Rare reversal of family law judge provides a lesson

Reversal of the family law judges for abuse of discretion is rare, but that's what the 4th District Court of Appeal recently did. The court issued a peremptory writ in the first instance because a family court judge changed custody to a noncustodial parent and required children to move in the middle of the school year from their California home to Alabama. Jane J. v. Superior Court, 2015 DJDAR 6647 (June 16, 2015). This case is thus the next chapter in the saga to determine what must be demonstrated (and by which party) to justify a so-called "move away."

Family lawyers typically refer to a "move away" as one parent's gambit to move with children to a new location. In re Marriage of La Musga, 32 Cal. 4th 1072 (2004), instructs that in determining whether to modify child custody in move-away cases, the weight to be accorded factors such as detriment to the children's relationship with the noncustodial parent from the move is left to the trial court's discretion.

In Jane J., the parties were married for three years and had two children together. Dad was an active duty pilot in the military, stationed in Hawaii. At the time of the divorce, Mom lived in Wisconsin. The martial settlement agreement, entered as an order by a Wisconsin court, gave joint legal custody to the parties. But, because of the family's "unique" situation, Mom was given 82 percent primary physical custody. The agreement emphasized the need for flexibility to allow Dad to see the kids when his military duty permitted.

Dad's military deployment in Iraq and Afghanistan made it difficult, however, for him to have the children for their full summer breaks. He could only see the kids when he was on vacation. Time differences and his military schedule further hampered his ability even to directly communicate with the children.

Three years after the divorce, Mom and the children moved to Orange County, where she was living with her fiancÃ(C). The Wisconsin court approved of the move. Dad then returned to the U.S. and received orders to report to Fort Rocker, in Alabama. Newly remarried, he relocated there in December 2013.

Dad registered the Wisconsin custody order in California, and filed a request to modify the order, either to increase visitation or to give him primary physical custody over the kids. He sought to modify the child support amounts he was obligated to pay as well. According to Dad, he spent a total of 57 days during the 2014 calendar year in visitation with the children. The court entered a support order and continued the hearing on the parties' cross allegations about whether Mom had blocked Dad from seeing the children, and whether Dad had given the children proper medical attention. Although the parties agreed to share the costs for an evaluator to make recommendations regarding the children's best interests, the trial court declined to appoint one.

At the hearing, Mom agreed they needed a more structured visitation schedule. Absence of a written scheduled, she testified, created conflict between the parties. Dad argued for a change in custody because "the kids need to know that their father is important and involved in their lives and that even though before whatever has happened, he is in a place where he can take them. He can give them stability."

The court doubted Mom's willingness to facilitate Dad's visitation with the children, and determined original Wisconsin custody order was not final. As a result, the court said, Dad did not have to establish a "change in circumstances" to achieve a change in the custody schedule. Rather, he merely needed to demonstrate what is in the children's best interests. (Where a court enters a final custody order, a party seeking to modify must show a material change of circumstances. This furthers the paramount goal of preserving the need for continuity and stability in custody arrangements.)

The trial court concluded "it's time [Dad] had an opportunity to parent these children ... He needs to be given the opportunity to be the parent that he is striving to be in the limited time that he has." It then declined Mom's request to defer changes until the end of the school year, and ordered the children to immediately change schools. The court made no orders regarding Mom's visitation rights other than to allow a visitation during spring break.

Within short order, the 4th District granted Mom's petition for writ of mandate and request for a stay. It found the Wisconsin order to be final, and that the parents had treated it as such. As the noncustodial parent seeking to change an existing custody order, the court said, Dad had to make a substantial showing of change of circumstances. "It was not enough, as the trial court reasoned, that it was time to switch sides to give the other parent the opportunity to take control."

The 4th District also said Dad had the additional burden to establish that an out-of-state move would not cause a detriment to the children and was in their best interests. The trial court abused its discretion by not considering the relevant La Musga factors. The trial court had acted precipitously by "failing to weigh, in the context of [Dad's] substantial burden to show change of circumstances and best interests, the disruption to the children from losing their existing home, school and support structure against the potential benefits from an out-of-state relocation."

The trial court also "missed an opportunity to obtain expert guidance when it rejected the parents' stipulation to share in the costs" to retain and use a custody evaluator. Although the trial court seemed persuaded that Mom was limiting Dad's contact with the children, she had her own counter examples. The 4th District instructed the trial court to consider whether judicial remedies other than a change in custody would promote the continuous and enduring relationships between the children and both parents without disrupting the children's interest in stability.

Notably, the 4th District issued a peremptory writ in the first instance without hearing more from Dad than an informal response. It noted the children live in the "present tense and 'temporary' relocations may have a severe and pernicious impact on their well-being and sense of security." There was, in the court's opinion, "a particular need to accelerate the writ process in child custody disputes where children grow up quickly and have immediate needs."