Metropolitan News-Enterprise


Tuesday, July 31, 2001


Page 1


Changes in Some Stipulated Custody Orders Subject to Best-Interest-of-Child Rule, High Court Says


By a MetNews Staff Writer


A stipulated child custody order is not automatically a final custody determination for the purpose of what courts call the “changed circumstances rule,” the state Supreme Court ruled yesterday.

Unlike final custody orders that may be modified only on a showing of a change in the circumstances of the child and the parents, the court ruled, some orders based on agreement between the parents may have some attributes of finality but must not be deemed final, and should based on the best interests of the child.

“Child custody proceedings usually involve fluid factual circumstances, which often result in disputes that must be resolved before any final resolution can be reached,” Justice Janice Rogers Brown wrote for a unanimous court. “Although the parties typically resolve these disputes through stipulations confirmed by court order, they often do not intend for these stipulations to be permanent custody orders.  Indeed, these temporary custody orders serve an important role in child custody proceedings, and our statutory scheme expressly provides for them.”

Many parents would never agree upon custody orders if a court might later treat the stipulation as a final judicial custody determination, the justice said.

To avoid discouraging such non-litigated solutions, courts must resort to the “changed circumstances rule” only if there is a “clear, affirmative indication the parties intended such a result.”

That was not the case in the stipulated custody orders handed down by the San Bernardino Superior Court for parents Alex Montenegro and Deborah Diaz.

In the latest of several stipulations, the parents agreed to joint legal custody over their son, Gregory, with Diaz to have principal custody. But they couldn’t keep their agreement as Gregory was about to start kindergarten, and they asked for a modification of the last stipulated order.

An adversarial hearing ensued, and the court awarded primary custody to Montenegro based on the “best interests of the child” standard.

The appeals court reversed, holding that the last custody order was final, and that courts could change them only on a showing by the party seeking to modify the arrangement of changed circumstances.

But Brown said the trial court had been correct.

“In addition to the ambiguities in the orders themselves, the parties’ conduct following the entry of these orders strongly suggest that they did not intend for these orders to be final judgments as to custody,” she said. “Both Montenegro and Diaz regularly sought to modify these orders.  During these modification proceedings, Montenegro never claimed that the stipulated orders were final judicial custody determinations and never argued that the changed circumstance rule applied.  Although Diaz eventually argued that the changed circumstance rule applied, she did so on the basis that Gregory had lived with her since birth—-and not because she had stipulated to a final judgment.”

Even Diaz’s counsel argued that the hearing that the stipulated orders had no “significance at all,” and Diaz conceded that a new custody arrangement was necessary because Gregory was to start kindergarten, Brown said.

“Under these circumstances, we will not second-guess the trial court’s interpretation of its own orders and conclude that the court correctly applied the best interest standard,” the justice said. “Because the record amply supports the trial court’s determination that Montenegro should have custody of Gregory, we affirm it under the deferential abuse of discretion standard.”

The case is Montenegro v. Diaz, 01 S.O.S. 3714.


Copyright 2001, Metropolitan News Company