Opinion
D051621
9-5-2008
In re the Marriage of NOEL RAAGAS ALFSEN and CYNTHIA ALFSEN. NOEL RAAGAS ALFSEN, Respondent, v. CYNTHIA VENIE, Appellant.
Not to be Published
BACKGROUND
Appellant Cynthia Venie (Cynthia) and respondent Noel Raagas Alfsen (Noel) had two children together, Alicia who was six at the time of these proceedings and Andrea who was sixteen. On July 30, 2004, they stipulated to a judgment of dissolution. When they separated, Cynthia and Noel tried a 50-50 split custody of the children. Noel later abandoned custody of Andrea, and she has lived with Cynthia since July 2006.
After they separated, Cynthia became engaged to David Chipman Venie. They had two children, Emily who was four at the time of these proceedings and Billy who was two years old.
On May 21, 2007, Cynthia filed a move away request and an application for change of custody of Alicia and Andrea. Noel argued that Andrea could stay with Cynthia but Alicia should live with him. On July 6, 2007, the court adopted the stipulation that Andrea relocate to New Mexico with Cynthia.
Court-ordered mediation recommended Cynthia be awarded custody of both Alicia and Andrea because they were closely bonded siblings and because Cynthia was perceived to be more child-focused and flexible in fostering a relationship with both parents. On August 9, 2007, the court issued a detailed ruling awarding physical custody to Noel. Final findings and order were entered on September 6, 2007.
Cynthia appeals, arguing the trial court erred when it used a de novo standard of review and, even if that standard was the correct one, the courts ruling is not supported by the evidence.
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." (In re Marriage of Burgess (1996) 13 Cal.4th 25, 32.)
If a trial courts decision is influenced by an erroneous understanding of applicable law or reflects an unawareness of the full scope of its discretion, it cannot be said the court has properly exercised its discretion under the law. (People v. Belmontes (1983) 34 Cal.3d 335, 348, fn. 8; In re Carmaleta B. (1978) 21 Cal.3d 482, 496.) A discretionary decision may be reversed if improper criteria were applied or incorrect legal assumptions were made. (Linder v. Thrifty Oil Co. (2000) 23 Cal.4th 429, 435-436.)
II
Cynthia asserts the de facto custody arrangement effectively gave her sole custody of Alicia and therefore the trial court erred by failing to follow the changed circumstances rule. We do not agree.
"[W]here parents share joint physical custody of the minor [child] under an existing order and in fact, and one parent seeks to relocate with the minor [child,] . . . [t]he trial court must determine de novo what arrangement for primary custody is in the best interest of the minor [child]." (In re Burgess, supra, 13 Cal.4th at p. 40, fn.12, citing Fam. Code, § 3087.) Where there is genuine joint physical custody, "a `de novo determination — in effect, a `reexamination of the basic custody arrangement — makes sense" (In re Marriage of Whealon (1997) 53 Cal.App.4th 132, 142) because one parents move will necessarily disrupt the status quo and require the court to modify the existing custody arrangement.
Where one parent has sole physical custody and seeks to relocate with the child, the noncustodial parent must prove that due to a substantial change in circumstances, it would be in the best interest of the child to change the custody order. (In re Marriage of Burgess, supra, 13 Cal.4th at pp. 37-38.) The courts look "at the existing de facto arrangement between the parties to decide whether physical custody is truly joint or whether one parent has sole physical custody with visitation rights accorded the other parent." (In re Marriage of Biallas (1998) 65 Cal.App.4th 755, 759-760.)
"Joint physical custody exists where the child spends significant time with both parents. (Fam. Code, § 3004.) For example, in Brody v. Kroll [1996] 45 Cal.App.4th 1732 [1736], the father saw the child four or five times a week. In both In re Marriage of McGinnis (1992) 7 Cal.App.4th 473, 475, and In re Marriage of Battenburg (1994) 28 Cal.App.4th 1338, 1342, the children spent four days a week with one parent and three days with the other." (In re Marriage of Biallas, supra, 65 Cal.App.4th at p. 760.)
In the division of custody in this case, Noel and Cynthia alternated weeks with Alicia, meaning the child spent seven consecutive days with Noel and seven consecutive days with Cynthia. The trial court recognized that not only had both parents been awarded shared joint custody, but the parents continued to follow the existing custody arrangement exchanging consecutive weeks of time with Alicia.
Cynthias contention the de facto custody arrangement was not a joint custody arrangement because Noel worked and required a daycare provider for Alicia is erroneous. Noels use of a daycare provider, including assistance from Alicias grandmother (Cynthias mother), does not make this case similar to cases where the courts have held the custody arrangement was not joint, such as In re Marriage of Whealon, supra, 53 Cal.App.4th 132 or In re Selzer (1994) 29 Cal.App.4th 637, 639, cases in which the fathers had alternate weekends and one weeknight every week. (In re Marriage of Biallas, supra, 65 Cal.App.4th at p. 760.)
Alicia spent significant time with both parents, seven consecutive days with Cynthia and seven consecutive days with Noel. Therefore we agree with the trial courts de novo review of the custody arrangement because the "the existing order is a true joint legal/physical custody order on a 50/50 basis" and reject Cynthias argument she had de facto sole custody of Alicia.
III
The trial court did not abuse its discretion in refusing to grant Cynthias request to move to New Mexico with Alicia and granting Noel physical custody.
When parents have joint physical custody, modification of the co-parenting arrangements does not require a changed circumstances analysis. Instead, the trial court has wide discretion to choose a parenting plan that is in the best interest of the child. (In re Marriage of Birnbaum (1989) 211 Cal.App.3d 1508, 1510.)
We cannot conclude the trial court abused its discretion by ordering Noel have physical custody. It was the trial courts function to weigh all the relevant factors regarding Alicias best interests and, absent an abuse of discretion, we do not second-guess the courts determination regarding the appropriate means to further Alicias best interests.
The court specifically found it was not in Alicias best interest to grant Cynthias request to move away with her from San Diego. The court specifically cited Cynthia and her fiancés extensive history violating Noels right to see Alicia, Cynthias refusal to participate in the psychological evaluation leaving the court without an outside professional opinion and Alicias strong ties to San Diego, having lived there all her life. The trial court summed it up, stating: "Alicias interest in stability and continuity is best served by remaining in San Diego." Under the circumstances of this case, we cannot conclude the court abused its discretion by determining the change of custody was in Alicias best interests.
DISPOSITION
The judgment is affirmed.
We concur:
McINTYRE, J.
AARON, J.