislature to affirm the decision in In re Marriage of Burgess (1996)
The Courts of Appeal have applied the rules we stated in Burgess on numerous occasions. In all but two cases (In re Marriage of Williams (2001)
In Cassady v. Signorelli (1996)
In several cases, the Courts of Appeal have affirmed orders permitting a custodial parent to change the residence of a child. In In re Marriage of Condon (1998)
In In re Marriage of Edlund & Hales (1998)
In In re Marriage of Bryant (2001)
The Court of Appeal affirmed, recognizing that the superior court has "`"the widest discretion to choose a parenting plan that is in the best interest of the child."' [Citation.] This requires the court to consider all the circumstances." (In re Marriage of Bryant, supra,
The difficulty of the task facing the courts in these matters is exemplified by the quandary posed in In re Marriage of Abargil (2003)
Following a five-day trial, the court permitted the child to move to Israel with the mother, noting that she had been the child's primary caregiver and finding that she was more likely to facilitate visitation with the father than if the parental roles were reversed. (In re Marriage of Abargil, supra,
In only two cases have the Courts of Appeal reversed the superior court's exercise of discretion, and both cases involved unusual circumstances.
In In re Marriage of Williams, supra,
The other case in which the Court of Appeal reversed the superior court was In re Marriage of Campos, supra,
The Court of Appeal in the present case held that the superior court abused its discretion in ordering that primary physical custody of the children would be transferred to the father if the mother moved to Ohio. The Court of Appeal concluded that the superior court "neither proceeded from the presumption that Mother had a right to change the residence of the children, nor took into account this paramount need for stability and continuity in the existing custodial arrangement. Instead, it placed undue emphasis on the detriment that would be caused to the children's relationship with Father if they moved." We disagree.
We reaffirm our statement in Burgess that "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. [Citations.]" (Burgess, supra, 13 Cal.4th at pp. 32-33,
Contrary to the conclusion of the Court of Appeal, the superior court did not place "undue emphasis" on the detriment to the children's relationship with their father that would be caused by the proposed move. The weight to be accorded to such factors must be left to the court's sound discretion. The Court of Appeal erred in substituting its judgment for that of the superior court.
Noting that the superior court relied on the history of animosity between the parents, and the mother's failure to foster and encourage a healthy relationship between the children and their father, the Court of *372 Appeal quoted the superior court's comment: "`Clearly if the parties had been co-parenting with the children and cooperative in this matter, under those circumstances there might well be a presumptive right' for Mother to relocate with the children." The Court of Appeal concluded that the superior court improperly punished the mother for her past conduct by transferring primary physical custody of the children to their father. We disagree.
The Court of Appeal correctly noted that the superior court's function in determining custody is not to reward or punish the parents for their past conduct, but to determine what is in the best interests of the children. (In re Marriage of Condon, supra,
In the present case, the superior court recognized that "[t]he issue is not whether either of these parents are competent and qualified to be custodial parents.... [¶] The question is whether ... the best interests of the children is served by relocating with Mother to Ohio, or whether the best interests are served by ... a change of physical custody if [the mother] is to relocate." There is nothing in the record before us that indicates the superior court acted out of a desire to punish or reward either parent. But the mother's past conduct indicated that it was unlikely that she would follow through on her promises to encourage the children's relationship with their father if they moved to Ohio. Dr. Stahl testified that "there is no evidence that I've seen in the five years that I've known this family that [the mother] will really do what she said she will do. In terms of being supportive of the boys' relationship with their father in a way that truly will reduce the loyalty conflicts and truly will help them ... feel better about things with him."
The superior court did misspeak, however, in stating that the mother might have had a presumptive right to relocate with the children if the parents had co-parented cooperatively. The mother as the parent with primary physical custody of the children had a presumptive right to change the children's residence unless the proposed move "would result in `prejudice' to [the children's] `rights or welfare.' [Citation.]" (Burgess, supra,
The Court of Appeal was concerned about the superior court's reliance upon the detriment to the children's relationship with their father that would be caused by the proposed move, because "[t]here is inevitably a significant detriment to the relationship between the child and the noncustodial parent" whenever the custodial parent relocates with the children. The Court of Appeal observed that "if evidence of some detriment due to geographical separation were to mandate a change of custody, the primary custodial parent would never be able to relocate." We agree. We do not suggest that a showing that a proposed move will cause detriment to the relationship between the children and the noncustodial parent mandates a change in custody. But it is within the wide discretion of the superior court to order a change of custody based upon such detriment, if such a change is in the best interests of the children in light of all the relevant factors.
It is instructive to compare the present case to In re Marriage of Edlund & Hales, supra,
The Court of Appeal in Edlund affirmed, concluding that the superior court had not abused its discretion: "After a thorough review of the record, we are satisfied that the trial court carefully considered all the factors bearing on Natalie's best interest, and that its decision was supported by substantial evidence of the strength and primacy of the bond between Natalie and her mother, [the mother's] *374 proven ability to provide and care for Natalie on a full-time basis, and the overwhelming, undisputed proof that [the father] was not adequately prepared to assume primary physical custody of his daughter. Thus, we conclude the trial court did not abuse its discretion by issuing a move-away order in the circumstances of this case." (In re Marriage of Edlund & Hales, supra,
The Edlund court considered the detriment to the child's relationship with her father that was likely to result from the move, but correctly concluded that, under the circumstances of that case, this was insufficient to alter its holding: "we cannot imagine a case in which a child with any meaningful relationship with the noncustodial parent would not be `significantly negatively impacted' by a good faith decision by a custodial parent to move, over the noncustodial parent's objection, to a distant location. But if the evidence of `detriment' contained in [the evaluator's] report were sufficient to support denial of a move-away order in this case, no primary custodial parent would ever be able to secure such an order." (In re Marriage of Edlund & Hales, supra,
We agree that, considering all of the circumstances in Edlund, the superior court in that case did not abuse its discretion in permitting the change in the child's residence, but the Court of Appeal in Edlund may have inadvertently generated some confusion when it stated as a general conclusion: "The showing of `changed circumstances' required of the noncustodial parent must consist of more than the fact of the proposed move." (In re Marriage of Edlund & Hales, supra,
But some courts have mistakenly interpreted the above quoted statement in Edlund more broadly to mean that the likely consequences of a proposed move can never constitute changed circumstances that justify a reevaluation of an existing custody order. (In re Marriage of Abrams, supra,
The Court of Appeal in the present case held that the father bore the burden of showing "that modification of custody is essential for the child's welfare," citing our statement in Burgess that a change of custody in a move-away case is justified "only if, as a result of relocation with that parent, the child will suffer detriment rendering it `"essential or expedient for the welfare of the child that there be a change."' [Citation.]" (Burgess, supra,
The phrase "essential or expedient" in Burgess derives from the opinion in Washburn v. Washburn (1942)
The Court of Appeal in the present case further concluded that the superior court improperly used its conditional order transferring primary physical custody to the father as a device to restrain the mother from relocating. We agree that a court must not issue such a conditional order for the purpose of coercing the custodial parent into abandoning plans to relocate. Nor should a court issue such an order expecting that the order will not take effect because the custodial parent will choose not to relocate rather than lose primary physical custody of the children. But there is nothing in the record before us that indicates the superior court did so in the present case. The father had long sought joint physical custody or, barring that, increased visitation, and the superior court had slowly but consistently increased the time the children spent at their father's residence. The court found that both parties were "good enough" parents to their children. There is nothing to indicate that the order transferring primary physical custody of the children to the father if the mother relocated was issued to coerce the mother into abandoning her plans to move.
The mother places great emphasis on the superior court's finding that she was not acting in "bad faith." The father contends that the "bad faith test" announced in Burgess"is generally unworkable." We discussed good faith and bad faith in two footnotes in our opinion in Burgess.
*376 In rejecting the argument that a parent who wishes to change the residence of a child bears the burden of proving the move is "necessary," we noted that such a rule would encourage costly litigation and would "require the trial courts to `micromanage' family decisionmaking by second-guessing reasons for everyday decisions about career and family." (Burgess, supra,
We then stated that a decision to change a child's residence ordinarily does not reflect upon the parent's suitability to retain primary physical custody. We pointed out in another footnote, however: "An obvious exception is a custodial parent's decision to relocate simply to frustrate the noncustodial parent's contact with the minor children.... Even if the custodial parent is otherwise `fit,' such bad faith conduct may be relevant to a determination of what permanent custody arrangement is in the minor children's best interest. [Citations.]" (Burgess, supra,
We referenced these discussions of good faith and bad faith in our formulation of the rule: "In a `move-away' case, a change of custody is not justified simply because the custodial parent has chosen, for any sound good faith reason, to reside in a different location, but only if, as a result of relocation with that parent, the child will suffer detriment rendering it `"essential or expedient for the welfare of the child that there be a change."'" (Burgess, supra,
The Courts of Appeal have correctly applied these rules, but in one published decision the Court of Appeal overstated the importance of an absence of bad faith.
In In re Marriage of Bryant, supra,
The Court of Appeal affirmed, correctly noting that "the trial court has `"the widest discretion to choose a parenting plan that is in the best interest of the child."' [Citation.] This requires the court to consider all the circumstances." (In re Marriage of Bryant, supra,
This is not what we said in Burgess; we said simply that a finding that a reason for the proposed move constitutes bad faith "may be relevant" in determining custody arrangements. (Burgess, supra,
Absolute concepts of good faith versus bad faith often are difficult to apply because human beings may act for a complex variety of sometimes conflicting motives. As the superior court in the present case observed after finding that the mother was not acting in bad faith because she had legitimate reasons for the move and was not acting for the specific purpose of limiting the father's contact with his children: "I think it's far more subtle than that...." As Dr. Stahl stated in his evaluation: "On the surface, the reasons for the move are clear. [The mother] has always wanted to move to Ohio to be closer to her sister and family.... [Her husband] has received a good job opportunity in Cleveland, which he has taken. Their economic standard of living, and the inherent quality of life, will improve under such circumstances. All of these are reasonable reasons to make the move.[¶] Underneath, however, it has always appeared that [the mother] has wanted to move so that she can remove herself and take the boys from the day-to-day interactions with [the father]. She has difficulty dealing with him and prefers to have as little communication with him as possible."
Even if the custodial parent has legitimate reasons for the proposed change in the child's residence and is not acting simply to frustrate the noncustodial parent's contact with the child, the court still may consider whether one reason for the move is to lessen the child's contact with the noncustodial parent and whether that indicates, when considered in light of all the relevant factors, that a change in custody would be in the child's best interests.[5]
The foregoing cases, many of which involve heart-wrenching circumstances, remind us that this area of law is not amenable to inflexible rules. Rather, we must permit our superior court *378 judges guided by statute and the principles we announced in Burgess and affirm in the present case to exercise their discretion to fashion orders that best serve the interests of the children in the cases before them. Among the factors that the court ordinarily should consider when deciding whether to modify a custody order in light of the custodial parent's proposal to change the residence of the child are the following: the children's interest in stability and continuity in the custodial arrangement; the distance of the move; the age of the children; the children's relationship with both parents; the relationship between the parents including, but not limited to, their ability to communicate and cooperate effectively and their willingness to put the interests of the children above their individual interests; the wishes of the children if they are mature enough for such an inquiry to be appropriate; the reasons for the proposed move; and the extent to which the parents currently are sharing custody.
III. Disposition
The judgment of the Court of Appeal is reversed and the matter is remanded to that court with directions to affirm the superior court's postjudgment order transferring custody of the children to the father if the mother moves to Ohio. On remand, the superior court should consider the views expressed in this opinion and may consider the parties' present circumstances in issuing any further custody and visitation order.
WE CONCUR: GEORGE, C.J., BAXTER, WERDEGAR, CHIN and BROWN, JJ.
Dissenting Opinion by KENNARD, J.
A mother who had been the primary caretaker of her two children since their birth, and who had never violated the trial court's visitation orders, wanted to provide a better life for her children by moving with them to another state where she had relatives and where her new husband had accepted a better paying job. Concerned that his tenuous relationship with the children would be weakened, the children's father objected. After a hearing, the trial court ordered that custody of the children be transferred to the father in the event the mother moved. The majority holds the trial court did not abuse its discretion in so ruling. I disagree.
When it explained its ruling, the trial court said that moving the children to another state could damage the children's relationship with their father, but the court never mentioned the potential harm to the children from losing their mother as their primary caretaker, despite undisputed evidence that this harm would be significant. The majority acknowledges that the trial court was required to consider this detriment indeed it acknowledges "`the paramount need for continuity and stability in custody arrangements'" (maj. opn., ante,
In a matter of this importance, involving the custody and welfare of minor children, a reviewing court should not make such a speculative assumption. When a trial court's explanation for exercising its discretion in a particular way does not mention a critical matter that the court was bound to consider, and does not accurately state the controlling legal standard, a reviewing court cannot simply ignore these omissions. When, as here, the appellate record raises substantial doubts that the trial court applied the proper legal principles and policies that should have guided its decision, reversal is required.
*379 I
In May 1996, Susan Navarro (the mother) petitioned the superior court to dissolve her marriage to Gary LaMusga (the father) and to obtain custody of their two young children. The father requested joint legal and physical custody. Pending final determination of the custody issue, the children remained in the family home with the mother, and the father established his own separate residence. The court appointed Philip Stahl, Ph.D., a psychologist, to conduct a custody evaluation. Pending this evaluation, the parties agreed to a visitation schedule for the father.
During the initial custody evaluation, the mother told Stahl she wanted to move with the children to Ohio, where she had grown up, to be closer to her relatives and to take advantage of a lower cost of living. Stahl advised against the move because of the children's ages (then four and two) and their need to establish a stronger relationship with their father before relocating. Accepting this recommendation, the mother voluntarily postponed her plans.
In December 1996, the trial court awarded primary physical custody to the mother, with continued visitation for the father. Over the next four years, the mother obeyed all court orders for visitation and frequently stipulated to increases in the father's visitation time with the children. During this time, both parties remarried. The mother married Todd Navarro and they had a daughter, Aisley. The father's new wife had a daughter from her previous marriage.
In April 1999, the mother and the father stipulated to a second evaluation by Stahl to determine how the children were doing, whether any change in the custody timeshare was appropriate, and whether counseling for the children or the parties was indicated. Stahl's report, submitted in February 2001, expressed the view that although the children had a good relationship with the mother, their primary caretaker, they did not get along well with the father. In Stahl's opinion, the children's difficulties with the father were partly the mother's fault. Although she was not intentionally subverting the relationship, Stahl thought the mother was unconsciously contributing to the children's alienation from their father by telling them too much about her disputes with the father and by overindulging them when they expressed negative emotions about the father. Stahl also placed part of the blame on the father, observing that he "is somewhat self-centered and doesn't seem to deal with the boys' feelings that well" and that "he is a bit detached from them and has a hard time interacting with them when they are with him, even though he tries reasonably well."
To remedy this situation, Stahl suggested having the children spend fewer but longer blocks of time with their father during the school year, and equal blocks of time during holidays and during the summer. He also recommended that all disputes be referred to mediation "so that [the parents] can learn problem solving skills and learn to deal with disputes away from their children," and so that they "learn to disengage from their conflict by trying to parallel parent the boys." He explained: "With parallel parenting, each parent will strive to do the best job of parenting the boys during the time they are in their respective care, and relinquish the boys to the other parent during the time they are in the other parent's care."
In February 2001, the mother requested a modification of the custody order by allowing her to relocate with the boys to Ohio, where her new husband had obtained a better paying job. In March 2001, the trial court ordered a focused evaluation on the mother's relocation request from Stahl. *380 In a supplemental report, submitted in June 2001, Stahl noted that if the mother moved with the children to Ohio, "[t]heir economic standard of living, and the inherent quality of life, will improve...." He also acknowledged that ordering a custody change to the father would have a significant detrimental effect on the children: "They have been in the primary care of their mother since their parents' divorce and they will likely have a significant loss [if] she moves without them. They also have a very close relationship with their sister, Aisley, as well as with Todd, and they will feel those losses as well. Third, they certainly have their own desire to move.... If they don't move, they're likely to feel that their wishes aren't being heard.... On top of that, they're likely to blame their dad, potentially increasing their rejection of their dad if forced to stay in California." Stahl also expressed concern, however, that a move to Ohio could further weaken the children's relationship with the father. Stahl characterized this relationship as "tenuous at best."
At an August 2001 hearing, the trial court denied the mother's request to have her sons move with her, and it ordered a transfer of custody to the father if the mother relocated. The court said it was making this order "to reinforce what is now a tenuous and somewhat detached relationship with the boys and their father." In explaining its ruling, the court never mentioned the detriment that the boys were likely to suffer in the event of a custody change from the mother to the father.
The Court of Appeal reversed, holding that the trial court had erred by not considering the detriment to the children that would result from a change in custody.
This court granted review.
II
A parent with custody of minor children has a "presumptive right" to change the children's residence. (In re Marriage of Burgess (1996)
Here, the trial court's explanation for its ruling shows that it properly considered how relocation to Ohio might detrimentally affect the children including the impact on their tenuous relationship with their father. But the trial court was also required to weigh this detriment against the detriment that would result from removing the boys from the mother's custody. This the court did not do. In its statement of reasons, the court said: "So I don't think that I have any real question as to the qualifications or competence of either parent, that is not the issue before me. The issue is the effect on these children of relocating, and the effect of the relationship with their father if they are permitted to relocate." (Italics added.) But the effect of the relocation on the children's relationship with the father was not the issue before the court. Rather, it was just one of the potential detriments shown by the evidence that the trial court was required *381 to consider. Equally important was the potential detriment from disrupting the existing custodial arrangement by transferring custody from the mother to the father.
This court has stressed that the "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 re Marriage of Burgess, supra, 13 Cal.4th at pp. 32-33,
The trial court's ruling on this custody issue is reviewed for abuse of discretion. (In re Marriage of Burgess, supra,
Concluding that the trial court did not abuse its discretion, the majority says that "nothing in the record before us indicates that the superior court failed to consider the children's `interest in stable custodial and emotional ties' with their mother." (Maj. opn., ante,
III
Like the Court of Appeal, I conclude in this case that "[t]he [trial] court's remarks do not reflect a true `best interest' of the child custody evaluation because they do not give any weight to the presumption favoring continuation of the existing custodial arrangement so that the stability and continuity of the child's environment is not disrupted." Therefore, I would affirm the *382 judgment of the Court of Appeal reversing and remanding to the trial court.
NOTES
Notes
[*] Kennard, J., dissented.
[1] The provisions in the Family Code governing custody of children do not use the term "primary physical custody." (In re Marriage of Richardson (2002)
[2] In his reply brief, the father argues that the changed circumstance rule does not apply in this case because there has not been "a final judicial custody determination." We do not agree. The court's December 23, 1996 "Order After Hearing," granting joint legal custody to the parties and sole primary physical custody to the mother, constituted a final judicial custody determination that the court need not reconsider in the absence of changed circumstances. Our holding in Montenegro v. Diaz (2001)
[3] We noted that "[a] different analysis may be required when parents share joint physical custody of the minor children under an existing order and in fact, and one parent seeks to relocate with the minor children." (Burgess, supra,
[4] In Cassady v. Signorelli, supra,
[5] We have no occasion in this case to consider circumstances in which a reason for a proposed move is to minimize contact with a noncustodial parent who has engaged in a pattern of abuse of the custodial parent or the children or who has a substance abuse problem.