Marriage of Rachel and Mark B.

Filed 6/6/07 Marriage of Rachel and Mark B. CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from an order of the Superior Court of San Diego County, Lantz Lewis, Judge. Affirmed.

I.

INTRODUCTION

This appeal arises from an order entered after final judgment in a marriage dissolution action involving appellant Mark B. and respondent Rachel B. According to the judgment entered in their dissolution action, the parties shared legal custody of their daughter, U., and Rachel had primary physical custody of U., while Mark was granted visitation set at 20 percent.^[1] Rachel filed an order to show cause (OSC) requesting a "move away" order so that she could relocate to Hawaii with U. After a hearing on the matter, the trial court granted Rachel's request to relocate with U. to Hawaii.

Mark appeals from the court's order allowing Rachel to relocate with U. to Hawaii. Mark contends that the trial court misunderstood and erroneously applied In re Marriage of LaMusga (2004) 32 Cal.4th 1072 (LaMusga), to the circumstances of this case. He further contends that the trial court abused its discretion in concluding that allowing Rachel to relocate to Hawaii with U. would be in U.'s best interest.

We conclude that although Mark met his burden to establish that the proposed move would result in some detriment to U., the trial court properly applied the law and weighed the evidence before it, and did not abuse its discretion in determining that it was in the child's best interest to grant the mother's request to allow her to relocate with U. to Hawaii.

II.

FACTUAL AND PROCEDURAL BACKGROUND

Before Rachel and Mark were married, Rachel moved from Hawaii to San Diego to be with Mark, whose job was based in San Diego. The pair married in 2002. Rachel and Mark planned to move to Hawaii some time in the future. In 2004, Mark interviewed for two jobs in Hawaii, and the couple made a down payment on a condominium in Hawaii.

Rachel filed for dissolution of the marriage on August 31, 2004. A final dissolution was entered on August 10, 2005. On December 5, 2005, the trial court entered a judgment in the matter, which included a final determination of child custody. The parties had stipulated to the terms of the judgment.

Pursuant to the judgment, the parties shared legal custody of U., and Rachel was awarded "primary physical custody."^[2] Mark was granted visitation with U. every Tuesday and Thursday from 4:00 p.m. to 8:00 p.m., and every other weekend from 6:00 p.m. Friday until 6:00 p.m. Sunday.

On January 5, 2006, Rachel filed an OSC in which she requested that the court issue an order permitting her to relocate with U. to Hawaii. Rachel's parents, with whom Rachel and U. were living in San Diego, had decided to move back to Hawaii. Rachel's parents provided day care for U., both during Rachel and Mark's marriage and after the parties separated. Rachel proposed that if she and U. were to relocate to Hawaii, U. would be in Mark's care "each summer, each Christmas, Spring break and any time the father wishes to travel to Hawaii to visit the child."

Mark filed a responsive declaration in which he asked the trial court to deny Rachel's request and/or to change the custody arrangement.

The court held a hearing on April 21, 2006, at which Rachel, Mark, and Stacy Kim Johnston, Ph.D., testified. On June 22, the court filed its findings and order after hearing, in which it determined that it would be in U.'s best interest to remain in Rachel's custody. The court granted Rachel's request for a move away order.

On July 11, Mark filed a notice of appeal from that order and also requested a stay of the trial court's order allowing Rachel to relocate to Hawaii with U. The trial court denied Mark's request for a stay pending review on appeal.

On July 28, 2006, this court, on its own motion, granted calendar preference for Mark's appeal. On July 31, Mark filed a petition for a writ of supersedeas in this court seeking to stay the move-away order pending appeal. This court denied Mark's petition for a writ of supersedeas on August 9.

III.

DISCUSSION

Mark makes a number of arguments under a number of different subheadings that ostensibly raise different issues. However, all of Mark's arguments present essentially the same two contentions: (1) that the trial court failed to properly interpret and apply the legal principles set forth in the Supreme Court's decision in LaMusga, supra, 32 Cal.4th 1072, and (2) that the facts compel a result different from the result the trial court reached when it decided to allow Rachel to relocate with U. to Hawaii.

A. Legal standards

"[A] parent who has been awarded physical custody of a child under an existing custody order . . . is not required to show that a proposed move is 'necessary' and instead '"has the 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." (Fam. Code,  7501.)' [Citation.]" (LaMusga, supra, 32 Cal.4th at p. 1078, citing In re Marriage of Burgess (1996) 13 Cal.4th 25, 28-29 (Burgess) [ holding that a parent seeking to relocate after dissolution of marriage is not required to establish that the move is "necessary" in order to be awarded physical custody of a child].)^[3]

"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. . . . 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." (LaMusga, supra, 32 Cal.4th at p. 1078.)

In reviewing a trial court's order made in response to a custodial parent's request to relocate with the child, we apply the deferential abuse of discretion standard of review recognized in Burgess, supra, 13 Cal.4th at page 32. (LaMusga, supra, 32 Cal.4th at p. 1086.) "'The precise measure is whether the trial court could have reasonably concluded that the order in question advanced the "best interest" of the child.'" (Ibid.)

B. Analysis

The trial court concluded that Mark satisfied his initial burden of showing that Rachel's planned move would cause detriment to U. The trial court was thus required to reevaluate the custody arrangement then in effect. (LaMusga, supra, 32 Cal.4th at p. 1078.) On appeal, Mark challenges this second step in the trial court's analysisi.e., the court's reevaluation of U.'s custody arrangement. We conclude that the court properly considered the relevant factors and did not abuse its discretion in deciding that it would be in U.'s best interest to maintain the present custody arrangement, taking into consideration Rachel's plan to move with U. to Hawaii.

1. The court did not misapply LaMusgato this case

Mark contends that the trial court erred in failing to consider all of the factors the Supreme Court identified as significant in LaMusga. He further contends that the trial court improperly considered additional factors that were not discussed in LaMusga. Both contentions lack merit.

a. The trial court properly considered theLaMusga factors

Mark asserts that the trial court "did not consider all the factors set forth in LaMusga in deciding whether to grant or deny Rachel's request to move . . . ." In LaMusga, the court stated, "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 interest; 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.'" (LaMusga, supra, 32 Cal.4th at p. 1101.)

Mark contends that the trial court "failed to consider 'alienation'" and the distance of the move, and that the trial court "failed to analyze [U.'s] age as a factor contributing to the bonding and the child's relationship with the father." A review of the transcript of the hearing on this matter establishes that the court gave ample consideration to all of the factors mentioned in LaMusga.^[4]

The trial court expressed significant concern with the possibility that Mark's relationship with his daughter would suffer as a consequence of Rachel's proposed move. The court stated, "Should mom's move be approved, the impact on dad would be severe. And I have I do not want to underplay that. It would be severe. The challenge of maintaining and expanding the bond that he has with his daughter would be a daunting challenge." The court further recognized that Rachel was proposing to move a great distance away from Mark. After commenting on the challenge Mark would face in maintaining his relationship with U. if the court were to grant Rachel's request, the court noted that "[t]he flight time to Hawaii is five to five and a half hours." The record thus establishes that the court did take into account the potential for Mark to become alienated from his daughter, and the significant obstacle Rachel's decision to relocate to Hawaii would present in terms of Mark's ability to maintain his relationship with U.

The trial court was also acutely aware of U.'s age and the effect that a change in custody might have on her. The court noted that two family court mediators and Mark's counselor all agreed "that transitions between households should be minimized primarily because of [U.'s] age." The court concluded that because of U.'s age, she needs "a place that she feels is home," and that "[p]resently home is with mother . . . ." The court

specifically stated that it had reached "the conclusion that the benefits of maintaining the current custody plan outweigh the detriment" based on consideration of "the age of the child," among other things.

Mark further suggests that the trial court failed to consider whether one of Rachel's reasons for moving was "to lessen the child's contact with the noncustodial parent." The LaMusga court noted that a trial court "may still consider" whether one of the parent's reasons for seeking to 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" even in situations where "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 . . . ." (LaMusga, supra, 32 Cal.4th at p. 1100.) However, even apart from the fact that LaMusga does not require that a trial court consider whether one reason for the proposed move is to lessen contact with the noncustodial parent, the trial court's findings imply that the trial court did not believe a desire to lessen Mark's contact with U. was a motivating factor in Rachel's decision to move with U. to Hawaii.

The court specifically found that "there are sound reasons for [Rachel's requested] move." Further, the court stated, "Unlike the parents in LaMusga, these parents respect each other. They communicate well. They cooperate. Their relationship was described by Dr. Johnston as a remarkable relationship. . . . I do find there are sound reasons for this move. Mom's roots are obviously in Hawaii. Her desire to return has been long-term. And this is not of recent origin and this is not a desire rooted in the divorce." The court also noted,

"Mom has an offer to become engaged in a family enterprise in Hawaii. It may be that this doesn't work out, but I have no reason today to distrust her representations that this is possibly a career that possibly offers long-range economic stability for her and her family needs. [] Finally, I find Mother's assertion that she is unhappy, and if her situation in San Diego could be genuine, Mom's emotional well-being is a factor that I must consider, as it does bear on [U.'s] well-being as well, and [U.'s] best interest."

In suggesting that the parties attempt to coordinate a visitation arrangement that would allow Mark more visitation than the plan suggested in an FCS mediator's report, the court noted Rachel's willingness to allow more visitation than what the mediator had suggested: "I do note that in Mr. Valdez's recommendation the time that he carves out for dad is substantially less than what mom indicated she would be willing to work with. . . . I don't feel comfortable simply just endorsing [the mediator's suggestion] at this point in time. It seems much more limited than what mom said could happen." All of these statements indicate that the trial court considered the issue, and concluded that Rachel's decision to move was not motivated by a desire to lessen Mark's contact with U.

The record establishes that the trial court weighed all of the factors that the LaMusga court considered to be relevant in determining whether to modify a custody order in light of a custodial parent's request to change the child's residence.

b. The trial court did not consider improper factors in

reaching its decision

Mark asserts that in addition to failing to consider the factors set forth in LaMusga, the trial court improperly considered factors not identified in LaMusga. Specifically, Mark contends that the trial court improperly considered "the element of Dad's good character and cooperative nature," and that, under the holding in LaMusga, the court should not have considered these factors in deciding whether to modify the custody order. We reject Mark's contention that LaMusga does not contemplate that a court may consider a parent's "good character and cooperative nature," in determining whether a change in custody is in a child's best interest. We also disagree with Mark's suggestion that a trial court may not consider factors that are not expressly identified in the LaMusga opinion in making such a determination.

LaMusga specifically identifies "the children's relationship with both parents" and "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" as factors the trial court generally 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." (LaMusga, supra, 32 Cal.4th at p. 1101.) In this case, the trial court noted,

"[F]ather is a positive, a complete positive in his daughter's life. . . . Clearly he is a person of integrity and I say that not knowing him other than seeing him in court, but I'll have to say the responses to the questions that I asked father reflected an adult, a man of real integrity and I appreciate that. His love for his daughter is obvious. His love appears to be a very healthy type of love. And by that I mean, it seems to me in reviewing the declarations and listening to dad's responses, and watching him in court today, that this love is oriented to his daughter and his daughter's needs and not so much as his own needs as an adult and as a father, and that's working against dad."

It appears that the court considered Mark's good character in its findings regarding the nature and scope of Mark's relationship with his daughter, Mark's present and future ability to maintain and nurture that relationship, and Mark and Rachel's ability to put U.'s interests above their own so as to ensure cooperation with custody arrangements. LaMusga contemplates that courts will consider precisely these kinds of factors in determining custody arrangements.

LaMusga does not prohibit a court from considering a parent's prior history of cooperation with the other parent. Contrary to Mark's argument, the LaMusga court specifically mentions "the relationship of the parents," which includes the parents' "ability to communicate and cooperate effectively," as a factor a court is to consider in determining whether a change in custody would be in the child's best interest. The Supreme Court explained that a court may look to evidence of the parents' prior conduct in fashioning an appropriate custody arrangement:

"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. [Citation.] But this does not mean that the court may not consider the past conduct of the parents in determining what future arrangement will be best for the children. [Citations.] Clearly, the court must consider the past conduct of the parents in fashioning a custody order that serves the best interests of the children." (LaMusga, supra, 32 Cal.4th at p. 1094.)

There is no support for Mark's contention that the trial court should not have considered his past cooperation with Rachel in determining whether a change in custody was warranted.^[5]

Further, we disagree with Mark's implicit suggestion that a trial court may consider only those factors the Supreme Court specifically identified in LaMusga in reevaluating the child's best interests in light of the custodial parent's proposed relocation. The LaMusga court was careful to express that the factors it identified as being significant to the question whether a change in custody would be in a child's best interest were not intended to be exhaustive, stating that the listed factors are "[a]mong 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 . . . ." (LaMusga, supra, 32 Cal.4th at p. 1101 (italics added).) LaMusga does not prevent a trial court from considering any factor, whether expressly listed or not, that could assist the court in determining what custodial arrangement would be in a child's best interest.

Mark appears to take issue with the fact that the trial court distinguished the facts in LaMusga from the facts in this case on the basis that the parents involved in LaMusga did not respect each other, did not communicate well, and had difficult cooperating with each other. According to Mark, whether or not parents cooperate with each other "is irrelevant to whether or not LaMusga and its mandates apply . . . ." However, the trial court did not distinguish the facts of LaMusga in order to avoid applying the legal principles set forth in LaMusga to this case. In fact, the trial court did apply the legal analysis established in LaMusga. The court distinguished the facts in LaMusga from the facts in this case to explain why it was reaching a result different from the result the trial court (and ultimately the Supreme Court) reached in LaMusga.

2. The trial court did not abuse its discretion in weighing the LaMusga

factors and concluding that it would be in U.'s best interest to allow

Rachel to maintain primary custody despite her decision to move to Hawaii

Mark contends that the court improperly weighed the factors that it did consider, and that the court reached the wrong conclusion regarding what would be in U.'s best interest. Mark asserts that the evidence before the court compels a result opposite from the one the court reached. We conclude that the court did not abuse its discretion in determining that U.'s interests would best be served by allowing Rachel to relocate with U. to Hawaii.

The question on appeal is "'whether the trial court could have reasonably concluded that the order in question advanced the "best interest" of the child.'" (LaMusga, supra, 32 Cal.4th at pp. 1087-1088, citing Burgess, supra, 13 Cal.4th at p. 32.) In addressing this question, we bear in mind that the trial court possesses "'"the widest discretion to choose a parenting plan that is in the best interest of the child."' [Citation.]" (In re Marriage of Bryant (2001) 91 Cal.App.4th 789, 793 (Bryant), criticized on other grounds in LaMusga, supra, 32 Cal.4th at p. 1099.)

In exercising its discretion in determining child custody issues, the court is to consider all the relevant circumstances. (Bryant, supra, 91 Cal.App.4th at p. 793.) "The weight to be accorded to [various] factors must be left to the [trial] court's sound discretion," and an appellate court should not "substitut[e] its judgment for that of the superior court." (LaMusga, supra, 32 Cal.4th at p. 1093.) "The extent to which a proposed move will detrimentally impact a child varies greatly depending upon the circumstances. We will generally leave it to the superior court to assess that impact in light of the other relevant factors in determining what is in the best interests of the child." (Id. at p. 1097.)

Mark asserts that the trial court improperly concluded that U.'s best interests would be served by allowing Rachel to move with U. to Hawaii. Mark makes a number of arguments as to why the trial court's ruling was incorrect. However, we conclude that the trial court could reasonably have concluded that the order in question advanced the best interest of the child.

The trial court expressed particular concern with the harm U. might suffer if she were to lose her sense of home as a result of a change in custody. The court noted that the family court mediators and Dr. Johnston agreed that "transitions between households should be minimized primarily because of [U.'s] age," which the court understood to mean that "[U.] needs a place that she feels is home." The court found that "[p]resently home is with mother . . . ." The court further recognized that Rachel had been U.'s "primary caretaker" and that "the bond between mother and daughter . . . is strong." The court found that although "there is a bond between daughter and father," that bond did not exist "[to] the same extent" as the bond between U. and Rachel.

The trial court acknowledged that "having a man of [Mark's] caliber be a long distance dad" would be "a real detriment to this young girl." However, after weighing the relevant factors, the court ultimately concluded that it would be in U.'s best interest to keep the present custody plan in place and to allow Rachel to move with U. to Hawaii. The court stated, "I've reached the conclusion that the benefits of maintaining the current custody plan outweigh this detriment [i.e., the detriment of not living near Mark], simply because I've considered the mediator's assessments, Dr. Johnston's own assessments, the age of the child, and conclude that [the benefit from] maintaining the sense of home outweighs the detriment that will be suffered."

Mark takes issue with the fact that although the court found that Rachel's proposed move "does constitute a clear change of circumstances," the court nevertheless declined to order a change in custody. There is nothing inherently erroneous in the court's decision to maintain the custody arrangement even in the face of a finding that Rachel's proposed move would constitute a significant change in circumstances that would cause detriment to U. The existence of a change in circumstances is merely a prerequisite for the court to begin to consider whether a different arrangement would be in the child's best interest. (See LaMusga, supra, 32 Cal.4th at pp. 1088-1089, citing Burchard v. Garay (1986) 42 Cal.3d 531, 535 and Burgess, supra, 13 Cal.4th at p. 38.)

The existence of a substantial change in circumstances does not necessarily require a change in the custody arrangement. (LaMusga, supra, 32 Cal.4th at p. 1089.) The fact that a court finds the existence of a change in circumstances allows the court to reopen the issue of custody. However, upon revisiting the issue of custody, the court must consider and weigh all of the circumstances to determine whether a different arrangement would be in the child's best interest. Depending on those circumstances, a court may be well within its discretion in concluding that a child's best interest would be served by maintaining the custody arrangement despite the fact that circumstances have changed since the court made the initial custody determination.

Mark contends that, "This move is contrary to [U.'s] welfare and it is destructive of her relationship with her father. That is exactly contrary to the holding in LaMusga and if the law was properly applied it would have resulted differently." We disagree. The LaMusga court acknowledged that in every move away case there may be detriment to the child, and that the possibility exists that the child's relationship with one parent will be negatively affected. However, this fact, alone, is not sufficient to prevent the custodial parent from moving with the child:

"'[I]f 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 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." (LaMusga, supra, 32 Cal.4th at p. 1095.)

Thus, a court may conclude that although a child's relationship with a noncustodial parent is likely to suffer detriment as a result of a proposed move, the child's interest would be best served by allowing the relocation.

Mark also asserts that not only will his relationship with U. suffer, but also that it is in U.'s best interest to "maintain[] the status quo," by which he apparently means maintaining U's residence in San Diego. (Italics omitted.) Mark claims that while a move to Hawaii will be detrimental to U., allowing her to remain in San Diego will not be detrimental to her. He argues that in this case, U. has strong ties to her father and her community, so that maintaining the status quo is particularly important. Mark concludes that it is in U.'s best interest to "remain and reside in San Diego."

Mark ignores a number of significant factors. First, as the parent with primary physical custody of U., Rachel has a presumptive right to change the child's residence "unless the proposed move 'would result in "prejudice" to [U.'s] "rights or welfare." [Citation.]'" (LaMusga, supra, 32 Cal.4th at p. 1094, citing Burgess, supra, 13 Cal.4th at p. 38.) Additionally, "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.) The trial court properly took into account U.'s interest in maintaining established custodial and emotional ties with her mother, who is her primary caregiver. Mark fails to acknowledge that a significant change in the custody arrangement would be severely detrimental to U., particularly at her young age.

Mark also fails to recognize that an attempt to effectively force Rachel to remain in San Diego by not allowing her to relocate U.'s residence to Hawaii is likely to have a substantial negative impact on U. as well as Rachel. As the trial court recognized, "mom's emotional well-being is a factor that [the court] must consider, as it does bear on [U.]'s well-being as well, and [U.]'s best interest." Additionally, Rachel's mother and stepfather, who provided significant care and support for U., were going to be moving back to Hawaii, leaving Rachel and U. without that important resource.

Mark further asserts that using one parent's good character and past cooperation to make a custody decision detrimental to that parent's interests "set[s] a bad precedent" and constitutes "bad public policy." Although at first blush it may seem counterintuitive to base a decision that is likely to hinder a non-custodial parent's relationship with the child on the fact that that parent has been cooperative and has acted in his child's best interest, the trial court's singular concern is the child's best interests, not the interests of the parents. It is certainly possible, and in many cases likely, that a child's best interests will be served by an arrangement that is detrimental to the interests of one or both parents. As the LaMusga court noted, "'Unfortunately where, as here, both parents are competent and loving, there is frequently no solution that is fair to everyone involved.' [Citations.]" (LaMusga, supra, 32 Cal.4th at p. 1091.)

In this case, it is precisely because Mark has shown both an interest in maintaining a strong relationship with his child, and an ability to cooperate with Rachel, that the court is confident that Mark and Rachel will be able to work together to ensure that Mark can maintain a solid relationship with U., despite the distance between them. The court was well within its discretion to conclude that a custody arrangement in which Rachel maintained primary physical custody of U. in Hawaii would be better for U. than any other option.

Mark contends that the trial court improperly disregarded Dr. Johnston's testimony. Dr. Johnston opined that Rachel's intended move to Hawaii did not present any benefits for U, and recommended that the court deny Rachel's request to permit U. to move with Rachel to Hawaii. Mark asserts that the trial court's "ultimate decision to grant the move away in light of the expert's opinion and findings to the opposite is the very error and abuse of the trial court's discretion that mandates reversal." We are not convinced that the trial court disregarded Dr. Johnston's testimony in reaching its decision to permit U. to move with Rachel to Hawaii. Rather, the record suggests that the court considered Dr. Johnston's testimony and took into account the significant impact Rachel's proposed move would have on the relationship between U. and Mark, but ultimately concluded that U.'s bond with her mother and the importance of maintaining a consistent "home" for U. with her mother outweighed the potential detriment to U. Additionally, Dr. Johnston was not asked to comment on the potential effect on U. if Rachel were to relocate to Hawaii without U.

Further, the court sustained an objection to Dr. Johnston's testimony on the basis that she was not called as an expert and was therefore not qualified to give an opinion as to the ultimate issue of the child's best interest. Dr. Johnston's opinion that the court should deny Rachel's request to relocate with U. thus carried no weight. The court appropriately reached an independent determination as to what course of action would be in U.'s best interest.

We are satisfied that the trial court carefully weighed all of the factors relating to U.'s best interest, and that it reached a decision that is supported by substantial evidence, i.e., evidence of the significant bond between Rachel and U., the support network that Rachel and U. would have in Hawaii that does not exist for them in San Diego, Rachel's acknowledgement of the significance of maintaining the bond between U. and her father, and Mark's proven history of a commitment to his relationship with his daughter. The trial court reasonably concluded that it would be in U.'s best interest for Rachel to retain primary physical custody and be permitted to relocate with U. to Hawaii.

IV.

DISPOSITION

The order of the trial court is affirmed.

AARON, J.

WE CONCUR:

McCONNELL, P. J.

HUFFMAN, J.

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^[1] At the time of the underlying proceedings at issue on appeal, U. was just under three years old.

^[2] In LaMusga, supra, 32 Cal.4th 1072 at page 1081, footnote 1, the Supreme Court acknowledged that even though the court had awarded the mother in that case "primary physical custody," that phrase is not found in the Family Code provisions governing child custody: "The provisions in the Family Code governing custody of children do not use the term 'primary physical custody.' [Citation.] Rather, the code uses the terms 'joint 'physical custody,' which 'means that each of the parents shall have significant periods of physical custody' [citation], and 'sole physical custody,' which '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' [citation]. The term 'primary physical custody' does appear in Family Code section 4054, subdivision (d)(3), which grants the Judicial Council the authority to review the statewide uniform child support guidelines."

^[3] Family Code section 7501 provides: "(a) A parent entitled to the 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. [] (b) It is the intent of the Legislature to affirm the decision in In re Marriage of Burgess (1996) 13 Cal.4th 25, and to declare that ruling to be the public policy and law of this state."

^[4] The LaMusga court stated that the listed factors were among the factors "a court ordinarily should consider." (LaMusga, supra, 32 Cal.4th at p. 1101.) Although in most circumstances trial courts should consider all of the factors set forth in LaMusga, the Supreme Court recognized that in some cases, consideration of one or more of the listed factors may not be necessary or appropriate. Consideration of all of the listed factors is thus not mandatory in every case. Courts may have to adjust the factors that are to be considered, depending on the circumstances of each case.

^[5] Although Mark maintains that the trial court should not have considered his past cooperation with Rachel in considering Rachel's request for a move-away order, it appears that Mark's actual objection is not to the fact that the trial court considered his past cooperation with Rachel, but rather, that the court considered his past cooperation and found that Mark's past cooperation was a factor that weighed in favor of allowing Rachel to relocate with U. to Hawaii. We discuss the merits of this contention in part III.B.2., post.