Wednesday, September 1, 2004
C.A. Rules Showing of Changed Circumstances Is Not Necessary to Modify Order Dividing Parenting Time
By DAVID WATSON, Staff Writer
A parent sharing joint custody need not show changed circumstances to obtain modification of an order dividing parenting time, the Fourth District Court of Appeal ruled yesterday.
The court’s Div. One said San Diego Superior Court Judge Jeffrey S. Bostwick erred in denying a father’s bid to modify a stipulated order governing the parenting schedule and schooling of his son. Bostwick denied the motion, ruling that the father could prevail only by showing “a substantial and compelling change in circumstances” which would justify modifying the stipulated schedule to permit his son to stay with him two nights per week and attend school on a schedule that would coincide with his daughter’s.
Bostwick, Justice Cynthia Aaron explained, placed too great a burden on the father. Instead, she said, the father should have been required to establish only that the proposed change would be in his son’s best interest.
Citing Burchard v. Garay (1986) 42 Cal.3d 531 and In re Marriage of Burgess (1996) 13 Cal.4th 25, among other cases, Aaron said the rule that only a change in circumstances can support a change in custody is not applicable where the existing joint custody arrangement has not been challenged.
“The California Supreme Court has repeatedly discussed the changed circumstance rule in cases involving requests to modify custody, where granting the request would remove custody from one parent and give it to the other parent,” she observed. “….However, [the mother] has not cited, and our research has not uncovered, any published California case in which a court has held that the changed circumstance rule applies to a request to modify the allocation of parenting time, where a preexisting joint custody order was in place and custody was not at issue.”
The justice pointed out that the Court of Appeal held in 1989 in In re Marriage of Birnbaum, 211 Cal.App.3d 1508, that a court’s order which does not change custody, but only alters a parenting schedule, is not subject to the changed circumstance rule. The Birnbaum ruling was consistent with Burgess, she said.
“The Burgess court’s statement that a trial court has the discretion to modify visitation orders, without any suggestion that the noncustodial parent would have to demonstrate changed circumstances to justify such changes, is fully consistent with Birnbaum,” she wrote. “Further, the Burgess court’s statement that such modifications of visitation could serve to obviate time consuming custody litigation illustrates the distinction between requests to modify visitation, or parenting time, and requests to modify custody.”
Aaron, whose opinion was joined by Justice Terry B. O’Rourke and Presiding Justice Judith McConnell, pointed out that at the time of the request the child was spending alternating weekends with his father, as well as early evenings on Thursdays preceding the weekends with his father and Thursday nights preceding the weekends with his mother. The father’s motion requested that the schedule be modified to provide him with one extra overnight with his son each week and an additional overnight every other week.
“Although [the father’s] proposed changes would alter the parenting schedule, in terms of potential instability for [the child], they were not on a par with a request to change physical custody from sole to joint custody, or vice versa,” Aaron declared.
She noted that Bostwick said he would have reached a different result if he believed himself to be at liberty to consider only the child’s best interest in making his ruling.
“We conclude that the trial court erred in applying the changed circumstance rule to [the father’s] requests, and that such error requires reversal,” Aaron said.
The case is Enrique M. v. Angelina V., D041780.
Copyright 2004, Metropolitan News Company