The recent case of Montenegro v. Diaz (7/10/00) 97 Cal.Rptr.2d 782, raises a little higher the obstacle of presenting a factual “change of circumstances” which must be hurdled by a custody litigant seeking to modify a permanent decree of custody and visitation. This case, a reversal of a trial court order changing custody from mother to father, arose out of the all-too-frequent pattern of a parent with a “bad attitude” who is and always has been intent on interfering with the other parent’s custodial time with the child. The Montenegro court held, in effect, that if the “bad attitude” existed prior to the time a permanent custody order was entered, either after trial or by stipulation, the degree of continuing interference as displayed in the Montenegro case with the custodial relationship does not amount to a change of circumstances and thus the custody decree cannot be modified to ameliorate the interference.
For the family law practitioner representing a non-custodial parent, the questions presented are, first, how to protect the parent by way of findings or other language contained in a stipulated judgment so as to lay a foundation for a future change of circumstances and thus the potential change of custody and, second, how to develop the evidence in a later modification proceeding so that a court can determine that a change of circumstances has occurred.
Deborah Diaz and Alex Montenegro were the unmarried parents of one child, Gregory. When Gregory was almost 1-1/2, the parties had a disagreement about whether Alex could keep Gregory overnight, which Alex did. In response, Deborah told Alex that he could not see Gregory again. About a week later, Alex filed a complaint to establish paternity. There followed a series of orders to show cause, resulting in eight orders, the first seven of which were by stipulation and the last and eighth of which was the contested order underlying this appellate decision.
The second stipulated order, entered September 30, 1996, when Gregory was less than two years old, was the most significant procedurally. That stipulation, in which Deborah was deemed to have “primary responsibility” for Gregory’s care, custody and control and Alex was awarded visitation, was entitled “Stipulation and Order on Order to Show Cause,” with the key words “for Judgment” added by hand.
During the ensuing years, the time-sharing arrangement was modified by stipulation several times. By the time of the seventh stipulated order, on June 24, 1997, Deborah was awarded “primary physical custody” and Alex had periods of “secondary physical custody” every Tuesday and Thursday, from 12:30 p.m. (after pre-school) until the following day at 6:00 p.m., and the first weekend of the month, from Thursday at 12:30 p.m. to Sunday at 6:00 p.m.
Between September 30, 1996, and February 11, 1998, when Alex filed his last order to show cause, Deborah denied Alex some visitations, claiming that Gregory or she was ill, and selected a pre-school for Gregory that was much closer to her residence than to Alex’s, contrary to a stipulated order calling for a pre-school “between” the parents’ homes. Additionally, Dr. Bradbury, to whom the parties had been referred for a “co-parenting class,” conducted eleven joint sessions, which he viewed as mediation. Deborah missed two other sessions. Dr. Bradbury found that Deborah was “consistently quite hostile” toward Alex, whereas Alex was willing to have an amicable relationship with Deborah. Dr. Bradbury finally terminated the sessions because they were going nowhere.
The parties were unable to resolve Alex’s February 11, 1998 OSC by stipulation, so the matter went to an evidentiary hearing over several days in August 1999. By that time, Alex had married, he and his new wife had already had a son, and were expecting a second child. Gregory was due to start kindergarten in September 1999, and Deborah had already begun the process of enrolling him in a public school near her home while Alex had reserved a space for the boy in a school hear his home. Dr. Bradbury testified at the hearing as to his opinion regarding the parents’ respective attitudes toward one another.
Deborah contended that the court could not modify the existing custody order without a showing of change of circumstance. The trial court rejected her argument, stating on the record, “This is an initial trial on custody,” and ruled that therefore the “standard to apply in determining custody is best interests of the child.” The court entered a judgment of paternity, changing custody of Gregory to Alex.
The court of appeal reversed, holding that the stipulated order of September 30, 1996 was “an initial judicial determination of custody — i.e., the judgment in this matter — and that the June 24, 1997 stipulated order was therefore a post-judgment order. Therefore, the trial court could modify that judicial determination “only if changed circumstances make such an order essential or expedient for the welfare of the child.”
The Montenegro court relied on a series of California Supreme Court decisions which successively reinforce the “changed-circumstance rule”: In re Marriage of Carney (1979) 24 Cal.3d 725; Burchard v. Garay (1986) 42 Cal.3d 531; and In re Marriage of Burgess (1996) 13 Cal.4th 25. Quoting from Burchard v. Garay, the Montenegro court observed, “The changed-circumstance rule is not a different test, devised to supplant the statutory test, but an adjunct to the best-interest test. It provides, in essence, that once it has been established 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 child’s best interest.” [42 Cal.3d at 535]
Alex argued that the changed-circumstance rule did not apply because the June 24, 1997 order was entered pursuant to stipulation. The court disagreed, noting that in In re Marriage of Biallas (1998) 65 Cal.App.4th 755, that same court had rejected a similar argument.
Alex also argued that the changed-circumstances rule did not apply because the parties were sharing joint physical custody, citing the “footnote 12” exception of Burgess, supra. Again, the Montenegro panel rejected this argument, noting first that this was not a move-away case and questioning whether the exception would even apply where neither parent seeks to relocate. Interestingly, the opinion fails to mention In re Marriage of Birnbaum (1989) 211 Cal.App.3d 1508, an opinion authorized by Justice Donald B. King which held that no change of circumstances need be shown to revise a coparenting residential arrangement. Even if the “footnote 12” exception could apply in non-move-away situations, the Montenegro court went on to say, these parents were not co-parenting under the standard established in Biallas (one overnight per week and every other weekend is “liberal visitation,” not joint physical custody).
Montenegro also appears to stand for the proposition (albeit unstated in that case) that a change of circumstances is not created merely by virtue of the child getting older or passing certain developmental milestones. Notably, Gregory was about to enter kindergarten at the time of the custody hearing, and in fact, the necessity of selecting one school for him was one of the issues raised at the hearing. By that time, Gregory also had one half-sibbling and soon would have a second. Nevertheless, the panel did not refer to either event as a change of circumstance.
Thus, Montenegro continues the trend of reinforcing and tightening the changed-circumstances requirement, as well as reiterating that it applies to all final custody decrees, whether stipulated or contested.
How can a parent in Alex’s situation — one who is apparently more willing to share with the other parent frequent and continuing contact with the children — demonstrate a change of circumstances? It is helpful to analogize to spousal support cases such as In re Marriage of Aninger (1990) 220 Cal.App.3d 230, holding that a change of circumstances can be found where there has been a failure of the assumptions underlying the judgment.
In the context of child custody and visitation, therefore, knowledgeable counsel can “plan ahead” for an anticipated modification by inserting findings or benchmarks into a judgment. For example, a judgment can be based on a requirement that the parties participate in conjoint counseling “in good faith.” Or the judgment can specify that a party’s failure to permit any single visit or a small percentage of visits will comprise a change of circumstances. Or the judgment can provide that it will be modified when the oldest child begins kindergarten.
In the absence of such clear-cut assumptions, however, a party can and should present evidence of a change of circumstances at a modification hearing. Expert testimony can be effective toward that end.
In Montenegro, Dr. Bradbury testified about Deborah’s inability to share or communicate with Alex, but the record is silent on the deterioration, if any, in Deborah’s attitude, perhaps because Alex’s counsel did not believe Alex needed to show a change of circumstances. If asked, Dr. Bradbury might have been able to supply the missing evidence.
Additionally, the record is silent on how Deborah’s attitude impacted Gregory, and how her conduct might have been more damaging to a five-year-old than to a younger child. While we can take it for granted that a child will continue to grow older and therefore attain certain milestones of age, the same cannot necessarily be said about other developmental milestones. Perhaps Alex could have demonstrated that Gregory was now experiencing developmental or psychological delays as a result of Deborah’s unwillingness to cooperate with Alex. For example, was Gregory beginning to exhibit signs of social difficulties, learning disorders, or other problems.
Such evidence might have sustained a finding of a change of circumstances and thus avoided the reversal in Montenegro. Regrettably, the record was not made at the trial level. As family law practitioners, we can use Montenegro as an instructional aid, to the benefit of our clients.