Case Law Development: Modification of Joint Custody in Relocation Case Does Not Require Proof of Changed Circumstances if Joint Custody Continues after Move

The California Court of Appeals has handed down a fascinating decision involving modification of joint child custody plans.  The richness and complexity of the facts would make this a fine opinion to craft into a child custody problem for students.  In terms of the legal developments, the majority and dissenting opinions' debate over the "changed circumstances" test  in child custody modifications is extensive and well-written.

The case involves an unmarried mother and father whose relationship was, in the words of dissenting judge Bedsworth, "Byzantine in its complexity."  The couple had an on-again, off-again relationship for over ten years after the child was born, despite the fact that Father was married to another woman for most of this time.   Custody and paternity proceedings were filed when the child was five years old and a custody order entered over four years later.   The custody order provided a 50/50 joint custody arrangement and ordered that neither parent could relocate out of the state without the other parent's permission or the permission of the court. A year later, mother moved to modify the parenting plan and for permission to move to Colorado, based on her allegations that she could no longer afford to live in California, her sister had offered her employment in Colorado, and father was "very controlling" and was abusing son in his sports workout sessions.  Father argued that mother's request was in bad faith because his wife was expecting their first child and he believed mother wanted to move away in order to prevent son from bonding with his new half-sibling. 

The court heard the custody issue de novo under a best interests standard, rather than applying a changed circumstances rule.  It appointed an attorney for the child and a child custody evaluator.  Father employed a psychological expert to evaluate son, but the expert was unwilling to testify (with father alleging that his reluctance was due to pressure from mother and child's attorney).  The court refused to accept that expert's report into evidence, concluding that the expert had freely chosen not to testify.  Finally, the court refused to hear the testimony of the 12-year-old son or interview him in chambers, stating that it had a policy against children testifying and that it had sufficient information from the custody evaluator and child's attorney.

The trial court modified the child custody judgment, granting mother's move-away request and establishing a new co-parenting plan for joint physical custody, with son living with mom in Colorado during the school year, Dad during the summers and on alternate Thanksgiving and spring breaks.

The court of appeals affirmed, noting that ordinarily the parent seeking to change custody would have to prove changed circumstances, but such a requirement did not apply here "because the court did not change custody. Although the court gave [mother] permission to relocate [son], the court
continued joint custody with a modified co-parenting arrangement."  The court also found no error in the trial court's refusal to allow the child to testify.

The dissenting opinion is a lovely piece of writing in which Judge Bedsworth takes the majority to task for its conclusion that changed circumstances were not required in this case.  Here is a small excerpt to give you a flavor of the opinion:

They [decide the changed circumstances rule does not apply] by concluding that a thousand-mile move is not a change in physical custody, but merely some kind of “modification of the coparenting arrangement.” ... In essence, they’ve said something akin to: “Your pet is still a golden retriever, only now instead of orange fur, big floppy ears and a long tail, it has silver scales, fins and gills and isn’t quite as huggable.” I am not yet willing to throw in the towel on something as important as finality of judgments, and would not allow what I believe is a reassessment of a final  custody judgment in this case, absent a showing of significant changed circumstances.

Niko v. Foreman (October 30, 2006)
Opinion on the web (last visited November 3, 2006 bgf)