Los Angeles Daily Journal, Vol.111, issue #____, 5/ /99

In re Marriage of Congdon (1999) _____ Cal.App.4th ____, 82 Cal.Rptr.2d 686, imposes a burden of establishing a substantial change of circumstances on a parent seeking to adjust the parameters of a joint custodial timesharing arrangement.  Thus, Congdon rejects the holding of In Re Marriage of Birnbaum (1989) 211 Cal.App.3d 1508, and effectively denies modification  to a parental request to adjust a parenting plan based solely in  response to a child’s changing developmental needs. Continue reading →

“Custody Modifications Post Birnbaum: Form Over Substance?”
Los Angeles County Bar Association Family Law News and Review,
Vol. 10, #4, Fall 89

When we last wrote about the field of child custody litigation (See “The Changing Nature of the Burden of Proof in Child Custody Litigation”: Family Law News & Review, Winter 1987), the California Supreme Court had recently issues its opinion in Burchard vs. Garay 42 Cal.3d 531.  At that time, the Court indicated a move away from the “change of circumstance” rule enunciated in In re Marriage of Carney (1979)  24 Cal.3d 725 and its prodigy.

Essentially, the Supreme Court in Burchard indicated that when there existed no court order or judicial determination of a custodial arrangement, the burden for changing same was a best interest test rather than a change of circumstance test.  (It is interesting to note that numerous commentators have cited the fact that both Carney and Burchard involved initial determinations of custodial arrangements by courts, yet the burden of proof to necessitate a change in both cases, was radically different.) Continue reading →

In child custody and visitation cases, courts often appoint a mental health professional to conduct a child custody evaluation or psychological evaluation, pursuant to Evidence Code § 730. The expert will gather information from a variety of sources, including the parties, the child, witnesses, psychological testing and a home visit, and provide a written or, sometimes, oral report and recommendation to the court and parties. The report is not binding on the court, but it is usually powerful evidence bearing on the best interest of the children. Continue reading →

Since In re Marriage of Burgess (1996) 13 Cal.4th 25, was decided five years ago, the custodial parent’s right to relocate with the parties’ children has been augmented by a series of appellate rulings. However, none of these cases has identified that right at such an early stage of the proceedings as In re Marriage of Bryant (8/15/01) 2001 Daily Journal D.A.R. 8733, nor has any case so tilted the burden of proof in favor of the parent with whom the children have been residing. Continue reading →