Court Refuses to Allow Alienating Mother to Move the Child from Father
by Elias E. Guzman*
Few child custody disputes are more contentious and complicated than requests to move a child away from one of the parents. There is no winner and the child will most often be the loser. In the recent case Winternitz v. Winternitz (___ Cal.App.4th __, 2015 WL 1408893), we are reminded that the trial court has tremendous power in deciding the credibility of its witnesses, including a court appointed child custody evaluator, and deciding if a child can move away with one parent.
In Winternitz, Mother and Father married in 1985 and separated in 2001. They were the parents to three children, although only one was a minor and subject to the most recent custody litigation. Father was an orthopedic surgeon. In Mother’s first move away request, she was successful in obtaining an order to move the children to San Diego. A child custody evaluator concluded that Mother was in fact alienating the children from Father, but the children were strongly opposed to living with Father. Allowing the move caused a less conflicted adjustment for the children and left open the possibility of reconciliation with Father. So, Mother moved to San Diego with the children. Not wanting to be away from his children, Father followed and started a new orthopedic surgery practice in San Diego.
In 2013, after becoming engaged, Mother made her second move away request seeking to relocate with the youngest child to northern California. Her fiancé was offered a job in Chico. A child custody evaluator was appointed. The evaluation concluded that the move away of the child would be detrimental. The evaluation was the product of interviews of the parents, both individually and with the child (14 hours with Father and over 20 hours with Mother) and multiple collateral contacts. After finding that Father established the move would be detrimental on the child, the trial court denied Mother’s move away request and modified physical custody to Father in the child’s best interest. The trial court determined that Mother’s technical objections to the evaluation went to the weight of the report and not its admissibility. The court also denied Mother’s request for attorney fees.
On appeal, Mother argued the trial court erred by not complying with the various California Rules of Court that apply to child custody evaluations, failed to consider her presumptive right to move (under Family Code section 7501), failed to weigh all of the LaMusga factors, and did not give meaningful consideration to the child’s custodial preference (under Family Code section 3042). The appellate court rejected these arguments and affirmed the trial court’s rulings.
The Custodial Parent’s Presumptive Right to Relocate the Child.
A parent entitled to custody has the right to change the residence of a child, subject of the court’s power to limit that right based on the rights or welfare of the child. (Fam. Code §7501.) Mother argued that the trial court did not consider her presumptive right to move with the child. However, while the appellate court noted that the trial court may not have expressly referred to section 7501, the law “’must presume that the court knew and applied the correct statutory and case law’ and applied them to the facts in this case.” Furthermore, the evaluator addressed this right in the child custody evaluation. Thus, the trial court did not err because it did consider section 7501.
Next, Mother argued that the trial court only focused on Father’s relationship with the child to the exclusion of the LaMusga factors (seminal move away case opinion by the California Supreme Court), including the child’s need for continuity and stability with her primary caretaker, Mother.
Normally, when a custodial parent wants to move with the child, the non-custodial parent has the burden of showing the move would be detrimental to the child. This is an area of law that is not amendable to inflexible rules. Among the factors considered in move away request, are the following: child’s interest in stability and continuity in the custodial arrangement; the distance of the move; the age of the child; child’s relationship with both parents; the relationship between both parents (ability to communicate and cooperate effectively, and willingness to put the interests of the child ahead of their individual interests); wishes of the child if mature enough; and the extent to which parents are currently sharing custody. Child custody evaluators are frequently appointed to assist in making recommendations in move away cases.
A child custody evaluator must be qualified and generate an evaluation that presents their findings and makes recommendations to the court that are consistent with the health, safety, and welfare of the child. Many of the evaluation process and substance requirements are outlined in the California Rules of Court, rule 5.220.
At trial on cross exam, the child custody evaluator admitted to a host of problems with his process and evaluation (i.e., did not produce all of his telephone records), raising his voice to Mother, and accepted information directly from Father (use was marginal). Mother’s attorney moved to strike the child custody evaluation. While the court found that the evaluation was not prepared in accord with certain California Rule of Court requirements, it declined to strike the report. In the Statement of Decision, the court found that there were serious issues concerning the technical preparation of the evaluation, many objections were valid, but found that they went to “the weight of the contents of the report and [were] not sufficient to the justify having the report stricken.” The court found that the evaluator was not biased in favor of either party, and consequently considered the evaluator’s testimony and report. It is important to note that Mother never sought to remove the evaluator based on alleged bias, she only sought to strike the report for various reasons. This highlights the importance of seeking to remove evaluators who may be biased or non-compliant with the Rules of Court prior to trial, if the evidence support such.
Once a trial court determines that an expert has adequate credentials and qualifies as an expert, questions about his or her degree of expertise go to the weight of evidence and not admissibility. It is for the court to assess the credibility of all of its witnesses, including child custody evaluators.
The appellate court found that Father met his initial burden of showing that the planned move would cause substantial detriment to the child. The trial court then properly turned to the issue of whether or not changing custody of the child would be in her best interest. In making this determination, the trial court recited and addressed eight of the LaMugsa factors and other factors it believed to be relevant. The weight of the LaMugsa factors is left to the court’s sound discretion. The Statement of Decision of the trial court recognized that Mother has been the primary caretaker of the child and denying Mother’s request to move the child to Chico would result in a change in custody and disruption of the current arrangement. Despite these concerns, the trial court found that the move away request was “clearly in the child’s best interest.” The trial court found that “the factor concerning the ability and willingness of one parent to provide the other parent with the opportunity to spend as much time as possible and to be flexible with scheduling requests as a controlling factor” was key and that does not show the court failed to consider the other LaMugsa factors.
Like the LaMusga case, the appellate court “placed ‘primary importance’ on the effect the proposed move would have on ‘what is now a tenuous and somewhat detached relationship with the [child] and their father” concluding that the proposed move would be ‘extremely detrimental’ to the children’s welfare because it would disrupt the progress being made by the children’s therapist in promoting their relationship.” The appellate court agreed with the trial court in that the relationship between Father and child “’would certainly run a high risk of being greatly diminished if the request to move to Chico [were] granted’ and it was ‘Father and not…Mother who [would] encourage an ongoing relationship between the absent parent’ and the child.”
This is one of the most important parts of the appellate opinion. Mother argued that the child custody evaluation failed to consider the risks to the child if Father obtained custody. These risks included becoming depressed, withdrawn, sullen, and angry. There was also a risk that the child would become angry with Father, blame him for her not being allowed to move with Mother, and distances herself from Father and begins to pull back from that relationship. However, in agreement with the trial court and the child custody evaluation, the appellate court recognized “the greatest risk to the child was losing the relationship with Father.” (Emphasis added.) The trial court thus adequately considered the emotion concerns regarding the child and found “Father [would] work hard to alleviate those issues and to make sure that [the child had] ongoing, continued contact with…Mother.” The appellate court held it cannot reweight the evidence and based on the record, the trial court properly applied the LaMugsa factors and a reasonable basis existed on which the court could conclude its decision advanced the child’s best interest.
This case points out the importance of the parent’s ability to cooperate and support one another. The parent that encourages and is respectful of the other parent’s relationship with the children cannot be ignored; it was one of the primary factors for denying Mother’s request to move the child to Chico. The parents had long history of multiple move requests, custody evaluations, and alienation by the moving parent. Although not stated, the trial court surely could not ignore the long history of Mother’s alienation of the children from Father and the fact that Father relocated to where the children moved in her first request. This case informs us that even if you have a troubled relationship with the child who wants to move, if you are working that relationship with a therapist and are supportive of the other parent, it could prove important in establishing, in part, that the move will result in detriment.
Finally, Mother argued that the trial court failed to consider the child’s preference as required by Family Code section 3042. The appellate court determined that the child’s preference was “considered” and given “due weight,” as required by section 3042. While the trial court refused to allow the child to testify at trial, it was not doubted that the child expressed a desire to move to Chico with Mother; both sides actually agreed the child wanted to move with Mother. This was sufficient for the appellate court to conclude that the trial court did consider and give due weight to the child’s wishes. The fact that a court does not follow a child’s wishes does not amount to abuse of discretion.
Attorney Fees and Costs.
The trial court denied Mother’s request for attorney fees under Family Code sections 2030 and 2032. State law give a court the power to award attorney fees and costs awards based on the parties relative circumstances to ensure parity in legal representation in the action. The parties circumstances include, in part, assets, debts, and earning ability, ability to pay, duration of the marriage, and a party’s trial tactics. The trial court determined that neither party could afford to retain attorneys.
Both parties incurred substantial attorney fees, Mother paid her attorney $107,750 (and still owed $155,195) and Father paid his attorney $156,804 and has already been ordered to pay, and paid, Mother $69,407 for her attorney fees. Although Mother had been ordered to become employed, she had not obtained employment. A vocational evaluator concluded Mother had an earning capacity of $32,300 to $43,300 per year. Father had significant cash flow, as a orthopedic surgeon, however his net income after expenses was negative (-$92,621) and he carried significant debt. His net worth was mainly from tax deferred retirement accounts and illiquid real estate. Father’s financial analyst concluded he did not have the financial means to meet the long term obligations of his business and personal finances and required significant debt restructuring to avoid bankruptcy.
The appellate court found that the trial court was presented with evidence of indebtedness, and even though Father had a greater income than Mother, he also had greater expenses. While there was a disparity in income of the parties, neither party could afford to retain counsel. Mother argued Father employed improper litigation tactics, however the trial court did not address such in its ruling and presumably rejected the argument. On the record, the appellate court found that the trial court did not abuse its discretion in denying Mother’s request for attorney fees and costs.
*Elias E. Guzman is a Senior Attorney at Singer & Associates Law Office is a trial attorney and litigates all family law matters at the trial court level. The information presented in this article should not be construed to be formal legal advice by Singer & Associate Law Office, Inc., or the formation of an attorney-client relationship. Because of the changing nature of this area of the law and the importance of individual facts, readers are encouraged to seek independent counsel for advice regarding their individual legal issues. Feel free to contact our firm set up a consultation with one of our attorneys.