County of Sacramento v. Guidera

Filed 2/28/07 County of Sacramento v. Guidera CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THIRD APPELLATE DISTRICT

(Sacramento)

----

Lonnie Hayden (mother) appeals from an order denying her request to relocate with her toddler son to Hawaii, and ruling that, if she moves to Hawaii, the court will transfer primary physical custody of the boy to his father, Paul J. Guidera (father).

Mother contends on appeal the decision constitutes an abuse of discretion because (1) the court failed to consider all of the factors applicable to determinations of the best interest of the child in move-away cases, as set forth in the Supreme Courts decision in In re Marriage ofLaMusga (2004) 32 Cal.4th 1072 (LaMusga) and (2) there is no reasonable basis for the courts conclusion that transferring custody to father is in the childs best interests. Moreover, mother complains, the court improperly made a conditional order with the intent of coercing her to abandon plans to relocate in order to live with her new husband, who is in the Navy stationed in Hawaii.

Because we agree the record fails to show the trial court properly applied the principles set forth in LaMusga, supra, 32 Cal.4th 1072, we shall reverse the order and remand the matter for further proceedings consistent with this opinion.

BACKGROUND

Mother and father never married. Their son David was born in July 2003 and the parties relationship ended three months later. David remained with mother in a home she planned to buy.

After the county initiated proceedings against father to recoup support paid on the childs behalf, the parties were referred to mediation for formulation of a parenting plan. The parties ultimately agreed in May 2004 to share legal custody of David, with mother having physical custody and father having visitation on Monday, Wednesday and Friday from early evening (at some point between 4:30 and 6:00 p.m.) to 9:00 p.m., and three Saturdays per month, from 9:00 a.m. to 8:30 p.m. The parties agreement also anticipated that, when David reached 16 months of age, he would begin spending one night per week with his father.

The court subsequently entered an order that father pay child support. The parties custody and visitation agreement apparently was also made an order of the court, although a copy of that order is not in the record on appeal.

In January 2005, mother filed a motion seeking modification of visitation and permission to move with David out of state, on the grounds she is a custodial parent with a good faith reason for seeking to relocate, within the meaning of In re Marriage of Burgess (1996) 13 Cal.4th 25 (Burgess). Mothers supporting declaration stated she has de facto sole physical custody of David; she planned soon to marry Thomas Hayden, who is in the Navy and stationed in Hawaii for at least two more years; and she wished after her marriage to live there with Hayden and David. The court issued an order to show cause.

Father opposed mothers move-away request. He requested sole physical custody of David if mother moves to Hawaii, and equal parenting time if mother continues to live in Sacramento. In his supporting declaration, father denied mothers claim to de facto sole physical custody[,] and argued that moving to Hawaii would not be in Davids best interests because (1) he has no extended family in Hawaii, while his parents and all grandparents, aunts, uncles and cousins live in or near Sacramento; and (2) mothers decision to marry a sailor she met on the internet whom she barely knows reflects poorly on her judgment.

The court denied mothers request without prejudice and referred the matter to mediation.^[1]

The parties met with mediator Joyce Medari, who strongly recommended in her subsequent written opinion that the court not grant mother permission to relocate and [i]n the event the mother relocates out of the Sacramento area, . . . the child [should] stay with his father. Medari opined that mother has placed her own needs above the needs of the child to have a relationship with his father and [i]t would appear to this mediator that the mother has had very little face-to-face contact with the gentleman prior to marrying him (so it is assumed that the child also has little experience with him), and it would also appear that mother does not consider it to be important that she is proposing to remove the child from a father who has frequent contact with the child, and basically replace the father with a gentleman who is a virtual stranger to the child.

Medari further opined that children Davids age [g]enerally . . . benefit from frequent contact with their parents and frequent contact with father will be impossible if David were to move with his mother. [M]other is proposing to relocate [David] at a critical developmental time in the childs life, so that the childs need for frequency of contact [with father] is no longer met, and the increases in the amount of parenting time between child and father [contemplated by father] do not occur.

By the time of the evidentiary hearing on mothers request to move, she had married.

At the start of proceedings, the court announced to mother, [T]his is going to be your burden. Mother testified David had lived with her since his birth; she has always been primarily responsible for his care; she is the parent primarily responsible for facilitating Davids relationship with his grandparents; until she filed this motion, father was inconsistent about exercising his rights under their visitation agreement and never requested additional time with David. Mother also testified her new husband, Hayden, will return to Hawaii from sea duty in September 2005; she did not marry to interfere with Davids relationship with father and, in fact, she would like David to have a continuing relationship with his father.

Following a cross-examination by fathers counsel, which focused on how mother met Hayden through the Website eharmony.com and the amount of time she spent with him before marrying, the court itself examined mother about when her e-mail correspondence with her husband began, how often they met before they married, and whether she gave a lot of thought to her decision to marry and as to how her relationship with Hayden would effect David and father. Although neither parent has much money, mother testified she intends to work once she moves to Hawaii and hopes to bring David to California three times a year. Mother agreed that David regularly sees his extended family in Sacramento and, in contrast, she has no family in Hawaii. Mother also admitted she hadnt really considered that David would be losing contact with extended family if she moved with him to Hawaii.

Father also testified. He is 25 years old and lives at home with his parents and two young adult brothers. In his view, he has responsibility for David about 25 percent of the time, but he admitted he has never cared for David for more than two consecutive nights. He is not currently working but receives workers compensation for an injury that prevents him from standing for long periods and may prevent him from returning to his job as an auto technician. Given his financial circumstances, father testified if he were to have custody of David, he would allow mother to pay to fly David to Hawaii for visits. He would also move himself into the family den, so David could have his bedroom.

Mediator Joyce Medari testified at the hearing that David would suffer detriment if mother relocated to Hawaii with or without him, but would suffer greater detriment if he moved with his mother to Hawaii. Medari also reiterated her opinions that David should not be allowed to move to Hawaii because he would lose contact with his father and extended family, mother did not appear to be as focused on the childs needs as the father did, and mother had not given sufficient thought to the effect of her marriage on David.

Mothers stepmother testified in rebuttal that mother and her new husband had attended premarital counseling and mother was, in fact, very concerned about the effect of her marriage on David.

The court denied mothers request to move. It found that [t]his is clearly a Burgess[, supra, 13 Cal.4th 25,] case because mother was the primary physical custodian of the child, and her request is not motivated by bad faith or an intent to frustrate fathers relationship with David.

But, it continued, based on LaMusga[,supra, 32 Cal.4th 1072], I need to examine the detriment of the two scenarios. Im not going to examine the third scenario, because I cant ask the question, whats going to happen if I say no? Weighing the detriment to David of traveling with mother to Hawaii versus his remaining in Sacramento with father while mother leaves for Hawaii, the court found less relative detriment in Davids remaining with father inasmuch as mothers new husband would be at sea for extended periods, leaving mother alone with David; David spends most of his time during the day with a day care provider, and half of his weekday evenings with father; and Davids extended family all live here.

The court then ordered the matter re-referred to Family Court Services for the issue of change of custody/parenting time if Mother moves to Hawaii and said, if Mom wants to move, Im going to have custody of David with father, primarily.

DISCUSSION

1. Standard of Review

By statute, a parent with physical custody of a child has the presumptive right to change the childs residence -- i.e., to move away -- subject to the courts right to enjoin such a move if it would prejudice the rights or welfare of the child. (Fam. Code, 7501, subd. (a);^[2]see Cal. Practice Guide, Family Law (The Rutter Group 2006) 7:560, p. 7-219.)

We review orders granting or denying move-away requests for abuse of discretion. (In re Marriage of Abargil (2003)106 Cal.App.4th 1294, 1298.) Generally, a trial court abuses its discretion if there is no reasonable basis on which the court could conclude its decision advanced the best interests of the child. (In re Marriage of Melville (2004) 122 Cal.App.4th 601, 610; Burgess, supra, 13 Cal.4th at p. 32.) However, where the standards applied to make its decision are incorrect and would likely have had an impact on the trial courts conclusion, there is also an abuse of discretion. A trial court abuses its discretion when it applies the wrong legal standards applicable to the issue at hand. (Bailey v. Taaffe (1866) 29 Cal. 422, 424; City of Sacramento v. Drew (1989) 207 Cal.App.3d 1287, 1297-1298;, accord, Doe 2 v. Superior Court (2005) 132 Cal.App.4th 1504, 1517; Adams v. Aerojet-General Corp. (2001) 86 Cal.App.4th 1324, 1341 [remanding for reconsideration after concluding the trial court employed the wrong test, constituting an abuse of discretion].)

2. LaMusga.

The trial court here purported to apply the analytic framework applicable to move-away cases set forth in the Supreme Courts decision in LaMusga, supra, 32 Cal.4th 1072.

The superior court in LaMusga transferred primary physical custody from mother, who wanted to move to Ohio, to father if she chose to move. The Court of Appeal reversed, holding that if the custodial parent has a good faith reason to move, he or she cannot be prevented from doing so unless the noncustodial parent makes a substantial showing that a change in custody is essential to prevent detriment to the children. The Supreme Court held in LaMusga, that the Court of Appeal misapplied the holding of its opinion Burgess, supra, 13 Cal.4th 25, and therefore reversed the Court of Appeals judgment with directions to affirm the superior courts postjudgment order transferring custody of the children to their father if the mother moved to Ohio. (LaMusga, supra, 32 Cal.4th 1072, 1078.)

The court in LaMusga clarified the parents respective burdens when the custodial parent seeks to move and the noncustodial parent opposes the move. First, the custodial parent has a statutory presumptive right to change the childs residence, absent evidence the proposed move would prejudice the childs welfare. (LaMusga, supra, 32 Cal.4th at pp. 1094, 1087.) He or she need not demonstrate that the proposed move is necessary. (Id. at p. 1088.) The court also reaffirmed its holding in Burgess that 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. (LaMusga, supra, 32 Cal.4th at p. 1093; Burgess, supra, 13 Cal.4th at pp. 32-33.)

In contrast, the noncustodial parent opposing the move bears the initial burden of showing that the proposed relocation of the child[]s residence would cause detriment to the child, requiring a relocation of the childs custody (LaMusga, supra, 32 Cal.4th at p. 1078) and has a substantial burden to show that a different custody arrangement would be in the childs best interest (id. at p. 1088), although he need not show that a change in custody is essential. (Id. at pp. 1078, 1097-1098.) The court in LaMusga did not describe the degree of detriment which must be shown, although it has since indicated the noncustodial parent must make a substantial showing. (In re Marriage of Brown and Yana (2006) 37 Cal.4th 947, 960 [holding no evidentiary hearing on move-away application is required if noncustodial parent makes insubstantial or legally insufficient showing of detriment]; see LaMusga, supra, 32 Cal.4th at p. 1088, citing Burgess, supra, 13 Cal.4th at p. 38.)

Once the superior court finds the noncustodial parent has borne his burden of showing that the proposed move will be detrimental to the child, it must then perform the delicate and difficult task of determining whether a change in custody is in the best interest of the children. (LaMusga, supra, 32 Cal.4th at p. 1078.) Neither parent is assigned the burden of persuasion to justify his choice of residence, as the statutory policy promoting frequent and continuing contact with both parents (Fam. Code, 3020) does not limit the trial courts broad discretion to determine in light of all the circumstances, what custody arrangement serves the best interest of minor children. [Citation.] (LaMusga, supra, 32 Cal.4th at p. 1088, quoting Burgess, supra, 13 Cal.4th at p. 34.)

Finally, among the factors that the court ordinarily should consider when deciding whether to modify a custody order in light of the custodial parents proposal to change the residence of the child are the following: the childrens interest in stability and continuity in the custodial arrangement; the distance of the move; the age of the children; the childrens 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 interests; 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.)

3. The Trial Court Abused Its Discretion.

Mother was Davids custodial parent: a prior custody and visitation order established this fact and mediator Medaris report indicated mother remained the custodial parent at the time of the hearing.

The trial courts statement to mother at the outset of proceedings that [t]his is going to be your burden reflects its apparent and mistaken belief that mother bore the burden of proof in these proceedings to justify retaining custody of David following a proposed move. As the Supreme Courts opinion in LaMusga, supra, 32 Cal.4th 1072, makes clear, she does not; as the custodial parent, she has the presumptive right to move and take David with her.

It is the noncustodial parent with visitation rights -- here, father -- who carries the burden of proving mothers decision to move is detrimental to the child. (Marriage of Abargil, supra, 106 Cal.App.4th 1294, 1298-1299; accord, LaMusga, supra, 32 Cal.4th at p. 1086.) The court here impliedly found -- consistent with mediator Medaris findings -- that father sustained his initial burden to show that the proposed move would be detrimental to David because the boy would lose frequent contact with his father if he were to move with mother to Hawaii. It was within the courts discretion to do so. (LaMusga, supra, 32 Cal.4th at p. 1095.) But because the court mistakenly assigned an initial burden of proof to the mother, we cannot determine whether that mistake affected its subsequent conclusion in fathers favor. The court may have believed that -- once father made a showing of detriment -- the burden shifted to mother to justify continuing the existing custody arrangement. As we have explained, that is not the case. (LaMusga, supra, 32 Cal.4th at p. 1088.)

Having once determined that a move would be detrimental to David, the court should then have determined what custody arrangement would be in Davids best interests. (LaMusga, supra, 32 Cal.4th at p. 1078.) It did not; instead, it purported to weigh relative detriment: And I have to measure the detriment of the absence of mother versus the detriment of the absence of father, and I think Ms. Medari has it right. I think the detriment of the move outweighs the detriment of staying here. [] So Im going to adopt her recommendation concerning the move, and find that the detriment of the move outweighs the detriment of staying behind. The courts exclusive focus on perceived potential detriment was error: if evidence of detriment due to geographical separation were to mandate a change in custody, the primary custodial parent would never be able to relocate. (Id. at p. 1095.)

Moreover, even assuming the court intended its finding of relative detriment to stand as a proxy for an analysis of Davids best interests, the record is bereft of evidence to support an implicit conclusion that transferring custody to father if mother moves to Hawaii would be in Davids best interest. For example, there was no evidence of the details of Davids relationship with either parent, no evidence of how he spends his time in either home, no evidence concerning the established patterns of care he receives from either parent, and no evidence of either parents proven ability to provide and care for the child on a full-time basis. (See In re Marriage of Edlund & Hales (1998) 66 Cal.App.4th 1454, 1473-1474 [court properly considered in move-away case whether noncustodial parent was adequately prepared to assume primary physical custody of child].)

Absent any evidence of that nature, we cannot presume the trial court properly considered each of the factors identified by the Supreme Court in LaMusga or had the information necessary to enable it to weigh the harm that may result from disruption of established patterns of care and emotional bonds with the primary caretaker. (Cf. LaMusga, supra, 32 Cal.4th at p. 1093.)

Because the trial court could not properly consider all of the factors set forth in LaMusga, its order denying mothers move-away request and granting fathers request for a change in custody must be reversed and the matter remanded for an exercise of informed discretion by the trial court. A discretionary order based on the application of improper criteria or incorrect assumptions is not an exercise of informed discretion and is subject to reversal even though there may be substantial evidence to support that order. (Linder v. Thrifty Oil Co. (2000) 23 Cal.4th 429, 435-436; People v. Belmontes (1983) 34 Cal.3d 335, 348, fn. 8; see In re Carmaleta B. (1978) 21 Cal.3d 482, 496 [[d]iscretion can only be truly exercised if there is no misconception by the trial court as to the legal basis for its action]; People v. Marquez (1983) 143 Cal.App.3d 797, 803 [[a]n erroneous understanding by the trial court of its discretionary power is not a true exercise of discretion].)^[3]

In view of our conclusion the matter must be remanded, we do not consider mothers remaining contention the courts order constituted an improper conditional error.

DISPOSITION

The order is reversed and the matter is remanded with directions that the trial court conduct a new hearing and issue a new order in consideration of the applicable standards as explained in this opinion. Mother is entitled to costs on

appeal. (Cal. Rules of Court, rule 8.276(a)(1).)

SIMS , Acting P.J.

We concur:

MORRISON , J.

HULL, J.

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^[1] Family Code section 3111 provides: (a) In any contested proceeding involving child custody or visitation rights, the court may appoint a child custody evaluator to conduct a child custody evaluation in cases where the court determines it is in the best interests of the child. The child custody evaluation shall be conducted in accordance with the standards adopted by the Judicial Council pursuant to Section 3117, and all other standards adopted by the Judicial Council regarding child custody evaluations. If directed by the court, the court-appointed child custody evaluator shall file a written confidential report on his or her evaluation. At least 10 days before any hearing regarding custody of the child, the report shall be filed with the clerk of the court in which the custody hearing will be conducted and served on the parties or their attorneys, and any other counsel appointed for the child pursuant to Section 3150. The report may be considered by the court.

(b) The report shall not be made available other than as provided in subdivision (a). . . .

(c) The report may be received in evidence on stipulation of all interested parties and is competent evidence as to all matters contained in the report.

^[2] Family Code section 7501 states: [Parents right to determine residence of child] (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 [Burgess, supra,] 13 Cal.4th 25, and to declare that ruling to be the public policy and law of this state.

^[3]For the courts guidance on remand, we note that the reasons for the proposed move is a proper factor for the courts consideration in considering what custody arrangement would serve Davids best interests (LaMusga, supra, 32 Cal.4th at p. 1101). The trial court explicitly rejected fathers suggestion that mother had any desire to frustrate his relationship with David, and implicitly accepted mothers given reason -- that she planned to live with David and her new husband in an intact, two-parent family. However, the focus in these proceedings on how mother met her new husband was improper: whether mother met her new husband at a church social or in a dating group organized over the internet is irrelevant to the courts assessment of whether, following their marriage, it is in Davids best interests to continue in mothers custody.