Opinion
D048382
5-1-2007
ELIZABETH B., Plaintiff and Appellant, v. COREY G., Defendant and Respondent; DEPARTMENT OF CHILD SUPPORT SERVICES, Intervenor and Respondent.
NOT TO BE PUBLISHED
In this change of custody case substantial evidence in the record supports the trial courts decision to change the custody of the minor child from his mother to his father, who lives in Pennsylvania. In particular, the evidence shows that in his mothers care the boy did not appear to be developing emotionally and that he presented an unusually flat affect and glum demeanor. A psychologist who examined the child, his mother and his father believes these conditions are a serious concern and attributable to the childs unusually close attachment to his mother.
In light of this record the trial court did not err in changing custody to the childs father and providing for reasonable visitation for the childs mother. Having changed custody, the trial court was also warranted in permitting the father to take the child to the fathers new home in Pennsylvania.
FACTUAL AND PROCEDURAL BACKGROUND
In late 1995 appellant Elizabeth B. and respondent Corey G. had a brief romantic relationship. After the relationship ended, they had no contact with each other for a number of years.
In September 1996 Elizabeth gave birth to a son, Joshua B. According to Corey, he was unaware that Elizabeth had become pregnant and had delivered a son until, in 2002, he was served with a paternity petition filed by the Department of Child Support Services. DNA tests confirmed that Corey was Joshuas father and Corey began paying child support to Elizabeth. Corey also began regular visitation with Joshua. In October 2002 Elizabeth and Corey agreed to a custody arrangement under which Joshua spent 78 percent of the week with Elizabeth and 22 percent of the week with Corey.
In May 2004 Corey filed an order to show cause (OSC) with respect to custody, visitation, appointment of an attorney for Joshua and a psychological evaluation. His order was supported by a declaration in which he reported, among other matters, that Joshua seemed very withdrawn and that Elizabeth refused to let Corey take Joshua to a counselor. In his declaration, Corey stated: "Sometimes I pick [Joshua] up on Wednesdays and he wears the same clothes he did on Friday. His appearance and hygiene are not normal. I am the only one who takes him to get his hair cut and who sees his nails are cut." In response to the OSC, the trial court appointed counsel for Joshua and ordered that a psychological evaluation be performed by Yanon Volcani, Ph.D. In addition the parties stipulated that Joshua commence individual therapy.
Trial on the OSC occurred on November 17, 2005. Prior to trial, Dr. Yanon Volcani filed a report in which he stated that Joshua was" not thriving under the current parenting plan." Dr. Volcani found that Joshua "was unusually flat in affect. Indeed, there was something of a glumness in Joshuas demeanor, and a certain cautiousness in his manner of responding." Joshuas individual therapist reported to Dr. Volcani that Joshua was "the most guarded kid Ive seen in thirty years." On one test Dr. Volcani performed on Joshua , Joshuas response was highly unusual and suggested that Joshuas attachment to his mother "may have some over-determined elements." Dr. Volcani stated that "given their history and personality types, the current data suggests that, along with a deep bond with his mother that in many ways supports him, there may be elements within their closeness that could possibly interfere with the burgeoning of Joshuas development into a young man."
Dr. Volcani found that Elizabeth was very disorganized, missed an unusual number of appointments with him, and took no responsibility for the inconvenience her behavior caused. Dr. Volcani stated: "In over twenty-five years of performing evaluations, I have never had someone be so inconsistent in appearing for appointments. Given the purpose of the assessment, Ms. [B.s] behavior . . . would seem somewhat akin to taking ones drivers license test by steering with ones feet. Clearly, the difficulty appears to be beyond simply a matter of time management." This behavior was consistent with a personality profile which found: "At times [Elizabeth] is likely to have a dissociative lack of self-awareness of what she is doing and of the consequences of her actions." Dr. Volcani believed that "at times bewildered by the reactions of others, and quick to feel victimized by their responses, Ms. [B.] would seem to reflexively externalize the blame for the circumstances she finds herself in. It would appear . . . extremely difficult for her to admit to any possible liabilities."
In contrast to Elizabeth, "[Corey] presented throughout the assessment process in an affable, informal manner. Extremely cooperative throughout the assessment process, he was prompt for all his appointments, and quick to complete the inventories in my waiting room." The assessments Dr. Volcani performed portrayed Corey as a "well-functioning, resilient individual, who appears to manage the exigencies of daily life in an effective fashion." The results of one personality assessment showed that "[h]is very good ego strength score would suggest many areas of practical self-sufficiency and organized functioning."
In light of all his findings, Dr. Volcani recommended Joshuas primary residence be with Corey. However, because, by the time of trial, Coreys employment had required that he move to Pittsburgh, Dr. Volcani expressed concern about disrupting Joshuas school year. At trial Dr. Volcani reiterated his findings and explained that if Corey still lived in San Diego he would recommend an immediate change of primary physical `custody. Dr. Volcani stated: "Im worried for this boy. . . . He does not seem to be doing very well. . . . [¶] The next couple of years are really important. Hes got to bond . . . and show some joy in life."
Following the hearing on November 17, 2005, the trial court deferred any ruling on Coreys motion until after the Christmas holiday period, which was upcoming. Joshua was scheduled to spend his Thanksgiving and Christmas breaks with Corey in Pittsburgh and the trial court wanted to see how Joshua adjusted to being in Pittsburgh before ruling. Minors counsel agreed to travel to Pittsburgh over the Christmas break and report on how things were going.
The trial court conducted additional hearings on January 3, 2006, January 10, 2006, January 12, 2006, and January 24, 2006. At those hearings minors counsel reported that Joshua was doing very well in Pittsburgh. On January 30, 2006, the trial court issued a statement of decision in which it determined that it was in Joshuas best interest to give Corey primary physical custody and that Elizabeth had not shown that it would be unduly detrimental to have Joshua move to Pittsburgh with Corey. In changing custody, the court relied on Dr. Volcanis opinion that Joshua was not thriving in Elizabeths care. In permitting Corey to take Joshua to Pittsburgh, the court found that Elizabeth bore the burden of showing that the move would be detrimental to Joshua.
Elizabeth filed a timely notice of appeal.
DISCUSSION
I
"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. We are required to uphold the ruling if it is correct on any basis, regardless of whether such basis was actually invoked." (In re Marriage of Burgess (1996) 13 Cal.4th 25, 32, italics added (Burgess ).)
II
In her principal argument on appeal, Elizabeth argues the trial court erred in engaging a two-step process in which it first decided to change Joshuas custody and then required Elizabeth show that permitting Joshua to move to Pittsburgh would be detrimental to his well-being. We find no error.
Where a custodial parent wishes to move away, the non-custodial parent bears the relatively heavy burden of showing that the move away would be so detrimental to the well-being of the child that a change in custody is warranted. (Burgess, supra, 13 Cal.4th at p. 38; In re Marriage of LaMusga (2004) 32 Cal.4th 1072, 1096 (LaMusga).) "Ordinarily, after a judicial custody determination, 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 childs welfare. [Citation.] As we have explained: The [changed circumstance] rule requires that one identify a prior custody decision based upon circumstances then existing which rendered that decision in the best interest of the child. The court can then inquire whether alleged new circumstances represent a significant change from preexisting circumstances, requiring reevaluation of the childs custody. [Citation.]
"We conclude that the same allocation of the burden of persuasion applies in the case of a custodial parents relocation as in any other proceeding to alter existing custody arrangements: [ I]n view of the childs interest in stable custodial and emotional ties, custody lawfully acquired and maintained for a significant period will have the effect of compelling the noncustodial parent to assume the burden of persuading the trier of fact that a change [in custody] is in the childs best interests. [Citation.]
"Similarly, the same standard of proof applies in a motion for change in custody based on the custodial parents decision to relocate with the minor children as in any other matter involving changed circumstances: [O]nce it has been established [under a judicial custody decision] 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 childs best interest. [Citation.]" (Burgess, supra, 13 Cal.4th at pp. 37-38, fn. omitted.)
Although in Burgess the court was dealing with a custodial parents desire to move a child to another part of the country and here we are confronted with a noncustodial parents desire to move, the court in Burgess plainly authorized the procedure employed by the trial court in this case. Under Burgess the courts primary consideration is whether any change in custody is warranted; once the court has determined what custody arrangement is in the best interest of the child, the custodial parent must be permitted to take the child to his or her new location unless that fact itself will cause undue detriment to the child. (Burgess, supra, 13 Cal.4th at p. 38; LaMusga, supra, 32 Cal.4th at p. 1097.) "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 childs 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 childs residence or changing custody. The extent to which a proposed move will detrimentally impact a child varies greatly depending upon the circumstances. We will generally leave it to the superior court to assess that impact in light of the other relevant factors in determining what is in the best interests of the child." (LaMusga, supra, 32 Cal.4th at p. 1097.)
Here, the trial court first determined whether a change in custody was warranted. In doing so, it clearly and properly placed the burden on Corey. As the noncustodial parent, Corey bore the burden of showing that circumstances had changed since the time of the then existing custody order. Having found that Corey met that heavy burden, the court then considered whether Coreys Pittsburgh residence was itself a detriment which required that custody be returned to Elizabeth. As required under Burgess and LaMusga in making this second determination the court properly placed the burden on Elizabeth.
The fact that the first and second findings were made simultaneously did not infringe upon Elizabeths substantial rights. As the court in Burgess and LaMusga made clear, existing custody orders cannot be changed absent a significant showing on the part of the noncustodial parent. Here, the trial court acted in accordance with those requirements: when the existing order provided custody to Elizabeth, the trial court placed the burden on Corey; when custody was given to Corey, Elizabeth bore the burden.
Although Elizabeth argues she was surprised by the fact the trial court imposed on her the burden of showing that the move to Pittsburgh would be detrimental to Joshua, in light of the fact that the parties cited Burgess and LaMusga to the trial court and vigorously contested the impact a move would have on Joshua, we reject her contention. Elizabeth had ample notice of the applicable principles of law and in fact attempted to meet her burden.
III
Next, Elizabeth raises a series of arguments challenging the merits of the trial courts order giving Corey primary physical custody.
The showing required to obtain an order changing custody is substantial. (Burgess, supra, 13 Cal.4th at pp. 38-39.) "We have previously held that 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." [Citation.]" (Burgess, supra, 13 Cal.4th at p. 38.)
Here, Dr. Volcanis opinion, as well as the observations of Joshuas therapist, and Corey fully support the trial courts decision to change custody. As we have outlined, Dr. Volcani found that Joshua was not thriving emotionally in Elizabeths care. That finding was consistent with the observations of the therapist and Corey. Even Elizabeth conceded that Joshua was not thriving, a condition she attributed to Corey. Joshuas emotional state, as found by Dr. Volcani, is the type of condition which makes it essential that there be a change in custody.
On appeal Elizabeth argues that Dr. Volcanis view that children need to let go of their mothers demonstrated a gender-based bias which discredited his other conclusions. Like the trial court, we are not expert psychologists and have no independent means of determining whether Dr. Volcanis opinion reflects bias or accepted opinion in the field of child psychology. We note that Elizabeth could have, if she desired, presented expert testimony which rebutted Dr. Volcanis opinion about the need for children to separate from their mothers. Because she did not offer such expert opinion, there is no basis in the record upon which we can call Dr. Volcanis conclusions into question.
Elizabeth also contends the trial court should have considered ordering conjoint therapy with Elizabeth and Joshua in lieu of ordering a change in custody. In light of the fact that Dr. Volcani recommended a change in custody, the trial court was not required to order any less drastic a solution to the serious difficulties Joshua was facing.
Elizabeth contends Dr. Volcanis opinion is also suspect because he did not give sufficient weight to the Hispanic culture in which she raised Joshua and Joshuas ties to her extended family. However, Elizabeth does not cite to any portion of the record in which she raised this concern with Dr. Volcani or the trial court. The record discloses Dr. Volcani conducted thorough assessments of Corey, Elizabeth and Joshua; he also had the benefit of consulting with Joshuas therapist. Given these circumstances, the trial court could reasonably presume Dr. Volcanis opinion reflected his assessment of Joshuas connection to his mother and her family.
Elizabeth also argues there was no evidence Joshua would thrive in his fathers care. This is true, as is Elizabeths contention Dr. Volcani had serious concerns about the impact a move to Pittsburgh would have on Joshua. However, in the end, Dr. Volcani embraced a change in custody as offering the best opportunity for Joshua. The trial court did not abuse its discretion in accepting this expert opinion.
Elizabeth argues the attorney appointed to represent Joshuas interests was biased against her, conducted a biased investigation and violated the terms of the trial courts order. Although minors counsel supported Dr. Volcanis opinion, there is no basis upon which we can conclude that this opinion did not reflect counsels good faith assessment of Joshuas best interests. We also do not believe that counsels investigation of Joshuas best interest breached any duty he owed to Joshua or the court. In particular, in soliciting information for the court about the potential impact of a change of custody, it was inevitable that counsel would share with teachers or others involved in Joshuas life the prospect that Joshua would live with his father. Most importantly, there is nothing in the record which shows that counsels opinion influenced the assessment Dr. Volcani performed. As we have seen, that is the principle basis upon which the trial court determined that custody should be changed.
In addition to her complaints about counsels bias, she also faults counsel for initially representing to the court that the therapist he recommended to the trial court had a doctoral degree. However, there is nothing in the record which demonstrates that the therapist, who is a licensed clinical social worker , did not provide appropriate care for Joshua or that the absence of a doctoral degree prevented Dr. Volcani from relying on information provided by the therapist.
We also note that, contrary to Elizabeths contention, counsel relayed to the court Joshuas preference for staying with his mother, a preference which Dr. Volcani recognized and considered in making his recommendations.
In sum, the record amply supports the trial courts order changing physical custody.
Order affirmed.
We Concur:
HUFFMAN, J.
AARON, J.