Marriage of Diop and Owens

Filed 1/19/10 Marriage of Diop and Owens CA1/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION THREE

Appellant Rama Diop appeals from a judgment entered following a contested hearing regarding custody of her and respondent Richard Owenss now four-year-old son. She contends the court erred in ordering the parents to share joint legal and physical custody of their son and in denying her request for permission to move with the boy to New York. Diop argues for the first time on appeal that the court applied an incorrect standard and also argues the court abused its discretion in finding that the proposed move would not be in the childs best interests. We shall modify the judgment in one respect and otherwise affirm.

Factual and Procedural History

In September 2006, Diop filed the present action against Owens to establish paternity. Diop is a 34-year-old college graduate but is presently unemployed. Owens is 64 years of age, retired and living on a boat in Sausalito. Owens suffers from a bipolar disorder, which he has attempted to control with medication under the supervision of his primary care doctor. While both parents are described as obviously intelligent and well-spoken, their relationship with each other is exceptionally volatile, each having sought domestic violence restraining orders against the other.

Shortly after the petition was filed, the parties were referred to mediation with Family Court Services. On December 6, 2006, based on an agreement between the parents reached in mediation, the trial court entered a temporary order under which Diop would retain physical custody of the child and Owens would have visitation from 10:00 a.m. to 2:00 p.m. on Tuesdays, Thursdays, and Saturdays. The parties also agreed in mediation that Owens would not take the toddler onto his boat.

On October 1, 2007, Diop filed a motion for modification of the existing visitation order requesting, among other things, that the court award her sole physical and legal custody of the child and authorize her to move with the child to New York. Following an extensive evidentiary hearing, the court entered a judgment ordering that the parties share legal and physical custody of their son and that Diop shall have primary physical custody of the child. The court denied Diops request for permission to move with the child to New York without prejudice to a renewal of the request when the child is at least five years old. The court observed that Diop has never claimed that she will move without [the child], and the court hopes that she does not do so but ordered that if she does move to New York, Owens shall have primary physical custody of the child. In addition, the court ordered Owens to remain under the care of a board-certified psychiatrist regarding [his] diagnosis of bipolar disorder and comply with all directives of the treating psychiatrist. Owens was also directed to obtain full-time, appropriate land-based housing. Both parents were ordered to participate in anger management classes and a Cooperative Parenting 101 class. The court continued the previously agreed visitation arrangement, but noted that if Owens can demonstrate compliance with the psychological and housing related requirements of the judgment, a status hearing would be held to consider whether an overnight visit on Sundays is appropriate. [1]

The court issued a comprehensive statement of decision setting forth the evidence received at trial and the factors the court considered in concluding that continuing the existing custody and visitation order and denying Diops request to relocate to New York was in the childs best interests. The court noted that the Family Court Services mediator testified that she had mediated with the parents on three occasions and following her most recent attempt believed that the child should not be permitted to move to New York. She recommended that the parents share custody of the child and that overnight visits for Owens be commenced. The court observed that the degree of animus displayed by the parents throughout the trial was alarming, adding that the case was tried for all or portions of seven court days, and neither parent had a single good word to say about the other or about the others parenting of this young child. The court recognized that both parents had made allegations of domestic abuse, including allegations of child sexual abuse, but found that neither party had substantiated these allegations. The court similarly found that Diops allegation of drug and alcohol abuse by Owens had not been substantiated. The court observed that Owenss bipolar condition [was] not under as good control as [he] would have the court believe. [His] prescription records . . . show that during a period of 202 days [he] picked up 150 days worth of lithium prescriptions . . . . [His] pressured speech during his testimony, his flashes of anger, and his accosting [a witness] during a court recess are some evidence that his bipolar disorder needs to be better regulated. (Fn. omitted.)

The court also questioned Diops credibility and motivation for the proposed move to New York. The court explained that Diop is a magna cum laude graduate of New York University. She claims that she is unable to find a job in the Bay Area. However, she says she obtained a job in New York City, even though she never had an interview, with a company called Village Real Estate. A letter from that company dated September 10, 2007 was received in evidence . . . . [She] says that job is being held open for her indefinitely. (Fn. omitted.) Based on this evidence, the court was dubious about [Diops] claim that she has a job waiting for her in New York. The court was equally suspicious of Diops claim that her mother would be able to care for the child when they were in New York, noting that Diops relationship with her mother (who is bipolar) . . . is nearly as tumultuous as her relationship with [Owens]. The court cited Diops admission that she had violent encounters with her own mother to the extent that the police were involved, [Diop] spent a night in jail and [Diops] mother obtained a restraining order. Finally, the trial court concluded that testimony by Diop made it clear that if allowed to move to New York with [her son], she would resist visits by Fathers adult daughter, who lives in New York, and would seek to restrict [Owenss] access to [their son]. The court believed that should Diop relocate to New York with the child, Owens will almost certainly never form a real bond with [the child].

Diop filed a timely notice of appeal.

Discussion

When making child custody decisions, the trial court is always bound to base its decision on the childs best interest. But, depending on the posture of the case, the trial court will use either a best interest analysis or a changed circumstances analysis. (Ragghanti v. Reyes (2004) 123 Cal.App.4th 989, 996.) The best interest analysis is used when making a permanent custody determination initially. In 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.  (Ragghanti v. Reyes, supra, at p. 996.) In an initial custody determination, a parent seeking to relocate with the minor children bears no burden of establishing that the move is necessary. The trial court must . . . 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. (In re Marriage of Burgess (1996) 13 Cal.4th 25, 34 (Burgess).) In contrast, [t]he changed circumstances test requires a threshold showing of detriment before a court may modify an existing final custody order that was previously based upon the childs best interest. (Ragghanti v. Reyes, supra, at p. 996, citing Burchard v. Garay (1986) 42 Cal.3d 531, 535.)  [T]he changed-circumstance rule is not a different test, devised to supplant the [best interest] test, but an adjunct to the best-interest test. It provides, in essence, that once it has been established that a particular custodial arrangement is in the best interests of the child, the court need not reexamine that question. Instead, it should preserve the established mode of custody unless some significant change in circumstances indicates that a different arrangement would be in the childs best interest. The rule thus fosters the dual goals of judicial economy and protecting stable custody arrangements.  (Montenegro v. Diaz (2001) 26 Cal.4th 249, 256.) The changed circumstance rule applies, however, only whenever [final] custody has been established by judicial decree. (Ibid., citing Burchard v. Garay, supra, at p. 535; see also Burgess, supra, 13 Cal.4th at p. 37 [changed circumstance rule applies after any final judicial custody determination].)

The standard of appellate review of custody and visitation orders [where one parent seeks to move away with a child of the parties] is the deferential abuse of discretion test. [Citation.] The precise measure is whether the trial court could have reasonably concluded that the order in question advanced the best interest of the child. We are required to uphold the ruling if it is correct on any basis, regardless of whether such basis was actually invoked. (Burgess, supra, 13 Cal.4th at p. 32.)

1.         The court properly applied the best interest analysis.

The standard of proof section of the statement of decision states, In this case there has been no final custody determination. Therefore, the move-away issue should be determined, based on the childs best interest analysis. Although Diop did not object in the trial court to the courts choice of the applicable standard, for the first time on appeal she asserts that the court should not have determined custody under the best interests analysis. She argues that the court should have required Owens to demonstrate that the proposed move would cause detriment to the child. To the extent that Diop is arguing that the court should have applied the changed circumstance analysis, her argument must be rejected because a final, permanent custody order had not previously been entered. Although an adversarial fact-finding process is not necessary to invoke the changed circumstances analysis, there must have been a prior order that had some intended degree of permanency. (Montenegro v. Diaz, supra, 26 Cal.4th at p. 257; see also Burchard v. Garay, supra, 42 Cal.3d at p. 538 [application of the changed circumstance rule in the case of an informal or de facto arrangement for custody, i.e., without a judicial order it is unworkable because . . . absent such a prior determination the courts have no established basis on which they can assess the significance of any change [a]nd it is potentially harmful because it could compel the court to make an award inconsistent with the childs best interest].) In Montenegro, the court found that two orders entered during the course of a family court proceeding were temporary and thus not final custody determinations requiring application of the changed circumstance rule. The court explained, Although these orders included detailed visitation schedules and did not provide for further hearings, . . . neither order contained a clear, affirmative indication that the parties intended it to be a final judicial custody determination. [] In addition to the ambiguities in the orders themselves, the parties conduct following the entry of these orders strongly suggest that they did not intend for these orders to be final judgments as to custody. (Montenegro v. Diaz, supra, at p. 259.)

The mother in Montenegro, like Diop in this case, argued that the changed circumstance rule applied because the child had lived with her since birth, not because the prior court order was a final custody determination. (Montenegro v. Diaz, supra, 26 Cal.4th 249.) In this case, the December 6, 2006 order sets forth a temporary visitation schedule based on the parents agreement but was not intended to be a final custody determination. The register of actions shows that the following year the parties returned to court numerous times and returned to mediation, continuing to address visitation and support issues. Accordingly, the trial court properly applied a de novo best interest analysis and considered the move-away request in the context of the overall custody determination.

2.         Application of Family Code section 7501[2]

Section 7501, subdivision (a) provides, A parent entitled to custody of a child has a right to change the residence of the child, subject to the power of the court to restrain a removal that would prejudice the rights or welfare of the child. In Burgess, the court held that in an initial judicial custody determination based on the best interest of minor children, a parent seeking to relocate does not bear a burden of establishing that the move is necessary as a condition of custody. (Burgess, supra, 13 Cal.4th at pp. 28-29.) In a matter involving immediate or eventual relocation by one or both parents, the trial court must take into account the presumptive right of a custodial parent to change the residence of the minor children, so long as the removal would not be prejudicial to their rights or welfare. (Id. at p. 32.) Diop contends that as the childs physical custodian she was entitled under section 7501 to relocate with her child absent a showing by Owens that the move would be detrimental to the child. She argues that while the temporary custody order did not award Diop sole physical custody of the child, the custody arrangement ordered by the courtand continued by the trial court in the final judgmentin fact gave her sole custody of the child. (See 3007 [ Sole physical custody means that a child shall reside with and be under the supervision of one parent, subject to the power of the court to order visitation].)

In In re Marriage of Biallas (1998) 65 Cal.App.4th 755, 760, the court held that when a trial court is considering a request by one parent to relocate with a child, the court must look at the existing de facto arrangement between the parties to decide whether physical custody is truly joint or whether one parent has sole physical custody with visitation rights accorded the other parent. The court concluded that the mother there, who had been awarded primary physical custody of the child with reasonable visitation periods provided to father, was in fact the sole custodian and, as such, was entitled to a presumptive right of a custodial parent to change the residence of minor children. (Id. at pp. 758-760, 762.)

In the present case, there is no doubt that throughout the proceedings Diop has had de facto sole custody of the child and Owens only a restricted right of visitation. Thus, in determining whether the proposed move is in the childs best interests the court is required to consider Diops presumptive right to relocate with her child, subject to a finding by the court that the move would be detrimental to the child. [3]

3.         There was no abuse of discretion.

In In re Marriage of LaMusga (2004) 32 Cal.4th 1072, 1101, the court clarified factors the trial court should consider when determining the best interests of a child in move-away cases: the childs interest in stability and continuity in the custodial arrangement; the distance of the move; the age of the [child]; the [child]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 child above their individual interests; the wishes of the [child] if he or she is 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.

Applying these factors, the trial court found that it was clearly not in [the childs] best interests to move to New York City with Mother. With respect to the LaMusga factors, the court noted the following: [1.] The primary reasons advanced by Mother for the proposed move are her claim that she has a job waiting for her in New York and that her mother can help her care for [the child]. The court is dubious about Mothers claim that she has a job waiting for her in New York, and has already noted that Mother has a relationship with her mother (who is bipolar) which is nearly as tumultuous as her relationship with Father. [] [2.] [The child] needs stability and continuity in his relationship with both parents, and that stability and continuity would be irremediably prejudiced by a cross-country move. [] [3.] The move is from the West Coast to the East Coast, nearly as far as one can go in the continental United States. [] [4.] [The child] is not yet 3 years old. [] [5.] The parties relationship is such that if Mother moves to New York, Father will almost certainly never form a real bond with [the child].

As discussed above, the court seriously questioned the legitimacy and good faith of Diops request to relocate to New York with the minor. (See In re Marriage of Campos (2003) 108 Cal.App.4th 839, 844 [In a move away case, the trial court must always consider whether a custodial parent is acting in bad faith]; Cassady v. Signorelli (1996) 49 Cal.App.4th 55, 59-60 [move-away request properly denied based on trial courts finding that the custodial parents reasons for seeking a move-away order were whimsical, and were simply to frustrate the fathers relationship with the child].)

Substantial evidence supports the courts finding that Diops motive for the proposed move was to further restrict Owenss visitation, rather than to relocate for better employment opportunities or additional family support. Diop argues that she never testified that she would limit Owenss visitation if she and her child were in New York. She expressly testified that she was not moving away with [the child] to take him away from [Owens] and that Owens would still be able to visit him in New York based on the fact that he travels to Miami once a . . . month to visit his mother and therefore he can easily arrange to come and visit his son. Despite her protestations to the contrary, Diops testimony reveals that she had serious reservations about continued visitation. When asked by the court to suggest what would be a good, healthy pattern of contact between Owens and their child, Diop responded, I never wanted to stand between Richard and [his son], and I never had. All I try to do, at this point, is make sure Richard is safe enough to be near [him]. And my last request . . . specifically requested that it was supervised visitation. She explained that she asked for supervised visitation because it would still keep Richard in a position he can see his child, but based on sexual and physical abuse allegations, I will think [the child] is safer if he were not in direct contact with [Owens]. She also expressed concerns about Owenss mental health, noting that if his brain is temporarily displaced because of the medication that is not working, . . . all of those are concerns to me about Richard being . . . in [the childs] side without supervision, when his mania or depression can, you know, come in any time. Diop acknowledged that she was tempering her testimony and asking for supervised visitation, rather than no visitation, because she had been told by other mothers on the Internet that if she opposed all visitation she would be accused of trying to keep [the] child from his father.

Diops attempts to limit Owenss visitation based on unsubstantiated allegations of abuse reasonably support the courts belief that her efforts would increase if the parents resided thousands of miles apart. (See In re Marriage of LaMusga, supra, 32 Cal.4th at p. 1095 [The parents history of animosity and the mothers consistent attempts to limit contact between the children and their father indicated that the proposed move would be detrimental to the children].) In LaMusga, the court explained, [T]he mothers past conduct indicated that it was unlikely that she would follow through on her promises to encourage the childrens relationship with their father if they moved to Ohio. [Her doctor] 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.  (Id. at p. 1094.) The same can be said of Diops conduct in the present case.

The evidence of Diops bad faith and the detriment to the child were sufficient to rebut the presumption under section 7501. Accordingly, the trial court did not abuse its discretion in denying Diops request to relocate with the child. Likewise, the court did not abuse its discretion in ordering that Diop continue to have primary physical custody of the child with potentially increasing visitation for Owens. (See Cassady v. Signorelli, supra, 49 Cal.App.4th 55 [denying mothers request to relocate to Florida and ordering that mother retain primary physical custody of the child so long as she remained in the Bay Area].)

4.      The courts conditional order must be stricken.

In In re Marriage of LaMusga, supra, 32 Cal.4th at page 1098 the court warned that a court must not issue such a conditional order [transferring custody if the custodial parent relocates] 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. In Burgess, supra, 13 Cal.4th at page 36, footnote 7, the court noted that the Family Code provides no ground for permitting the trial court to test parental attachments or to risk detriment to the best interest of the minor children, on that basis. Nor should either parent be confronted with Solomonic choices over custody of minor children. In Ruisi v. Thieriot (1997) 53 Cal.App.4th 1197, 1205-1206, the court construed this language to mean that when the trial court is faced with a request to modify the existing custody arrangement on account of a parents plan to move away (unless the trial court finds the decision to relocate is in bad faith), the trial court must treat the plan as a serious one and must decide the custody issues based upon that premise. The question for the trial court is not whether the parent may be permitted to move; the question is what arrangement for custody should be made. (First italics added.)

Here, the court observed that Diop has never claimed that she will move without [the child], and the court hopes that she does not do so but ordered that if she moves to New York, Owens shall have primary physical custody of the child. Diop argues that this conditional order was an improper attempt to restrain her from relocating. She argues that in light of Owenss lack of suitable housing and uncontrolled bipolar disorder, the court could not seriously have intended to transfer primary physical custody to him. Based on the evidence presented at the hearing, it is indeed questionable whether the court concluded that it would be prudent, much less in the childs best interest, to award primary physical custody to Owens if Diop should relocate. We also question whether the record would support such a finding. It is unnecessary to reach any final conclusions in this regard, however, because Diop has not announced a determination to relocate without her son. A determination of what in that event would be in the minors best interests is at this point entirely hypothetical and unnecessary to decide. We presume that Diop will obey the order that she not relocate with the minor. If she should decide nonetheless to relocate without him, it will be time enough for the court to determine what course of action is dictated by the childs best interests. The portion of the judgment providing for a conditional change of custody must be stricken, but for the reasons discussed above, the nonconditional portion of the judgment involves no abuse of discretion and will be affirmed.

Disposition

The judgment is modified by striking from paragraph 3 of the attachment to judgment the following sentence: If Mother moves to New York City without [the minor], Father shall have primary custody of [the minor]. In all other respects, the judgment is affirmed. Owens shall recover his costs on appeal. Owenss request for sanctions is denied.

_________________________

Pollak, Acting P.J.

We concur:

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Siggins, J.

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Jenkins, J.

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[1] Owenss request for judicial notice of posttrial orders that he asserts demonstrate his compliance with the terms of the judgment is denied on the ground of relevance. Whether Owens was able to obtain overnight visitation based on his compliance with the terms of the judgment is not relevant to whether the judgment was an abuse of discretion at the time it was entered.

[2] All statutory references are to the Family Code unless otherwise noted.

[3] In light of this conclusion, we need not consider Diops argument that she should be considered to have custody of the child for purposes of section 7501 because Owens does not qualify as a presumed father under section 7611. Moreover, Diop has waived this argument by failing to assert it in the trial court. (In re Margarita D. (1999) 72 Cal.App.4th 1288, 1296 [appellant could not challenge presumed father finding for first time on appeal]; In re Jason J. (2009) 175 Cal.App.4th 922, [father waived claim asserted for the first time on appeal that he is a presumed father within the meaning of Adoption of Kelsey S. (1992) 1 Cal.4th 816 by not raising it in the juvenile court].) Owenss request for judicial notice of court documents he asserts would establish that he qualifies as a presumed father is denied as unnecessary in view of these determinations.