Bolen v. Van Wormer CA4/3 ( 2016 )

Filed 5/25/16 Bolen v. Van Wormer CA4/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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
FOURTH APPELLATE DISTRICT
DIVISION THREE
AMANDA C. BOLEN,
Plaintiff and Appellant, G051545
v. (Super. Ct. No. 04P000144)
JOSEPH WILLIAM VAN WORMER, OPINION
Defendant and Respondent.
Appeal from an order of the Superior Court of Orange County,
Linda Lancet Miller, Judge. Affirmed in part and reversed in part.
Law Offices of Jim P. Mahacek and Jim P. Mahacek for Plaintiff and
Appellant.
Law Offices of Dorie A. Rogers, Dorie A. Rogers, Lisa R. McCall; Jarvis,
Krieger & Sullivan and Wendy Fountain for Defendant and Respondent.
* * *
INTRODUCTION
Amanda C. Bolen (Amanda) is the mother of Mason, who was born in
October 2003. Joseph William Van Wormer (Joseph) is Mason’s father. Amanda and
Joseph have never been married. Under a stipulated judgment, Amanda was given sole
physical custody, and Amanda and Joseph were given joint legal custody, of Mason.
Amanda appeals from the trial court’s order denying her request to move with Mason to
Michigan, where her parents reside. The trial court found that if Amanda moved to
Michigan, it would be in Mason’s best interest to stay in California with Joseph and to
give Joseph primary physical custody. When Amanda announced she would not move to
Michigan in light of the court’s decision, the trial court ruled on Joseph’s request for
more parenting time and awarded Amanda and Joseph joint physical custody of Mason.
A parent with sole physical custody, such as Amanda, has the presumptive
right to relocate with the minor child. (Fam. Code, § 7501, subd. (a).) The noncustodial
parent, such as Joseph, may rebut that presumption by showing the proposed relocation
would cause detriment to the minor child. (In re Marriage of Brown & Yana (2006) 37
Cal. 4th 947, 957 (Brown & Yana).) The central issue in this case is whether the trial
court erred by determining, at the outset of trial, that Joseph had met his threshold burden
of showing that Mason would suffer detriment from the proposed move and by placing
the burden on Amanda to show the move would be in Mason’s best interest.
We conclude the trial court did not err and affirm the order denying
Amanda’s move-away request. To reach that conclusion, we resolve several subissues,
as follows: (1) moving a minor child a substantial distance from the noncustodial
parent’s residence, coupled with a showing of detriment to the minor child from the
move, constitutes changed circumstances justifying a change in custody; (2) the trial
court did, in fact, find that Joseph had met his burden of showing prejudice and did shift
the burden to Amanda; (3) the court’s finding that Joseph had shown detriment on a child
was properly based on a custody investigation report, Amanda’s move-away request, and
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Joseph’s responding declaration, and the court did not err by making that finding before
taking evidence at trial; (4) to rebut Amanda’s presumptive right to relocate with Mason,
Joseph was required only to make a prima facie showing of detriment; and (5) Joseph met
his burden of showing detriment.
Because Joseph made the initial showing of detriment, he established a
change in circumstances rebutting Amanda’s presumptive right to move with Mason. As
a consequence, the trial court could reconsider the existing custody order in light of the
evidence presented at trial.
Amanda does not challenge the decision to give Joseph more parenting
time; she argues, however, the trial court erred by modifying the physical custody order
by awarding Joseph and her joint physical custody of Mason. She is correct on that point.
Joseph requested sole physical custody of Mason in the event Amanda moved. Joseph
did not request joint physical custody of Mason in the event she did not move. We
therefore reverse that part of the order granting Amanda and Joseph joint physical
custody of Mason and in all other respects affirm.
BACKGROUND
Mason was born in October 2003. Amanda and Joseph were never married
to each other; Mason was conceived during a brief relationship. Amanda and Joseph met
at a treatment facility while each was residing in a sober living home.
In January 2006, Amanda and Joseph agreed to a stipulated judgment
establishing parental relationship (the Judgment) which awarded Amanda sole physical
custody, and awarded Amanda and Joseph joint legal custody, of Mason. The Judgment
also included provisions for a parenting plan, visitation, and child support. Joseph had
parenting time with Mason on Wednesday evenings for three hours, and from 7:00 p.m.
on Friday to 7:00 p.m. on Sunday every other week. Holidays were divided between
Amanda and Joseph.
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In April 2014, Amanda filed a request for an order allowing her to move
with Mason to Rockford, Michigan. Amanda sought to move to Michigan to be closer to
her parents, to rejoin her extended family, and to take advantage of an offer of
employment. She declared she intended the move in good faith and not to frustrate
Joseph’s contact with Mason.
Joseph filed a responsive declaration objecting to Amanda’s request for a
move-away order. Joseph declared that if Mason were allowed to move with Amanda,
“our relationship with him will be severely impacted, I will not be able to participate in
his day-to-day life, and will not be able to support him in school, or his extracurricular
activities.” Joseph also filed a request for an order awarding him sole physical custody of
Mason in the event Amanda moved to Michigan.
The trial court ordered a full child custody investigation. The confidential
report of that investigation (the CCI Report) was submitted in August 2014. The CCI
Report recommended granting Amanda’s move-away request.
TRIAL PROCEEDINGS AND EVIDENCE
I.
Finding of Detriment and Determination of
Burden of Proof
Trial took place over five days in September 2014. At the outset, the court
stated that, after reading the CCI Report and the “moving and responding papers,” it had
determined Mason would suffer detriment if Amanda were permitted to move with him
to Michigan. “[T]herefore,” the court stated, “the burden is on [Amanda] to show the
move is in the best interests of [Mason].” The trial continued that day and over four more
days. Amanda presented her case first. Testimony was received from Amanda, Joseph,
Amanda’s mother, Dawn Bolen (Mrs. Bolen), Amanda’s father, Jeffrey Bolen
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(Mr. Bolen), Joseph’s father, Jay Van Wormer (Mr. Van Wormer), and Joseph’s
girlfriend, Sandy Lingen Felter.
II.
Evidence at Trial
A. Amanda
Amanda testified as follows.
Mason is the only child of Amanda and Joseph, who have never been
married to each other. Amanda has complied with the Judgment since its entry and has
always provided Joseph the visitation to which he was entitled. She has had no
significant parenting arguments with Joseph, and nothing has changed over the years
regarding her ability to raise Mason.
Amanda wants to move to Michigan for both economic and emotional
reasons. Economically, it would be less expensive to raise children in Michigan than in
California. Emotionally, Amanda would have in Michigan the support of an extended
family of about 62 people, about half of whom were children, within a 15-mile radius.
Amanda’s parents, who have a substantial role in Mason’s life, have moved to Michigan,
and Amanda’s brother and sister are planning to move there. In Michigan, Mason would
attend school with four of his cousins. Amanda has received an offer of employment in
Michigan through a family member.
Amanda’s father, Mr. Bolen, has made the downpayment on a home for
Amanda in Michigan. The home has a backyard, would provide more living space than
Amanda’s current residence in California, and would allow Mason to have his own
bedroom. If Amanda did not move to Michigan, she would not be able to afford to stay
in the same house in California.
Amanda worked for Mr. Bolen’s company but lost her job after the
company was sold. She has begun attending court reporter school, was one year into a
two-year program, and could finish school in Michigan.
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Amanda’s parents have played a substantial role in Mason’s life. They
were at the hospital when Mason was born, and Amanda went directly to her parents’
home from the hospital. Amanda and Mason lived with her parents for about three years.
Amanda’s parents are part of her support network and helped her care for Mason. Mason
takes vacation with Amanda’s parents two or three times per year. Amanda’s parents
helped pay for pregnancy and childbirth expenses and have provided her financial
support.
At the time of trial, Mason was in fifth grade. Mason, who started playing
sports at age five, plays football, baseball, and lacrosse, and has just started karate.
Mr. Bolen pays the registration fees for Mason’s sports teams. In Michigan, Mason
would be able to participate in those activities with his cousins. Amanda is the “team
mom” for baseball and volunteers some of the time for football. When Mason is in her
custody, Amanda takes him to football practices and games. Joseph did not attend
Mason’s games until about a year ago, when he started regularly attending football
games.
In 2009, when Mason was six years old, Amanda married Mr. Dash and
had two children by him. Those two children were, respectively, four yours of age and
23 months of age at the time of trial. Mason has a good relationship with his half
siblings, and Amanda believes he would suffer if separated from them. Although
Amanda’s marriage to Dash started out happy, in the previous year, there had been an
incident regarding Dash’s drug abuse in which he accosted Amanda in front of her three
children and stabbed her in the shoulder with a ballpoint pen. Amanda immediately
reported the incident to the police. Dash was removed from the house and Amanda filed
for divorce less than three weeks later. Mason attended therapy to address the
experience. Amanda never saw Dash strike or otherwise abuse Mason.
Dash stopped providing for Amanda and her children after she filed for
divorce. He was incarcerated for a while, and Amanda obtained a temporary restraining
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order against him. He violated the restraining order and was jailed as a result. He has
been released from jail, and Amanda is afraid he will continue to violate the restraining
order. Amanda wants to move to Michigan in part to get away from Dash.
Amanda encourages Mason to use his cell phone to call Joseph and does
not monitor the calls. Mason also uses the cell phone to talk to friends. If Amanda
moved with Mason to Michigan, she would not stop him from calling his friends in
California. Mason changes sports teams every year and, as a consequence, is constantly
changing his groups of friends. Mason is “bubbly and outgoing” and makes friends
easily. Amanda had visited the neighborhood in Michigan in which she would be living
and had no concerns about Mason’s ability to make new friends there.
Mason attended Catholic school for the first through third grades then, for
financial reasons, was placed in public school. Amanda did not consult Joseph before
enrolling Mason in public school, did not provide Joseph with the registration forms, and
did not give the school Joseph’s e-mail address. The transition did not affect Mason’s
grades and Mason had no difficulty making friends at the new school. Amanda believes
Mason would have no difficulty making a smooth transition from Southern California to
Michigan.
Amanda attends school full time and has a part-time nanny. Mr. Bolen
pays the cost of the nanny, loans Amanda $2,150 per month to pay for rent, pays for her
car, and pays her legal fees. If she moves to Michigan, she would not need a nanny
because her extended family would fill that role. When Amanda returns home from
school, she cooks dinner, bathes her children, and helps with homework. Amanda has a
daily routine with Mason and tries to instill values in him through schoolwork, chores,
and team sports.
Until three years ago, Joseph had never asked for vacation time with
Mason. Amanda always granted Joseph’s request for vacation time. Mason has enjoyed
vacation time with Amanda’s parents. She has allowed Mason to go to Big Bear with
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Joseph’s parents if the trip was over a weekend on which Joseph had parenting time, and
has allowed Mason to spend additional time with Joseph’s mother. Amanda had never
tried to limit Mason’s contact with Joseph, never tried to alienate Mason from Joseph,
and never said negative things about Joseph to Mason. Amanda values Mason’s
relationship with Joseph and encourages that relationship. Amanda’s intent in moving to
Michigan is not to minimize Mason’s relationship with Joseph. After moving to
Michigan, Amanda would continue to encourage Mason to contact Joseph by telephone,
e-mail, Skype, and FaceTime, and would honor Joseph’s visitation rights.
Mr. Bolen, not Amanda, first informed Joseph of the planned move to
Michigan. Amanda also discussed the move to Michigan with Joseph but “[i]t wasn’t
very well received.” She participated in voluntary mediation about the proposed move
and had been open and honest about it with Joseph.
Joseph takes Mason to church, and Amanda supports his instilling Christian
values in Mason. Although Mason was baptized a Roman Catholic and has followed
Catholic tenets, Amanda has no objection to Mason attending a non-Catholic Christian
church with Joseph.
Amanda believes moving to Michigan would be in Mason’s best interest.
She would not do anything to intentionally hurt him. She had been considering moving
to Michigan since the time she was married to Dash and was not planning to move in
order for Mr. Bolen to continue to support her.
Amanda consulted Joseph before registering Mason for baseball and
lacrosse. When she registered Mason for football, she provided Joseph’s name,
telephone number, and e-mail address. She did not give Joseph the contact information
for the football coach because she was not given authorization to do so.
Amanda provided information to Joseph regarding Mason’s school and
they jointly attended parent-teacher conferences until Mason was in fourth grade, when
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Joseph held his own separate conference. She also has kept Joseph informed regarding
back-to-school nights and open houses.
Joseph asked Amanda for midweek overnight visits with Mason. Amanda
allowed midweek visits on three or four occasions but did not allow them to continue
because Mason was late to school and would forget his homework. The homework file
did not go with Mason to Joseph’s house but stayed at Amanda’s house. Mason has
expressed an interest in spending more time with Joseph. Amanda now does not permit
Mason to have midweek visits with Joseph or for Mason to spend Sunday night at
Joseph’s home.
Flight time from Southern California to Grand Rapids, Michigan, is about
six hours. Amanda and Mason have talked at length about travelling and both have
agreed, “it would be okay.”
Amanda sees Mr. Bolen as playing an active part of Mason’s life, meaning
“he is a supporter in his extracurricular activities, he is a male role model for him to talk
to other than his father, if he so chooses.” She sees Joseph as having “[t]he same” role.
B. Joseph
Joseph testified as follows.
Joseph believes it would be in Mason’s best interest to have “steady,
consistent, access to both parents,” which Mason would not have if Amanda were
allowed to move with him to Michigan. Joseph believes that moving to Michigan, where
Amanda would be supported financially by her parents, was “the easy way out” for her to
avoid becoming self-sufficient and learning to support her family. Joseph would like to
have been consulted before Mr. Bolen provided more financial support for Mason.
Joseph agreed to the parenting time set forth in the Judgment. Amanda had
never denied him his right to parenting time. He does not use all of his allotted vacation
time with Mason. Joseph has never had difficulty discussing minor modifications to the
parenting schedule. When Amanda was married to Dash, Joseph met with them several
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times to request more time with Mason. Joseph expressed concern that, while Amanda
was married to Dash, Mason would “act[] out.” When with Joseph, Mason did not “act
out” and his “emotional well-being” was much different.
Dash had used a paddle to inflict corporal punishment. Joseph did not learn
about the paddle until Mason mentioned that Mr. Bolen had taken it away. Joseph told
Mason that no one was to hit him with anything. Joseph met with Amanda and Dash,
who admitted having a paddle.
Amanda failed to inform Joseph that she was the victim of abuse by Dash
and that Mason was in an abusive home. Joseph is glad that Dash was “no longer in her
life” but is not “one hundred percent” sure of Amanda’s parenting ability. Joseph
believes Amanda acted responsibly by reporting Dash to the police and obtaining a
restraining order against him.
Joseph had read the CCI Report and does not agree with its
recommendation that the court grant Amanda’s move-away request. Joseph believes the
evaluator “did a bad job at highlighting my relationship and the importance of my
relationship with Mason.” The evaluator did not consider that “if [Mason] were to move,
Amanda being his mother could not teach him to be a man. That was my job. [¶] It is
not the job of . . . [t]he grandfather. It is my job.” Joseph believes: “[T]he evaluation
did a poor job at uncovering the impact it’s already had on Mason and the impact it will
have on Mason. . . . [¶] And the difficulties in the travelling, and the problems that could
arise in that impact, that it’s going to have [on] him.”
In support of his request for custody, Joseph testified: “If Amanda were to
move, Mason’s environment would change. It would disrupt the environment. [¶] If he
comes with me, he would have a lot better, well adjusted to come live with me. [¶] He
would stay in the same school, be able to hang out with the same people, play on the
same sports teams. [¶] . . . [¶] I could provide him a little more stable environment. [¶]
We attend church regularly. He participates in church, just as I do. We participate
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together.” Joseph believes he is teaching Mason a better value system than the system
taught him by Amanda and her family. In particular, Joseph believes Amanda’s family
tries to buy Mason’s approval, and “[t]hat’s not how I want to raise my son.”
Joseph believes if Mason were to move to Michigan, he “would lose the
intimacy” he has with Mason and would “lose the ability to create the value system” he
has with him. Joseph acknowledged that, if he obtained custody of Mason, his
relationship with Amanda and her other children would be disrupted.
Joseph lives with his parents in a four-bedroom, two-bathroom, attached
home with a yard. Mason has his own bedroom and shares a bathroom with Joseph.
On Wednesday evenings, Joseph picks up Mason at 5:30 p.m., and, if he is
playing football, takes him to practice. Joseph watches the practice “for some of the
time.” After practice, Joseph spends an hour and 15 minutes with Mason before
returning him to Amanda at 8:30 p.m. Joseph has Mason every other weekend from
Friday at about 5:30 p.m. to Sunday at 7:00 p.m. Joseph attends an Alcoholics
Anonymous meeting on Friday night while Mason attends a children’s program. On
Saturday morning, Joseph and Mason go to one of Mason’s sporting events. Later in the
day, they might go to the beach, a barbecue, or the movies. On Sunday morning, Joseph
and Mason attend church (if they did not attend on Saturday night), and afterwards do
chores and cook dinner. Joseph has taken Mason to soccer, baseball, and football games,
and to Disneyland. On weekends in which Joseph does not have Mason, Joseph attends
his sports activities.
About three years earlier, Joseph met with Amanda and Dash to discuss
extending Joseph’s Wednesday visit with Mason to an overnight. Joseph did receive a
couple of overnight visits. On one such visit, Joseph was late getting Mason to school
because it was Joseph’s first time taking Mason to school and Joseph did not know the
routine. Additional overnight visits were stopped. Joseph was told they were “too much
of a change,” leading him to believe he had done something wrong.
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During the prior year, Joseph contacted Mason’s school and learned that
Mason was struggling. Amanda had not told him. Joseph asked for a followup
parent-teacher conference, which Amanda did not attend. A conflict arose between
Joseph and Amanda over Mason’s attendance at the year-end school open house.
Amanda told Joseph that Mason was not to attend; Joseph contacted Mason’s teacher,
who said Mason should be there. Amanda said she was not going to go to the open
house, but when Joseph and Mason arrived, she was there, and “it was a little tense[].”
Communication from Amanda to Joseph about Mason’s school activities
“hasn’t been at the strongest point.” Joseph feels as though he received no support from
Amanda to address Mason’s behavior issues at school. The last time Amanda had
informed Joseph of Mason’s behavior issues was when Mason was in preschool or
kindergarten. Joseph participated in Mason’s most recent back-to-school night and
signed up for a parent-teacher conference.
Amanda did not consult Joseph before making educational decisions for
Mason. When Mason was switched to public school, Amanda after the fact informed
Joseph that Mason had been enrolled in a particular school. Although Joseph did not
object to the school, he would have liked to have been consulted beforehand. Amanda
notified Joseph the day before the enrollment deadline that Mason should play football,
the cost was $400, and Mr. Bolen would not pay for it. Joseph was leaving the next day
to go on vacation, he and Amanda had never discussed football, and he had not budgeted
the money for it. Joseph agreed to pay half the cost. Amanda did not give Joseph contact
information for football and did not tell him about the league and the games.
Joseph recently asked Amanda several times about having extra time with
Mason. She said no, but did agree once to allow Mason to spend a night with Joseph at
his parents’ home in Big Bear. Mason could not spend an extra night because Amanda
had scheduled a pitching lesson for him in the early afternoon. Joseph found that he was
often denied extra time with Mason because Amanda had scheduled a conflicting
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sporting activity. Joseph often is asked by Amanda to shift parenting times. Joseph has
always agreed to allow Mason to travel to see Amanda’s parents.
If Mason were to stay in California, Joseph would have him continue at the
same school (as long as he was in the same school district), keep him in the same sports,
and maintain relationships with his friends.
Earlier that year, Joseph and his girlfriend took Mason and his friends,
Abby and Josh, on a camping trip. The three children slept in a tent of their own, while
Joseph and his girlfriend slept in a separate tent next to them. Other campers were at the
site. When Mr. Bolen learned of the sleeping arrangements, he sent Joseph a strongly
worded text message criticizing Joseph’s judgment. The message read: “Joe, I spoke to
Mason to find out how your vacation, bonding, camping trip went. he then told me the #
of people but then told me the sleeping arrangements !! Before you wonder who this
nosey bastard is, Please let me make one thing Unequivocally clear, I was, I am, and I
will be the one constant, consistent male in Mason’s life. Not non existent for years, then
try to be Dad of the year for the past six months!! Now about the sleeping arrangements
and the terrible decision you made to allow three kids (1 girl & 1 13 yr old) to sleep
together, unsupervised [i]n a tent for several nites!! Couple this with you sleeping with
your girlfriend who is older than your mom in another tent. What are you burning for
brains??? Joe you make decisions like these at the same time you claim to have ‘a better
value system’, attend church, etc, etc,. you’re a hypocrite who is thinking with the wrong
head Along these same lines, what type of a[n] example are you to [M]ason?? You have
Sandy overnite [sic] on weekends you have Mason. In closing, when my grandkids are
involved, and I am aware of a[n] indiscretion caused by either my own kids or . . . you, I
would not stand for much if I allowed things to happen that are either unsafe, immoral,
hurtful, etc. Without taking immediate appropriate action. I would strongly suggest you
immediately start to put Mason’s long-term best interests first and foremost!! For those
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of you new to this it is called being a ‘Dad’. Questions ? Call me if any clarification is
needed.” (Italics omitted.)
Joseph was caught off guard by the text message and found it to be “a little
hurtful.” He was not surprised by the message because he “had a history” with
Mr. Bolen. Joseph believes Mr. Bolen does not respect him or care for his relationship
with Mason. Mr. Bolen had been aggressive and violent in the past and was “typically
negative of some of the things that I am doing.” Joseph testified: “Mr. Bolen has—in
my opinion, has always viewed me as someone that he wishes will go away.” In the
hospital, when Mason was born, Mr. Bolen asked Joseph to sign a document waiving
paternity rights. Joseph did not sign it.
Mr. Bolen was the first to approach Joseph about the move to Michigan.
Mr. Bolen called Joseph and requested having a family meeting, and a separate meeting
with Amanda, to talk about the proposed move. Joseph got the impression that Amanda
did not yet know about the move.
Amanda did not inform Joseph when Mason misbehaved. On one
occasion, she had Mason’s football coaches talk to Mason about his behavior. Amanda
did not tell Joseph or consult him. Joseph believes if Amanda were to move to Michigan
with Mason, she would not consult Joseph about Mason’s medical treatment,
extracurricular activities, or behavior issues. Instead, she will consult Mr. Bolen.
At church, Mason participates in the children’s ministry, has worked on
outreach projects, and has actively supported mission trips to Uganda. These activities
are beneficial for Mason because they help to instill higher values and teach him to be
“selfless.”
Joseph’s grandparents live in Michigan. Mason last saw them three years
earlier when they travelled to California. Joseph has several other relatives living in
Orange County.
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Joseph believes Amanda does not support his relationship with Mason. She
schedules activities during his time with Joseph and will not extend visitation time.
Joseph described his relationship with Mason as “better than it ever has been. [¶] . . .
[W]e continue to build into it and grow. He’s a young adolescent, becoming a teenager.
[¶] It’s an important time. The older he gets, the more we can relate.” Joseph believed
his relationship with Mason would have to change “[s]lightly” if he were to move to
Michigan.
Joseph believes it is important to have both parents consistently involved in
Mason’s life and that his involvement in Mason’s life increase. “[I]t’s very difficult to
co-parent when one is in Michigan and one is here in California.”
C. Mrs. Bolen (Amanda’s Mother)
Mrs. Bolen testified as follows.
Mrs. Bolen met Joseph at a Starbucks café to discuss the proposed move.
Joseph told her his object was to prevent Amanda from moving with Mason to Michigan.
The relationship between Mrs. Bolen and Mason was “very close.” After
giving birth, Amanda and Mason moved into her parents’ home and lived there for three
years. Amanda’s parents see Mason a couple of times per week, attend his sports
activities, and take him on vacation. Mason appeared to enjoy the time he spent in
Michigan with Amanda’s parents.
Mrs. Bolen confiscated the paddle from Dash and told him, “it was not an
appropriate way to correct a child.” Mason interacts well with Amanda’s two other
children and, if separated from them, would miss them.
D. Mr. Bolen (Amanda’s Father)
Mr. Bolen testified as follows.
Mr. Bolen’s relationship with Mason is “very, very close.” They do many
things together. He had been involved “on a daily basis” with Mason’s development—
“from walking to talking, hitting his first ball, catching his first ball, golfing, catching
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ball, coloring and everything a regular—a normal parent would be involved in.”
Mr. Bolen has provided almost “a hundred percent” of Mason’s financial support, and
Joseph never objected to him doing so.
Mr. Bolen criticized Joseph’s decision regarding the sleeping arrangement
on the camping trip. Mr. Bolen would have had a “guys tent” and a “girls tent[].” He
told Joseph he had made “a bad decision by allowing a teenager boy to stay with a little
bit younger boy and a girl.” Mr. Bolen would have been “a little bit more in tune to
what’s going on and I just thought it was a bad decision.” He also criticized Joseph for
taking his girlfriend on the camping trip.
Mr. Bolen sent the text message to Joseph with the intent of criticizing his
parenting decisions. Mr. Bolen did not send the text message to bully or intimidate
Joseph but to urge him to think about his decisions. Mr. Bolen also was critical of Joseph
for having “his head in the computer” and smoking at Mason’s baseball games.
Mr. Bolen could not recall how long ago he saw Joseph smoke and acknowledged that
Joseph had quit smoking.
Mr. Bolen did not order Amanda to move to Michigan and did not threaten
to cut off financial support for her if she did not move. He lives in Michigan, having sold
his house in California the previous March, and has a large extended family in the
Rockford, Michigan, area. He made a downpayment on a house in Rockford for Amanda
with the expectation that she would make the monthly payments. The house has five
bedrooms and is set on two acres. There are 20 to 24 homes on the street and many
children live in the neighborhood.
Mason lived with Mr. Bolen until Mason was between three and four years
old. During the past six months, he has helped Mason with his homework three or four
times and has attended many of Mason’s sports activities.
Mr. Bolen telephoned Joseph to discuss the proposed move to Michigan.
Mr. Bolen told Joseph, “you’re a big part of this” and suggested a meeting with Joseph
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and his parents to discuss the pros and cons. Joseph said he would get back within a few
days. Mr. Bolen had spoken to Mason about moving to Michigan, took Mason to see the
home he had purchased for Amanda, and had Mason select his bedroom. Mr. Bolen had
spoken to Mason about putting in a driving range, pitching machine, batting cage, and
basketball court on the property in Michigan. Mr. Bolen also had spoken to Mason about
where he would be attending school in Michigan.
When asked on cross-examination what role Joseph should have in
Mason’s life, Mr. Bolen testified, “helping with school, teaching him to be a good young
man.” The court asked, “[s]imilar to yours?” Mr. Bolen responded: “Yeah. [¶] . . . [H]e
is the father and . . . I would imagine that he would do that.”
When cross-examined about the text message, Mr. Bolen testified, “I still
am the one consistent [male role model]—I’m there. I’m . . . there all the time and I will
be . . . that same guy that he could count on, that he’s always been able to count on. [¶]
Me. And he always counts on me.” Mr. Bolen “kn[e]w” that Joseph had not been
constant in Mason’s life. Mr. Bolen testified that Joseph “skipped out” of visits, could
not make it for weekend parenting time, and had taken off on vacations. In a “perfect
world,” Joseph’s relationship with Mason would be more important than Mr. Bolen’s
relationship with him. In a perfect world, Joseph “would be the man” or “the pregnancy
wouldn’t have occurred.”
When asked whether he or Joseph was more important in Mason’s life,
Mr. Bolen testified: “I’m there. [¶] I been there. . . . I would say, basically, there’s the
new improved Joe Van Wormer over the last few months[.] . . . I wished that he would
have stepped up years ago . . . but he hasn’t. He never did. [¶] And now he is and he’s
playing like he’s a great dad. . . . For the last six months, he’s been doing everything.
That’s good. Wonderful. Great.”
Mr. Bolen did not ask Joseph to waive his parental rights to Mason. When
Mason was born, Joseph approached Mr. Bolen in the hospital and asked, “what shall I
17
do now?” Mr. Bolen said he could not answer that question, but Joseph “could walk
away from it” or “step up.”
E. Mr. Van Wormer (Joseph’s Father)
Mr. Van Wormer testified as follows.
Mason stays with Mr. Van Wormer when Joseph has parenting time on
Wednesday evenings and every other weekend. Joseph started living with his parents
about three years earlier. Mr. Van Wormer owns a home in Fountain Valley and a home
in Big Bear. Mason had been to the home in Big Bear once and that was over a weekend
on which Joseph had parenting time.
Mr. Van Wormer attends Mason’s football games and baseball games. He
described his relationship with Mason as “close” and believes Mason felt comfortable
spending time and talking with him. Joseph is a good parent and has never struck or
spanked Mason. Mason respects Joseph.
Mr. Van Wormer has gotten along well with Mr. Bolen except when he
announced that Mason would be moving to Michigan. The announcement came at one of
Mason’s lacrosse games. Mr. Bolen mentioned he would be moving his children and
Mason to Michigan because it would be cheaper for him to support them there than in
California. Mr. Bolen did not ask for permission but stated, “that was the plan.”
Mr. Van Wormer would have no concerns over Joseph’s parenting if
Joseph had custody of Mason. Mr. Van Wormer worked from home and would be able
to help parent Mason.
F. Felter (Joseph’s girlfriend)
Felter testified as follows.
Felter has known Joseph for about six years and has been dating him for a
little over two years. She has observed Joseph and Mason together. Mason has no
anxieties around Joseph and enjoys spending time with him. She sees Mason when
Joseph has parenting time and attends many of Mason’s football games. Joseph does not
18
use his computer or smoke at Mason’s games. Joseph and Mason engage in various
activities together, including cooking, rollerblading, baseball, soccer, and watching
movies. Felter accompanies Joseph and Mason to church services.
Felter has heard Mason ask Joseph if he could stay longer for visits. She
has seen Mason ask Amanda for more time with Joseph, but Amanda would not allow it.
Mason’s relationship with Joseph’s parents was “[g]ood.”
III.
The Trial Court’s Findings and Ruling
At the conclusion of trial, the court orally made findings. The court found
that “if [Amanda] moves to Michigan, it is in Mason’s best interest to remain here with
[Joseph] to have primary physical custody.” Among other things, the court found that
Amanda was not moving to deprive Joseph of parenting time. The court found that
Mr. Bolen financially and emotionally controlled Amanda and had advocated the move,
and if Amanda were to move with Mason to Michigan, then Joseph’s relationship with
him would be over (“I think if you move, with Mason, that [Joseph] is gone. He’s
done.”). The move would impair Joseph’s ability to instill his values with Mason on a
daily basis, and he would be able to have only a limited effect on Mason’s life. The court
agreed with Joseph that if Mason moved away, Joseph would be losing the intimacy of
“little moments” of parenting, such as listening to Mason while driving in the car.
After the court made those findings, Amanda represented she did not intend
to move. The trial court then ruled on Joseph’s request for increased parenting time. The
court modified Joseph’s parenting time to Thursday after school to Monday morning,
every other week, and Thursday to Friday alternating weeks. Holidays are to be divided
between Amanda and Joseph. The court ordered “joint physical custody with unequal
parenting time.”
In February 2015, the trial court issued a written order and statement of
decision reflecting the findings made orally on the record. The court found that Amanda
19
is “a good mom” and Joseph is “a good dad.” The court ordered that Joseph is to have
physical custody of Mason if Amanda moves to Michigan. Because Amanda had
informed the court she intended to stay in California, the court granted Joseph’s request
for more visitation time, finding it was in Mason’s best interest to spend more time with
him. The court modified physical custody to give Amanda and Joseph joint physical
custody of Mason with unequal parenting time. Amanda timely filed a notice of appeal.
DISCUSSION
I.
Legal Framework and Standard of Review
“Once the trial court has entered a final or permanent custody order
reflecting that a particular custodial arrangement is in the best interest of the child, ‘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’ that custody arrangement.
[Citation.]” (Brown & Yana, supra, 37 Cal.4th at p. 956).) The changed circumstance
rule, which is a variation on the best interest standard, applies when a parent seeks
modification of a final judicial custody determination. (Ibid.) “Under the changed
circumstance rule, custody modification is appropriate only if the parent seeking
modification demonstrates ‘a significant change of circumstances’ indicating that a
different custody arrangement would be in the child’s best interest. [Citation.]” (Ibid.)
A parent with sole physical custody “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.” (Fam. Code, § 7501, subd. (a).) In a move-away case, a
change of custody from the custodial parent to the noncustodial parent is justified only if,
as a result of relocation with the custodial parent, the minor child will suffer detriment
making a change in custody essential or expedient for the child’s welfare. (In re
20
Marriage of Burgess (1996) 13 Cal. 4th 25, 38.) “What this principle means in
application is that a custodial parent seeking to move is not obliged to establish a need or
even a justification for the move, so long as it will not be detrimental or prejudicial to the
child’s interests.” (In re Marriage of Melville (2004) 122 Cal. App. 4th 601, 611.)
A custodial parent does not have an absolute right, but only a presumptive
right, to move with the minor child. (Brown & Yana, supra, 37 Cal.4th at p. 957.) To
overcome that presumption, the noncustodial parent bears “the initial burden of showing
that the proposed relocation of the child’s residence will cause detriment to the child,
requiring a reevaluation of the existing custody order.” (Id. at pp. 959-960.) This
threshold showing of detriment is made on the parties’ allegations, applications,
supporting declarations, and any offers of proof. (Id. at pp. 962-963.) If the noncustodial
parent meets this burden of showing detriment, then an evidentiary hearing may be
conducted and the trial court performs “‘the delicate and difficult task of determining
whether a change in custody is in the best interests’ of the child.” (Id. at pp. 960, 962.)
In deciding whether to modify custody, the court considers various factors,
including those identified in In re Marriage of LaMusga (2004) 32 Cal. 4th 1072, 1101
(LaMusga). The factors identified in LaMusga are (1) the child’s interest in stability and
continuity in the custodial arrangement; (2) the distance of the proposed move; (3) the
child’s age; (4) the child’s relationship with both parents; (5) 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”; (6) the child’s wishes if the child is mature enough for such an inquiry to be
appropriate; (7) the reasons for the proposed move; and (8) the extent to which the
parents currently are sharing custody. (Ibid.) Amanda does not argue that the trial court
failed to properly consider the LaMusga factors or that substantial evidence does not
support the court’s findings on those factors.
21
“The standard of appellate review of custody and visitation orders 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. [The reviewing court is] required to uphold the ruling if it is correct
on any basis, regardless of whether such basis was actually invoked. [Citation.]” (In re
Marriage of Burgess, supra, 13 Cal.4th at p. 32.) “This discretion may be abused by
applying improper criteria or by making incorrect legal assumptions.” (Jane J. v.
Superior Court (2015) 237 Cal. App. 4th 894, 901.)
II.
Relocating a Minor Child Coupled with Detriment
to the Child Can Constitute Changed Circumstances.
The Judgment was a final custody order awarding Amanda sole physical
custody of Mason. Amanda therefore had the presumptive right to move with Mason to
Michigan. (Brown & Yana, supra, 37 Cal.4th at p. 957.) To overcome that presumption,
Joseph, as the noncustodial parent, bore “the initial burden of showing that the proposed
relocation of the child’s residence will cause detriment to the child, requiring a
reevaluation of the existing custody order.” (Id. at pp. 959-960.)
The central issue in this appeal is whether the trial court placed the initial
burden on Amanda to justify the move-away instead of placing the burden on Joseph to
show detriment. Before addressing that issue, it is necessary to address the changed
circumstance rule and its application to a move-away request. Amanda argues that before
the trial court could even consider detriment, Joseph was required to present evidence of
changed circumstances, and the proposed move to Michigan cannot in itself be the
changed circumstance satisfying his burden.
Amanda is correct that any proposed change in residence in the abstract and
in itself does not constitute changed circumstance warranting custody modification. In
LaMusga, supra, 32 Cal.4th at page 1096, the Supreme Court stated: “The mere fact that
22
the custodial parent proposes to change the residence of the child does not automatically
constitute ‘changed circumstances’ that require a reevaluation of an existing custody
order. A proposed change in the residence of a child can run the gamut from a move
across the street to a relocation to another continent. As we have noted, the noncustodial
parent has the burden of showing that the planned move will cause detriment to the child
in order for the court to reevaluate an existing custody order.” The LaMusga court then
stated a proposed change in residence might constitute the requisite changed
circumstances depending on the consequences of the change: “The likely consequences
of a proposed change in the residence of a child, when considered in the light of all the
relevant factors, may constitute a change of circumstances that warrants a change in
custody, and the detriment to the child’s relationship with the noncustodial parent that
will be caused by the proposed move, when considered in light of all the relevant factors,
may warrant denying a request to change the child’s residence or changing custody. The
extent to which a proposed move will detrimentally impact a child varies greatly
depending upon the circumstances.” (Id. at p. 1097.)
Changed circumstances and detriment from the proposed move are thus
part and parcel of the same question. A proposed change in residence of the minor child
constitutes a change in circumstances warranting a custody modification if the change,
when considered in light of the relevant factors, might detrimentally affect the minor
child. Put another way: change in residence + detriment to the minor child = changed
circumstances.
Here, there is no question the proposed move to Michigan would place
Mason at a substantial distance from Joseph’s residence in Orange County: The
proposed move was not just across the street, but across over half a continent (LaMusga,
supra, 32 Cal.4th at p. 1097). For Joseph to establish changed circumstances, and to
rebut Amanda’s presumptive right to move with Mason, Joseph had the initial burden of
showing the move would be detrimental to Mason. Once Joseph made that initial
23
showing of detriment, he had established a change in circumstances rebutting Amanda’s
presumptive right to move with Mason and requiring the trial court to reconsider the
existing custody order. (Id. at p. 1096.) Joseph was not required to present evidence of
some other changed circumstance.
III.
The Trial Court Did Find That Joseph Had Shown
Detriment and Shifted the Burden of Proof to Amanda.
The parties disagree whether the trial court shifted the burden of proof to
Amanda. At the outset of trial, the court stated: “After reading the CCI [Report], and
reading the moving and responding papers, [Joseph] has shown detriment by virtue of the
move. [¶] And, therefore, the burden is on [Amanda] to show the move is in the best
interests of the minor child. Not the best interests of [Amanda]. That’s not my issue.
It’s the best interests of the minor child.”
Joseph characterizes the trial court’s statements as offhand comments made
only to remind the parties that the relevant concern was the best interests of Mason, not
the best interests of Amanda. The trial court’s language does not lend itself to that
characterization. The trial court unambiguously stated that Joseph had met his initial
burden of showing detriment and the burden was on Amanda. Most tellingly, the court
had Amanda present her evidence first, before Joseph, an act consistent with shifting the
burden of proof to her.
IV.
The Trial Court Properly Considered the CCI Report,
Amanda’s Move-away Request, and Joseph’s Responsive
Declaration in Finding Detriment.
Did the trial court err by shifting the burden to Amanda, or, put another
way, did Joseph meet his burden of showing detriment? The trial court based its
determination of detriment on the CCI Report, Amanda’s move-away request, and
24
Joseph’s responding declaration. Amanda argues the trial court erred by considering
those materials. The CCI Report, Amanda argues, was inadmissible, while her
move-away request and Joseph’s responding declaration were never received in evidence.
A. The CCI Report
A report prepared by a child custody evaluator may be received in evidence
“on stipulation of all interested parties” and upon receipt “is competent evidence as to all
matters contained in the report.” (Fam. Code, § 3111, subd. (c).) In this case, there is no
stipulation allowing the CCI Report to be received in evidence. The attachment to the
order appointing the evaluator includes this advisement: “The report prepared by the
investigator as a result of the investigation will be received into evidence by the Court in
any hearing in this case, subject to cross-examination.” The attachment to the order is
not, however, a stipulation by all interested parties.
Both Amanda and Joseph take the position that the trial court received the
CCI Report in evidence, and the court minutes for September 9, 2014 reflect the CCI
Report was “received in evidence as Court’s Exhibit 1.” But the reporter’s transcript for
September 9 reflects only that the CCI Report was identified; no mention is made of the
CCI Report being received in evidence.
If the court did receive the CCI Report in evidence, Amanda forfeited any
objection by not posing an objection. Amanda argues she never had the chance to object
to the CCI Report. We disagree. When the trial court announced it had read the CCI
Report, Amanda could have objected to it. She did not do so. When the CCI Report was
identified as court exhibit 1, Amanda again could have objected. At no point in the
proceedings did Amanda object to the court’s consideration of the CCI Report or its
receipt in evidence, or move to strike the CCI Report. She therefore forfeited an
objection to the court’s consideration of the CCI Report. (Evid. Code, § 353, subd. (a);
Duronslet v. Kamps (2012) 203 Cal. App. 4th 717, 725-727.)
25
If the trial court erred by considering the CCI Report, the error was
harmless. The CCI Report was generally favorable to Amanda and recommended that
the trial court grant her move-away request. Joseph felt aggrieved by the CCI Report
because he believed it did not give adequate consideration to his relationship with Mason.
Moreover, nearly everything in the CCI Report came out in the trial testimony. One
thing that did not come out at trial was Mason’s statement to the child custody
investigator that “if there was one thing he could relay to the Court[,] it is that his parents
are really nice.”
B. Moving Papers and Joseph’s Responding Declaration
Amanda contends the trial court erred by considering her moving papers
and Joseph’s responding declaration because they were not received in evidence. We
conclude the trial court did not err by considering those materials.
When presented with a move-away request, the trial court must first decide
whether to hold an evidentiary hearing. (Brown & Yana, supra, 37 Cal.4th at pp. 960,
962.) To make that decision, the trial court must look to the parties’ moving and
responding papers. An evidentiary hearing in a move-away case is necessary only if one
parent has sole physical custody and the noncustodial parent has made the necessary
showing of detriment. (Id. at p. 962.) As explained in Brown & Yana, supra, 37 Cal.4th
at page 962: “[A]n evidentiary hearing in a move-away situation should be held only if
necessary. Where, as here, one parent has been awarded sole legal and sole physical
custody of a child, and the noncustodial parent opposes the custodial parent’s decision to
relocate with the child, a trial court may deny the noncustodial parent’s requests to
modify custody based on the relocation without holding an evidentiary hearing to take
oral evidence if the noncustodial parent’s allegation or showing of detriment to the child
is insubstantial in light of all the circumstances presented in the case, or is otherwise
legally insufficient to warrant relief. [¶] Needless to say, an evidentiary hearing serves
no legitimate purpose or function where the noncustodial parent is unable to make a
26
prima facie showing of detriment in the first instance, or has failed to identify a material
but contested factual issue that should be resolved through the taking of oral testimony.”
The upshot is the noncustodial parent’s showing of detriment need not, and
cannot, be made during the evidentiary hearing itself—the showing of detriment must be
made in the moving and responding papers and supporting documents. In Brown &
Yana, supra, 37 Cal.4th at page 963, the Supreme Court concluded the trial court did not
err by denying an evidentiary hearing on a move-away request because the noncustodial
parent’s order to show cause and supporting papers did not identify any detriment to the
1
minor child that might result from the proposed move.
V.
Joseph Was Required to Make a Prima Facie Showing of
Detriment to Rebut Amanda’s Presumptive Right to
Move with Mason.
Having concluded the trial court properly considered the CCI Report, the
moving and responding papers, and the supporting documents, we address whether they
supported the trial court’s decision to shift the burden of proof to Amanda. An issue is
the nature of the burden of proof or production necessary to rebut the presumptive right
to move. Joseph argues it is a prima facie showing. Amanda argues the term “prima
facie” is not found in statute or case law.
Joseph is correct. The noncustodial parent opposing a move-away request
has the burden “to make a prima facie showing of detriment in the first instance.”
1
Family Code section 217, which was enacted after Brown & Yana, requires that, on an
order to show cause or noticed motion, the family court “shall receive any live,
competent testimony that is relevant and within the scope of the hearing.” (Fam. Code,
§ 217, subd. (a).) In an appropriate case, the court may make a finding of good cause to
refuse live testimony. (Id., § 217, subd. (b).) Family Code section 217 does not alter the
conclusion that a noncustodial parent’s showing of detriment may, or must, be made in
the moving or responding papers and supporting declarations. If the noncustodial parent
fails to make the showing of detriment, then live, competent testimony would not be
relevant and within the scope of the hearing.
27
(Brown & Yana, supra, 37 Cal.4th at p. 962, italics added.) “The establishment of a
prima facie case means the presentation of such proof as will support a ruling or order in
favor of the moving party if no controverting evidence is presented.” (People v. Bell
(1989) 49 Cal. 3d 502, 554 (conc. opn. of Kaufman, J.).)
VI.
Joseph Made a Prima Facie Showing of Detriment
Sufficient to Rebut Amanda’s Presumptive
Right to Move with Mason.
In response to Amanda’s move-away request, Joseph filed a declaration
setting forth reasons why the move would be detrimental to Mason. Amanda filed
objections to the declaration. The trial court did not rule on the objections, so they are
deemed overruled. (Cal. Rules of Court, rule 5.111(c)(2).)
Amanda argues the objections should have been sustained and, in her
opening brief, repeats them verbatim. The objections are, for the most part, rote or
fatuous. For example, to Joseph’s statement that “Mason is not in a poor economic
situation, and would not be if he stayed,” Amanda poses the objections, “[a]sserts legal
conclusion” and “[l]acks foundation.” It is not necessary to address all of the objections
because passages in Joseph’s declaration to which Amanda did not object or to which she
waived her objections were sufficient to make a prima facie showing of detriment.
In paragraph 5 of his declaration, Joseph stated: “If Mason is allowed to
move, our relationship with him will be severely impacted, I will not be able to
participate in his day-to-day life, and will not be able to support him in school, or his
extracurricular activities. Both parents in Mason’s life are invaluable[,] and arbitrarily
moving because it’s easier financially is not in our son’s best interest. Mason’s paternal
grandparents also live here in Southern California. They have also had a substantial role
in his caretaking since birth. My family and I also have numerous relatives and friends in
Southern California, with whom Mason has already established a strong community, and
28
in which he participates in extracurricular activities. As far as I can recall, Mason has
only visited [Amanda]’s other relatives a few times for a limited amount of time in the
summer. [Amanda] also fails to mention how extremely important my relationship is
with Mason.” (Some capitalization omitted.) Amanda did not object to this passage.
In paragraph 7 of his declaration, Joseph stated: “While Mason will be
closer to his great-grandparents, who will still be two hours away in Michigan, he has a
very limited relationship with them, and because they are elderly, they have a very
limited capable impact in Mason’s life. While it would be great for Mason to see them
and spend time with them, my relationship and proximity to Mason [are] more
important.” (Some capitalization omitted.) Amanda did not object to this passage.
In paragraph 10 of his declaration, Joseph stated: “Mason has a large
school community that he is involved with; he plays three different sports here; he has his
doctors here; and all of his friends are here. I live here in Southern California, along with
his paternal family.” (Some capitalization omitted.) Amanda did not object to this
portion of paragraph 10.
In paragraph 14 of his declaration, Joseph stated: “If Mason moves, it will
catastrophically impact our relationship. Phone calls, video conferencing, and limited
summertime visits will not suffice.” (Some capitalization omitted.) Amanda did not
object to this portion of paragraph 14. In paragraph 15 of his declaration, Joseph stated:
“If Mason moves, I will have little ability to parent him, or to be there to aid in his mental
and emotional development and growth.” (Some capitalization omitted.) Amanda did
not object to this portion of paragraph 15.
In paragraph 11 of his declaration, Joseph stated: “In light of the abuse that
took place with [Amanda]’s ex-husband, I question her ability to make the right decisions
and maintain her parental responsibilities, given she so recently failed at protecting our
son from her abusive spouse.” Amanda objected to this passage; however, at trial, her
counsel questioned Joseph about it and asked him to explain what he meant. Joseph
29
testified (with no objection or motion to strike) that Amanda had failed to inform him that
she was the victim of abuse by Dash and that Mason was in an abusive home.
Amanda’s request for a move-away order also supported a determination of
a prima facie case of detriment. The memorandum of points and authorities in support of
the request acknowledged, “the geographic distance of the move-away will impact
[Mason]’s visitation with [Joseph]” and “the difficulties presented by the long-distance
move-away.” Those difficulties, Amanda asserted, would be “mitigated by [Mason]’s
frequent travel to California to visit [Joseph].”
We conclude Joseph made a prima facie showing that the proposed move to
Michigan would be detrimental to Mason. Joseph’s declaration showed that Joseph had a
good relationship with Mason, the move to Michigan would impair that relationship and
Joseph’s ability to play a parenting role in Mason’s life, Mason’s paternal grandparents
and other paternal relatives live in Southern California, Mason’s friends, school, and
church are in Southern California, and Mason participates in three sports in Southern
California. Amanda’s moving papers showed the proposed new residence in Michigan
was a significant distance from Southern California and the proposed visitation schedule
would have required Mason to fly back and forth between Michigan and Southern
California five times between August 13, 2014 and August 30, 2015.
In addition, the CCI Report confirmed that Mason has a close relationship
with Joseph, Amanda and Joseph have not communicated well regarding Mason,
Amanda does not consult Joseph before making decisions about Mason, Joseph’s parents
have a close relationship with Mason, Mr. Bolen tries to control the relationship between
Mason and Joseph, and, in the event of a move, Mr. Bolen should be less involved in
decision making for Mason and should allow Joseph and Amanda to make decisions for
him. The CCI Report quotes the text message from Mr. Bolen to Joseph.
30
VII.
The Trial Court Erred by Awarding Amanda and Joseph
Joint Physical Custody of Mason.
At the end of trial, after Amanda announced she would not be moving to
Michigan, the trial court addressed Joseph’s request for more parenting time. The court
awarded Joseph more time and, in doing so, also modified custody by awarding Joseph
and Amanda joint physical custody of Mason. Amanda argues the trial court erred by
modifying the physical custody order.
Parenting time (or visitation time) and custody are two distinct matters. A
showing of changed circumstances is not required before a court can modify parenting
time; a showing of changed circumstances is required to modify custody. (In re
Marriage of Lucio (2008) 161 Cal. App. 4th 1068, 1076-1077, 1079; Enrique M. v.
Angelina V. (2004) 121 Cal. App. 4th 1371, 1378-1380.)
In his request for order, Joseph asked for a modification of the Judgment to
grant him sole physical custody of Mason with approximately equal parenting time in the
event Amanda were allowed to move with Mason to Michigan. Joseph’s request for
order did not seek a change in custody in the event Amanda did not move to Michigan.
Joseph requested only a modification of the parenting schedule if Amanda chose to stay
in Southern California. His request for order stated: “In the alternative, if [Amanda]
elects to remain in Southern California, then I request that we equally share our time with
our son on a 2, 2, 5, 5 schedule, such that [Amanda] would have our son on Mondays and
Tuesday; I would have him on Wednesday and Thursdays; and we would alternate the
weekends from Friday to Monday.” During trial, Joseph’s counsel did not argue for a
change in custody if Amanda chose to stay in Southern California.
Joseph was required to give proper notice of a request to modify physical
custody in the event Amanda chose to stay in Southern California. (Fam. Code, § 215,
subd. (a).) Because Joseph had not requested joint physical custody if Amanda chose to
31
stay in Southern California, and did not give notice of any such request, the trial court
erred by granting that relief. (See In re Marriage of Gruen (2011) 191 Cal. App. 4th 627,
640 [modifications to support order exceeded family court’s jurisdiction because “they
were not based on any pending motion or OSC [(order to show cause)] for
modification”]; In re Marriage of Seagondollar (2006) 139 Cal. App. 4th 1116, 1128-1130
[affirmative relief not requested in response to order to show cause].)
DISPOSITION
That portion of the order awarding Amanda and Joseph joint physical
custody of Mason is reversed. In all other respects, the order is affirmed. Each party to
bear his or her own costs on appeal.
FYBEL, J.
WE CONCUR:
MOORE, ACTING P. J.
ARONSON, J.
32