CORNELL, Acting P.J.
John Dickey (father) and Sarah E. Jackson (mother) agreed that father would have primary physical custody of their children, B. and P., after the two divorced. Four years later, mother moved to change the custody of the children. Father opposed the request. The family court found there were changed circumstances that justified removing the children from father's custody and awarding custody to mother. We conclude the family court abused its discretion because there was insufficient evidence to support the change in custody. Accordingly, we reverse the family court's order.
Mother and father were married in 2002. They separated in October 2006. P. was born to the couple in 2003. B. is mother's son from a previous marriage; father adopted B. during the marriage.
On April 6, 2007, a judgment of dissolution was entered terminating the marriage and incorporating a marital settlement agreement (MSA) signed by mother and father. In the MSA, mother and father agreed they would share joint legal and physical custody of the children and designated father as the primary caregiver for the children. In addition, visitation rights were established based in part on the distance between the residences of the two parties. Holidays and birthdays for the children were divided between the parties. In addition, the MSA required the parties to keep the other informed of all of the children's health care appointments and to inform the other parent of any emergency involving the children or any illness requiring medical attention. Finally, the MSA declared it was intended to be a binding and final settlement of all rights and obligations between the parties.
On May 13, 2010, mother filed an order to show cause seeking modification of the child custody, visitation, and child support issues. Mother asked to be named the primary caregiver for the children and sought child support from father. In her supporting declaration, mother claimed that when the MSA was signed, her career with the California Highway Patrol (CHP) was about to begin. In addition, father was going to return to medical school outside of the country. Since mother would be required to spend six months at the CHP academy, the two agreed that father would be the primary caregiver for the children but, upon his graduation from medical school, mother would resume her status as the primary caregiver to the children. When father returned to California after finishing medical school, he refused to comply with the oral agreement.
Mother claimed she needed to establish only that the best interests of the children required her to have custody because there was not a final judicial determination of custody. Accordingly, she asserted the following factors established that it was in the children's best interests to be placed with her:
Father filed a declaration in response to mother's order to show cause. He declared that once he returned to California, he followed the MSA "explicitly" regarding visitation. He denied agreeing to allow the children to live with mother once he returned to California. He permitted mother to have free communication with the children. He denied prohibiting the children access to extracurricular activities and explained the activities in which each child had participated. He asserted that the children's medical needs were met, including treatment of P.'s skin condition, which was inherited from father. Regarding missing school, father stated that in prior years the children missed little school, but did miss more this year because of unusual circumstances. He claimed, however, that each time they missed school, he coordinated the absences with the children's teachers and made sure all assignments were completed. Specifically, the children completed all homework assignments before they left school for the wedding activities.
Prior to commencement of the evidentiary hearing on mother's order to show cause, the family court announced that it had determined there was a final order of custody as required by case law, requiring mother to establish a substantial change of circumstance before custody could be removed from father. The family court also stated that it believed the pleadings had established a prima facie case that a change of circumstance had occurred.
The following testimony was heard by the family court on the issues raised by mother.
The family court heard first from Jim R. Canaday, the attorney appointed by the family court to represent the children. Canaday testified that each parent stated he or she wanted what was best for the children. He acknowledged that the children expressed a desire to live with mother but, since there had not been any significant changes in father's circumstances, he felt father should remain the primary caregiver to the children. Canaday concluded that father had provided a good home for the children, had not done anything that would be detrimental to the children, and his home remained the appropriate placement for the children.
Mother testified that she lived in the Santa Cruz area. One of the primary reasons she requested a change in custody was B.'s desire to live with her. B. had been making this request for over two years. At one point B. had stated that he felt as if he were being held hostage and had been kidnapped. On another occasion (summer 2008) when B. was dropped off by father, B. had "hand and fingernail marks on his face." Mother could not explain how B. had been hurt.
When mother suggested that B. obtain counseling, father initially agreed, but mother and father could never agree on a counselor. Mother wanted to use only a counselor that was included in her health insurance benefit; father wanted to use someone through his church. Mother would not agree to that because she felt the counselor would be biased. To mother's knowledge, B. had not received any counseling. Mother admitted that she rejected all of the counselors that father proposed.
On one occasion, father agreed that the children could live with mother for the approaching school year. Father later denied making that statement.
Mother believed that B. would have better scholastic opportunities if he lived with her. She also would provide him with the opportunity to participate in organized sports, an opportunity that he does not have with father.
P., after visiting with mother, would act as if she did not want to go home with father when he came to pick her up. On several occasions mother had to force P. to get into father's vehicle for the trip to father's house.
There were constant disputes regarding medical treatment for the children. Initially, father did not want to utilize mother's work benefits to care for the children. Eventually, the family court ordered him to do so in another proceeding.
P. developed a skin condition, ichthyosis vulgaris. A dermatologist recommended a daily bath, use of a specific type of soap, and application of a specific lotion to treat the condition. Mother noticed that the condition worsened when P. was in father's care and improved when she took care of P.
P. also needed a speech therapist. Mother came to this conclusion when she discovered a letter in P.'s school records so stating. The letter was sent to father but mother never received it. P.'s school did not offer speech therapy, but mother proposed to enroll P. in a school that did offer such services.
Mother also objected when father decided to take the children out of school for three weeks to participate in father's wedding. Father told mother that he had arranged to have the children complete their school work ahead of time. Mother and father finally agreed to allow mother to keep the kids in Bakersfield for one of the weeks so they could attend school that week.
Mother admitted both children are good students. The main reason mother filed the motion was because of B.'s stated desire to live with her. Mother admitted that father has done a good job raising his children. The children have not exhibited any behavioral problems, to mother's knowledge.
Mother expressed frustration with the communication between herself and father. She claimed he did not answer her phone calls. She complained because father had B. call mother and inform her that he (B.) was in the hospital. She also complained that father did not inform her when the children were sick or when he took them to the doctor.
When mother and father signed the MSA, father was living in Sonora, California. The agreement was intended to be permanent. Both parties knew at the time father would be returning to medical school out of the country. Father also anticipated that he would have to go to Bakersfield to finish his residency. The MSA was written to accommodate both mother's and father's need to move for their careers. Father planned on remaining in Bakersfield for the next three to four years, at least.
Father acknowledged that mother told him on one occasion that she wanted the kids to come live with her. Father told mother that he would think about it. Father spoke with B. about whether he wanted to live with his mother. B. stated he wanted to live with her. Father told B. that when he was old enough to make a good decision, the issue would be revisited. Father indicated that perhaps the issue would be revisited for the 2010-2011 school year if B. obtained some counseling. P., on the other hand, had not stated to father that she wanted to live with mother.
The issue of counseling for B. was brought up by mother in 2008. However, a counselor would not treat a child unless both parents agreed. Father made some recommendations to mother about potential counselors who were not affiliated with his church after obtaining recommendations from other parents about potential counselors. Father did not agree with the counselors suggested by mother, which would have been covered by her insurance, because they did not specialize in treating children. Mother and father never reached an agreement on which counselor should treat B., even though father agreed to pay for the counseling.
Father completed his medical education and had to begin a residency program to obtain his license to practice medicine. He hoped to be accepted into a residency program in Bakersfield. The residency program would require father to work at the hospital between 60 and 80 hours per week. Father anticipated caring for the children with the help of his wife. Father stated he might relocate to Tuolumne County at the end of the residency program (in three or four years).
Father took the children to see a physician when they were sick. Mother took P. to a dermatologist for a skin condition. Father agreed with the dermatologist's diagnosis, but believed it was a mild case. The dermatologist recommended that P. take a 10-minute bath every day. Father also learned that P. could take a shower, pat down the skin, and apply lotion, so he followed that course of treatment. The children saw a dentist in Santa Cruz because mother insisted they receive their dental care near her home. As a result, mother would take the children to all of their dental appointments.
When B. was at the hospital, he asked to call his mother. Father allowed him to make the call, but father also talked to mother. B. was not admitted to a hospital; he went to the emergency room to obtain intravenous fluids because he was dehydrated as a result of a severe case of diarrhea. He spent only a few hours at the hospital.
Father agreed that the children were both good students. He admitted that on maybe two or three occasions in the past school year, P.'s homework had been marked down because he failed to sign it before it was turned in. When father was working as a tutor, the children would accompany him to the library. At that time, B. would oversee P.'s homework, but father would check it afterwards.
Father acknowledged that P. did have some difficulty pronouncing the letter "S" and acknowledged receiving the letter from the school to which mother referred. He did not take P. to a speech therapist. Instead, he read to her nightly and had her read to him to work on the problem.
Father admitted that P. had not participated in dance classes for about 18 months. Father bought B. a drum set and lessons, but the lessons stopped when the teacher was no longer available. B. also enjoyed playing flag football and had played every year since the family moved to Bakersfield. When B. expressed a desire to play tackle football, father signed him up in a league to do so.
When father planned his wedding and honeymoon, father understood the children would miss two weeks of school. The children missed school the week before the wedding to help prepare for it. Father and his wife went to Mexico for their honeymoon while the children stayed with mother. Father arranged to have the children's paternal grandmother pick them up from mother and bring them to Bakersfield so they could attend school while father and his new wife were on their honeymoon. After father and his new wife returned from Mexico, father was going to take the kids to Florida for a week for an East Coast reception since his new wife is from Florida. Father explained his plans to mother through e-mails. He also told mother that the children would have all of their homework done before they missed any school.
Father seldom talked on the phone with mother because each conversation would devolve into an argument, during which mother would swear at father and then hang up. Father's lawyer suggested that the best way to communicate would be through texts and e-mails.
Father tried to keep mother informed about the children's medical appointments, either before or after they occurred. He also told mother about some of the children's activities, while the children kept mother informed about other activities.
After hearing abbreviated arguments from counsel, the family court ruled from the bench that there was a substantial change in circumstances. To support this conclusion, the family court found that father had not notified mother of important activities. The family court observed that father did not "appreciate the weight" of his failure, but instead demonstrated a "lack of regard for the mother's right to share in the parenting" of the children.
A statement of decision was filed that listed the following grounds for finding a substantial change of circumstances:
The only issue in this case is whether the family court erred in removing the children from father and giving primary physical custody of them to mother. The family court concluded the prior order granting father primary physical custody of the children was a final judicial custody order.
The primary concern when initially determining who shall have custody of the child is the best interest of the child. (Fam. Code, § 3040, subd. (b).) Accordingly, when the issue of custody initially is presented to the family court, it has the widest discretion to determine what plan is in the best interest of the child after considering all of the relevant circumstances. (Montenegro, supra, 26 Cal.4th at p. 255; In re Marriage of Burgess (1996) 13 Cal.4th 25, 31-32 (Burgess).)
When a parent challenges an order previously issued by the family court that was intended to be a final determination of custody, however, the family court no longer may look simply to the best interest of the child. Instead, the Supreme Court has established "a variation" on the best interest rule, which is commonly referred to as the changed circumstance rule. (Montenegro, supra, 26 Cal.4th at p. 256.)
Under this rule, "the noncustodial parent seeking to alter the order for legal and physical custody can do so only on a showing that there has been a substantial change of circumstances so affecting the minor child that modification is essential to the child's welfare. [Citation.]" (Burgess, supra, 13 Cal.4th at p. 37.) "The changed-circumstance rule is not a different test, devised to supplant the statutory test, but an adjunct to the best-interest test. It provides, in essence, that once it has been established that a particular custodial arrangement is in the best interests of the child, the court need not reexamine that question. Instead, it should preserve the established mode of custody unless some significant change in circumstances indicates that a different arrangement would be in the child's best interest." (Burchard v. Garay (1986) 42 Cal.3d 531, 535 (Burchard).)
The policy behind the changed circumstance rule has been emphasized by the courts repeatedly: "`It is well established that the courts are reluctant to order a change of custody and will not do so except for imperative reasons; that it is desirable that there be an end of litigation and undesirable to change the child's established mode of living.' [Citation.]" (In re Marriage of Carney (1979) 24 Cal.3d 725, 730-731; see also In re Marriage of LaMusga (2004) 32 Cal.4th 1072, 1088 (LaMusga); Burchard, supra, 42 Cal.3d at p. 535.) Indeed, "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, cited with approval in In re Marriage of Brown & Yana (2006) 37 Cal.4th 947, 956 (Brown & Yana); LaMusga, at p. 1093.)
Because of the importance placed on the child's interest in stable custodial and emotional ties, the burden of persuasion is placed on the noncustodial parent seeking to change the prior custody order. (Burgess, supra, 13 Cal.4th at p. 37.) Moreover, the noncustodial parent must make a substantial showing before the family court may change the custody of the child. (Id. at p. 38.) "[A] child should not be removed from prior custody of one parent and given to the other `"unless the material facts and circumstances occurring subsequently are of a kind to render it essential or expedient for the welfare of the child that there be a change [in custody]."' [Citation.]" (Ibid.)
Having these principles in mind, we turn to the facts of this case. We begin with the moving papers filed by mother because, unless mother pleads facts indicating that there has been a substantial change in circumstances so affecting the minor that a change in custody is required, the family court need not hold an evidentiary hearing. (Brown & Yana, supra, 37 Cal.4th at p. 965.)
As outlined above, mother listed seven facts supporting her claim for custody of the children. First, mother claimed B. suffered stress and confusion as a result of not being able to live with mother. This is a natural result of a divorce and not a changed circumstance.
Second, mother and father could not agree on a suitable counselor for B. As explained below, mother bore as much responsibility for this failure as father, and there was no indication that if mother had been given custody the situation would be different. This fact is not a changed circumstance within the meaning of the above cited cases.
Third, mother claimed that father refused to enroll the children in any extracurricular activities. Mother did not provide any basis for this claim and, as it turns out, it was indeed false. Nevertheless, this is not a substantial change in circumstances sufficient to justify a change in custody.
Fourth, mother claimed that father informed B. he could live with mother but then refused to permit the move. Father, of course, denied any such representation. This factor discloses nothing more than a difference in memory of a conversation, probably fueled by mother's and father's antagonism towards each other. It does not show a changed circumstance within the meaning of the cited cases.
Fifth, mother asserted that P. voiced a preference to live with mother and claimed P. suffered distress when father picked her up. This is an unfortunate consequence of divorce and is not a ground for changing custody. If it were, every time a child became upset with one parent and voiced preference to live with another parent, the parties would be back in court seeking to change custody. This allegation is exactly the type that a family court should reject as insufficient to establish a substantial change in circumstance affecting the child.
Sixth, mother claimed that father failed to follow the recommendations of P.'s dermatologist. This should not have been considered by the family court because there was no indication that P. suffered any detriment, and there was no competent evidence from a qualified physician to establish what the condition was, how it should be treated, and how father's care was deficient.
Lastly, mother claimed that father allowed the children to miss school for a death in the family and to attend his wedding and honeymoon. These occurrences did not show a change in circumstance that adversely affected the children. They were unusual occurrences and there was no evidence that the absences had any effect on the children's school performance.
Based on this deficient showing, the family court would have been justified in denying the motion without holding an evidentiary hearing, thus conserving judicial resources and avoiding expense to the parties. (Brown & Yana, supra, 37 Cal.4th at p. 965.) The family court, however, proceeded to an evidentiary hearing on the matter. The evidence presented at that hearing is summarized above. We now turn to the family court's ruling as reflected in its statement of decision.
The statement of decision began by finding that since the judgment had been entered, father had completed medical school, returned to Sonora, and moved to Bakersfield; mother had finished her training with the CHP and moved to the Santa Cruz area. There was no evidence that these events affected the children in any manner. Indeed, it appears that when mother and father signed the MSA, the parties anticipated that each of these events would occur. These facts, therefore, did not establish a substantial change in circumstance. Accordingly, there was no support for removing the children from father's custody because of these events.
Next, the family court found that P. developed a skin condition and father did not treat it in the method prescribed by the dermatologist. There was no competent evidence that P. had a skin condition that required treatment. While mother and father agreed such a condition existed, no medical professional testified to the treatment required, or any acceptable optional treatments. Instead, the family court relied on mother's statements, which were not only inadmissible hearsay but were improper opinions.
The family court also found that father did not advise mother that P.'s school had recommended she receive speech therapy. The supporting evidence came from mother's testimony. There was nothing in the record to indicate that mother was qualified to determine if P. required speech therapy. Nor was there any evidence in the record that the school recommended that P. receive speech therapy. Indeed, the evidence in the record established that the school did not recommend P. receive speech therapy.
A letter from P.'s school was introduced into evidence. The letter stated, "It has come to our attention that your student may be a candidate for speech screening and recommendation." It went on to provide a list of resources and concludes, "If your student has not acquired the sounds, you may choose to seek the advice of your pediatrician and/or utilize one of the following speech resources for screening and recommendation." At most, this letter was an advisement of a potential problem, not a recommendation that P. receive speech therapy. Moreover, there is no evidence in the record to indicate that anyone from the school was qualified to determine if a student needed speech therapy. Since P. was described as a very good student, whatever the school was referring to was not significant enough to affect her school performance.
The family court also found that the parties could not agree on a counselor for B., which was correct. But the record reveals that each party bore equal responsibility for the lack of counseling. Mother insisted that father utilize only someone who accepted her insurance and refused to consider any of the counselors suggested by father. Father did not fully investigate the counselors suggested by mother to determine if one of them would be a good candidate to treat B., instead insisting that B. see a counselor acceptable to him. While the conduct of both mother and father exemplifies stubbornness and intransigency, there was no evidence that B. suffered as a result of the conflict, no evidence the conflict would be resolved if custody was given to mother, and no evidence of a changed circumstance.
The family court also noted that father and mother had both married other individuals. There was no evidence in the record, however, that either marriage affected the children in any manner. The test mother was required to meet was a substantial change in circumstance affecting the children, not merely a change in circumstance. If a subsequent marriage was sufficient alone to be considered a substantial change in circumstance justifying a change in custody, then the courts would be overwhelmed by motions to change custody. This factor does not meet the requirements of this test because there was no evidence that the children were negatively affected by their parents' remarriage.
Next, the family court found that father failed to advise mother of medical appointments and emergency medical treatment for B. This finding is unsupported by the record. Father testified, and mother did not dispute, that B. called her while he was in the emergency room because he wanted to. Father then spoke with mother and discussed the situation with her. Nothing in the MSA suggested that father must initiate each phone call regarding the children's medical treatment. While mother did complain that father did not keep her fully informed about medical issues with the children, the only example she provided was the above described emergency room treatment. This single example provides no grounds for finding a substantial change in circumstances.
The family court also found that father refused to allow mother to spend a 21-day period with the children during the summer of 2008 as required by the MSA. Once again, the record does not support this finding. Mother testified that the reason she filed an action in May 2008 in an attempt to change custody was because father would not allow her to spend her time with the children immediately before she filed the action.
Finally, the family court found that father failed to keep mother fully informed of the children's extracurricular and sports activities. The record establishes that mother was fully informed of the children's activities. When asked how she came to believe the children were not participating in extracurricular activities, mother testified, "Because I come and pick [B.] up from school every other Friday and I know. I talk to him every day. I know what he does and doesn't participate in." She went on to testify that her complaint was that father had never given her a schedule of the children's activities.
In this same category the family court found that father did not allow the children to participate in activities, and P. received a "3" on her report card because of father's failure to sign her homework.
These assertions do not support the family court's order for a variety of reasons. First, there was no testimony from the children that father refused to allow them to participate in any activity in which they wanted to participate. Second, father testified that he forgot to sign P.'s homework on only a few occasions. Third, there was no testimony that the "3" received by P. was attributable to father's failure to sign her homework. Fourth, there was no evidence to establish the significance of the "3" received by P., if any. Finally, the undisputed testimony was that both P. and B. were doing well in school.
Mother was required to establish "a substantial change of circumstances so affecting the minor child that modification is essential to the child's welfare. [Citation.]" (Burgess, supra, 13 Cal.4th at p. 37.) As we have explained, the factors presented by mother, and relied on by the family court, were neither a substantial change of circumstance or evidence that the children were affected by the changes. Thus, there was no evidence that would overcome "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 — [which] weigh heavily in favor of maintaining ongoing custody arrangements. [Citations.]" (Burgess, at pp. 32-33, cited with approval in Brown & Yana, supra, 37 Cal.4th at p. 956; LaMusga, supra, 32 Cal.4th at p. 1093.) The family court's contrary finding was not supported by substantial evidence and thus constituted an abuse of discretion. (In re Marriage of Kern (1978) 87 Cal.App.3d 402, 410-411.)
The family court's order awarding custody of the children to mother is reversed. Costs are awarded to father. The petition for writ of mandate, which raises the same issues as this appeal, is denied as moot.
WE CONCUR.
DETJEN, J.
FRANSON, J.
The family court also noted that father described B. as a "bad kid" when B. was younger and took exception to that comment. "I am not going to leave this child in the home of somebody who says, `He was a bad kid.' Children are not bad children. And when you do your rotation, [father], in the children's area, you will see we don't say children are bad children. Children may have bad behaviors, they may have issues, but they are not bad children." While father may have chosen his words poorly, this choice did not support removal of the children from his custody.
