Opinion
A131780
12-29-2011
NIA BROWN, Plaintiff and Respondent, v. KAREEM OLATEJU, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Alameda County Super. Ct. No. RF07341466
Appellant Kareem Olateju appeals from an order denying his request to modify the custody schedule concerning his son Omolade. He contends the trial court applied an incorrect standard when evaluating his request. We agree and will reverse the order in question.
I. FACTUAL AND PROCEDURAL BACKGROUND
It is not possible to set forth the underlying facts in detail because appellant has only provided a partial record on appeal. As best as we can tell, appellant and respondent Nia Brown were involved in some sort of a relationship. In May 2007, respondent gave birth to a son, Omolade. In November 2007, respondent was granted sole physical custody of Omolade and appellant was granted substantial visitation rights. In the years that followed, appellant was granted increasing levels of responsibility. By December 2010, appellant had been granted physical custody of Omolade about one third of the time.
In December 2010, appellant filed motion asking that the custody order then in effect be modified so that he and respondent would share custody of Omolade equally.
Respondent opposed the motion arguing there had not been a substantial change in circumstances that would warrant a change in the pending order.
The trial court conducted a hearing on appellant's motion and denied it ruling "there has been no significant change of circumstance to warrant a change in the current parenting plan."
II. DISCUSSION
Appellant contends the custody order must be reversed because the trial court applied an incorrect standard when evaluating his request.
Trial courts are granted broad discretion to determine what custody arrangement is appropriate. (In re Marriage of LaMusga (2004) 32 Cal.4th 1072, 1087.) A court making that determination must apply what is known as the "'best interest'" standard, i.e., the court must make its decision based on what is in the best interests of the minor child. (Fam. Code, §§ 3011, 3020, 3040, 3087; In re Marriage of LaMusga, supra, 32 Cal.4th at p. 1087.)
An additional rule applies when a parent seeks to modify a pending order by removing custody from one parent and giving it to the other. Under those circumstances, a court must apply what is known as the changed circumstance rule. (Enrique M. v. Angelina V. (2004) 121 Cal.App.4th 1371, 1379.) "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. The rule thus fosters the dual goals of judicial economy and protecting stable custody arrangements." (Burchard v. Garay (1986) 42 Cal.3d 531, 535.)
But the changed circumstance rule applies narrowly. It comes into play only when a party seeks to modify a pending order in a fundamental way by removing custody from one parent and giving it to the other. (Enrique M. v. Angelina V., supra, 121 Cal.App.4th at pp. 1379-1382.) If a party simply seeks to modify a pending order by changing the allocation of parenting time, the usual best interest test applies. (Ibid; In re Marriage of Lucio (2008) 161 Cal.App.4th 1068, 1077-1081, and cases cited therein; see also Hogoboom & King, Cal. Practice Guide: Family Law (The Rutter Group 2011) ¶¶ 7:322.12, 17:302.)
Here, appellant alleged and the opposition respondent submitted plainly indicate appellant and respondent were sharing custody when appellant filed his motion. The record also indicates appellant merely asked that the parenting schedule be modified so that he and respondent would share custody of Omolade equally. Yet the trial court applied the changed circumstance rule denying appellant's request because there had been "no significant change of circumstance to warrant a change in the current parenting plan."
According to respondent's opposition, the order then in effect stated as follows: "Omolade will be with Mr. Olateju every other week from pick-up at preschool on Friday morning until return to school on Monday by 9 am; the alternate week from pick-up, Thursday evening until return to preschool on Friday afternoon."
We conclude the court erred when it evaluated appellant's request under a standard that did not apply. We will reverse and remand for reconsideration.
While we reverse the court's order, we state no opinion on how the court should rule when it reevaluate's appellant's request.
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III. DISPOSITION
The custody order is reversed and the matter is remanded to the trial court for further proceedings that are consistent with this opinion.
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Jones, P.J.
We concur:
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Needham, J.
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Bruiniers, J.