I. Introduction
This is a family law “move away” case. Tara Rose (mother) and Scott James Richardson (father) cross-appeal from custody and visitation orders as to their minor son, Christopher Scott Richardson.
II. Background
The mother and father were married on September 18, 1993. The child was bom on October 16, 1998. The parents separated in May 2000. A stipulated judgment dissolving the parents’ marriage was entered on March 14, 2001. The March 14, 2001, judgment of dissolution set forth the purpose of the settlement as follows: “The purpose of this Judgment is to effect a complete, final and permanent settlement and adjustment of all of the parties’ respective property rights, spousal support claims and any other financial rights and obligations, interests and claims of whatsoever nature arising out of their marriage which presently exist or which might hereafter
But the March 14, 2001, judgment also included child custody and visitation orders which were solely consistent with an intent to resolve those matters in the future. The court awarded joint legal custody of the child to the parents; primary physical custody
After entry of the dissolution of marriage judgment, an arrangement developed whereby the father had physical custody of the child about 15 percent of the time—two evenings a week and alternate weekend overnights. As discussed below, the father contends he should have had more time with his son. But, the father argues, the mother restricted his contact and denied him reasonable visitation.
In October 2001, the father sought modification of the child custody and visitation orders. He presented evidence as to the following: he had a very close relationship with his son and they were bonded to each other; he spent two evenings a week with his son in addition to alternate weekend overnight visits; the mother had frustrated his contact with their son and had denied him reasonable visitation; the mother had recently announced her intention to move with the child to Seattle, Washington; and efforts to mediate the situation had failed given the mother’s “inflexible and uncompromising” attitude and position. The father sought, among other things, joint legal and physical custody of the child. In the “other relief’ portion of the Judicial Council Application for Order and Supporting Declaration form, the father sought the following order: “For a focused child custody evaluation addressed to the developmental needs of three year old Christopher including an assessment of his temper[a]ment, attachment to [the father] and ability to spend periods up to fifteen days each month [away] from one parent or the other.”
The mother opposed the father’s requests, including the request for an evaluation, and sought to maintain primary physical custody of their son, then three years old. She presented evidence she had been the child’s primary caretaker since his birth. In addition, the father’s visitations with their son had been marked by poor transitions and lack of appropriate care in terms of naps and meals. The mother requested that she be allowed to move with the child to Seattle. The mother further requested “. . . that the physical custody arrangement that this Court orders will take into account the need for a gradual increase of [the father’s] overnights with Christopher, taking into account Christopher’s age.”
In his reply, the father denied the mother’s claims; maintained he had consistently sought more time with Christopher; and asserted he had always taken proper care of the youngster. The father made the following request: “I request that the Court give me a 50/50 timeshare until Christopher is school age and a considerable timeshare after he enters school . . . .”
The trial court issued orders on December 14, 19, and 21, 2001, resolving custody and visitation issues. Pursuant to the December 14, 2001, order, the parents were awarded joint legal custody of the child; the parents were also awarded joint physical custody; but primary custody was awarded to the mother. The December 14, 2001, order also set forth the following general visitation schedule: “[The mother] is ordered to bring Christopher to Los Angeles on the first weekend of each month [or an agreed-upon alternative weekend] for visitation with his father so that Christopher spends up to 72 consecutive hours in his father’s care. ... In no event is Christopher to miss his monthly weekend visit in Los Angeles with [the father]. [f] [The father] is awarded additional visitation in Washington for two visits per month, of up to 72 hours consecutive duration. [The father] may combine two 72-hour visits into one trip, provided that Christopher spends 24 hours in his mother’s care at the midpoint of the extended visit and that he miss no more than one day of preschool during the extended visit. . . .”
The December 19, 2001, order provided: “1. The court finds that the facts of this case do not distinguish it from In re Marriage of Burgess (1996)
The court’s December 21, 2001, order stated: “1. The Court denies [the father’s] request to reopen the issue of. . . a custody evaluation, [f] 2. In light of the fact that the parties did not reach a settlement in Conciliation Court of the issue of the visitation and holiday schedule, the Court orders each party to submit to the court his or her proposed schedule, and the Court will make its determination based thereon, [f] 3. The Court orders the parties and counsel to return on December 3, 2001, for its ruling on the remaining outstanding issues. [If] 4. The Court denies [the father’s] request to submit evidence or bring in expert testimony on December 3rd as to why the visitation plan proposed by [the father] is appropriate. The Court finds that [the father’s] request to set the matter for a review date in the future is inappropriate and therefore denies this request.”
III. Discussion
A. Standards of Review
Custody and visitation orders are reviewed for an abuse of discretion. (Montenegro v. Diaz, supra,
We examine a dispute concerning the legal effect of the March 14, 2001, judgment utilizing the following standards of review: “The meaning
B. De Novo Review of Custody and Visitation Was Required
The father contends the trial court erroneously concluded the March 14, 2001 stipulated judgment was a final judicial determination of custody and therefore did not consider, de novo, the best interest of the child. We agree.
The Supreme Court has held that where the parties have stipulated to a temporary custody arrangement, but there is no permanent judicial custody determination, the trial court must, in its discretion, devise a parenting plan that is in the child’s best interest. (In re Marriage of Burgess, supra, 13 Cal.4th at pp. 31-32.) In Burgess, a move-away case, the parties had stipulated to a temporary custody arrangement, but there was no permanent judicial custody determination. The matter was therefore before the trial court for an initial permanent custody order. (Id. at p. 31.) The Supreme
When, on the other hand, there is a final judicial custody determination, a parent seeking to modify the custody order must demonstrate “a significant change of circumstances” in order to justify a modification. (Montenegro v. Diaz, supra,
In Montenegro, the Supreme Court recognized the practical reality that stipulated custody orders often are not intended to conclusively resolve the dispute. The court held: “[M]any stipulated custody orders are not intended to be final judgments. Child custody proceedings usually involve fluid factual circumstances, which often result in disputes that must be resolved before any final resolution can be reached. Although the parties typically resolve these disputes through stipulations confirmed by court order, they often do not intend for these stipulations to be permanent custody orders. Indeed, these temporary custody orders serve an important role in child custody proceedings, and our statutory scheme expressly provides for them. (See, e.g., [Fam. Code,] § 3061.) Because many parties would not enter into a stipulated custody order if a court might later treat that order as a final judicial custody determination, we must be careful in construing such orders. Otherwise, we may discourage these parties from entering into such stipulations.” (Montenegro v. Diaz, supra, 26 Cal.4th at p. 258.) Therefore, the Supreme Court held, in a move-away case, “[W]e hold that a stipulated custody order is a final judicial custody determination for purposes of the changed circumstance rule only if there is a clear, affirmative indication the parties intended such a result.” (Ibid.)
In the present case, the trial court found the March 14, 2001, stipulated dissolution judgment included a final judicial custody determination. As a result, the trial court expressly refused to conduct a de novo review of custody and visitation utilizing the best interest of the child standard. In addition, the trial found no changed circumstances and thus denied the father’s request for a child custody evaluation. We conclude the trial court erred in finding there was a clear, affirmative indication the parties intended the stipulation and resulting March 14, 2001, judgment to be a final judicial determination of custody. The parents stipulated, as reflected in the dissolution judgment, that they would have joint legal custody of the child; the mother would have “primary physical custody”; and the father would have “reasonable visitation.” However, as noted previously, the judgment further recites: “In the event the parties are unable to resolve their custody and visitation issues, they shall agree upon a therapist or counselor
One final note is in order. The mother argues there is language in the March 14, 2001, judgment that reflects an affirmative indication the parties intended the stipulation be a final judicial determination of custody. No doubt, as noted previously, there is language which reflects the intention “to settle all rights and obligations” between the parties. (See pp. 944-945, ante) However, the paragraphs containing the cited waiver language expressly state either “[ejxcept as otherwise expressly provided for in this Judgment” or “[ejxcept for the claims and demands and rights in this Judgment created against either of the parties hereto . . . .” The fairest reading of this language is that it excludes from the waiver of rights and duties the only portion of the stipulation that contains no finality—those matters relating to future efforts to resolve the custody issue. As noted previously, the judgment must be read as a whole. (Lazar v. Superior Court, supra,
C. The Reconsideration Motion
IV. Disposition
The custody and visitation orders entered on December 14, 19, and 21, 2001, are reversed. The appeal from the order denying reconsideration is dismissed. The matter is remanded for reconsideration consistent with the views expressed in this opinion. In the interests of justice, the parties are to bear their own costs on appeal.
Grignon, J., and Mosk, J., concurred.
Notes
The mother’s appeal is from the December 14, 2001, custody and visitation order, and, purportedly, from the February 4, 2002, minute order denying her reconsideration motion. The purported appeal from the reconsideration denial order is discussed in the unpublished portion of this opinion. The father appeals from custody and visitation orders entered on December 14, 19, and 21, 2001.
Though frequently employed, the term “primary physical custody” has no legal meaning. (In re Marriage of Biallas (1998)
See footnote, ante, page 941.