Custody Modifications Post Birnbaum: Form Over Substance?

“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.)

Shortly after Burchard the case of In re Marriage of Lewin (1986) 186 Cal.App.3d 1482 was decided.  Lewin followed Burchard in holding that the burden of proof at trial to change a pendente lite custody order was a best interest standard and not a change of circumstance.

However, “change of circumstance” was not a dead theory in custody modification. In the case of In re Marriage of McLoren (1988) 202 Cal.3d 108, the Court determined that a modification to change legal custody required the same burden as a custody modification, i.e. “change of circumstance”.

As such, it was relatively safe to assume that the burden of proof with regard to custody litigation was as follows:  At the initial hearing and/or proceeding, the Court would consider the long standing established pattern of custodial arrangement, but in awarding custody at that time the Court would require a best interest showing to the party desiring changing same, rather than a “change of circumstance”, (Burchard); Pending trial, pendente lite or temporary orders could be changed by a showing of best interest rather than change of circumstance (Lewin); Post Judgment however, any change of custody, albeit legal or physical custody, would require a change of circumstance (McLoren).  The above appeared a thumb nail approach to the burden of proof in custody litigation.

However, the above analysis may or may not be effective or realistic anymore in light of In re Marriage of Birnbaum (1989) 211 Cal.3d 1508.  Arguably, Birnbaum may well be the single most significant child custody case in the last 10 years with dramatic implications for all litigants and attorneys.  Further, what is perhaps most fascinating about Birnbaum is the fact that the opinion is authored by Justice Donald King, well recognized as California’s leading family law appellate justice.  It is clear from Birnbaum that a definite message is being given from the Appellate Court to, not only the bench and bar, but mental health professionals, litigants and the public in general.

Essentially, Birnbaum involved a legal and physical custodial arrangement wherein the Birnbaums shared custody of their three daughters in the following manner:  Mother had the children during the school year all week long with the exception of Wednesday afternoons and weekends which were spent with their Father.  This arrangement was reversed during summer.  Three years after the Judgment reflecting the above-described arrangement, both parties filed cross Orders to Show Cause to terminate joint physical custody and request sole custody for themselves.  It is also significant to note that shortly after the entry of the Judgment, the Mother did relocate with the children to a different part of San Mateo County, and the issue of the children’s schooling was a major factor in the parties’ litigation.  The parties underwent a psychological evaluation which recommended that the children live three weeks of each month with the Mother and one week with the Father and spend weekends and Wednesday evenings with the non-custodial parent.

The matter was tried and the Court essentially adopted the recommendation, but awarded the three week period of time to the Father, and the one week period of time to the Mother.  The Court termed the arrangement under the new order joint legal and joint physical custody.

Mother, hereinafter referred to as “LAUREN” filed an appeal.  Mother asserted that there had been a change of custody  and that the Court had made no finding of a  sufficient change of circumstance to justify a change in custody.  This contention of Mother’s, that a Carney type of burden applied, to what appeared to her to be a change of custody was handled rather succinctly and quickly by the Appellate Court.  The Court stated in very direct but loaded language the following:

“Lauren first asserts that there is no material changed circumstances sufficient to justify a change of custody….The ba­sic deficiency in Lauren’s contention and her appeal from an order she claims changes custody is, whether there were changed circumstances or not, there has been no change of custody.  The trial court ordered, ‘the parties shall con­tinue to have and share joint legal and physical custody of their minor children’ just as they did under the prior order.  At most there has been a change in what the trial court termed the co-parenting residential arrangement….As a practical matter, if parents with joint physical custody are unable to modify residential arrangements for their children and call upon the court to do so, they have no basis to complain about the decision that is made.”

In essence, despite the fact that the Court dramatically changed the living arrangement of the parties’ three minor  children, the Appellate Court felt that the term “joint physical custody” was broad enough to encompass many numerous and different types of living arrangements so that there was in essence no real change in the custodial order.  In fact, a good portion of the opinion is spent discussing the theoretical aspects of joint custody and joint parenting.  Justice King clearly states that “equal division of a child’s time between the parents is not the hallmark of joint custody”.  This observation by the Court is then followed by a relatively lengthy quote from Isolin Ricci, Ph.d regarding different theories of parenting in post divorce situations.  The Court follows the somewhat interesting quote by Dr. Ricci with the following observations and comments:

“We include Dr. Ricci’s comments with the hope they will benefit not only the parties to this appeal, but also the bench and bar and the general public.  A better public understanding of the nature of joint physical custody is essential.  Parents must understand that successful joint physical custody depends upon the quality of the parenting relationship, not the allocation of time.  Parents must also understand that it is much harder to be a joint physical custodial parent than a sole physical custody parent.  Fully partic­ipating with the other parent to share the burden of cooperative or shared parenting for the benefit of the child is much more demanding than having sole physical custody or being a non-custodial parent.

Finally, we can not concluded without expressing our distress that parents can be as inflexible as Lauren and Ira when it comes to even slight adjustments in the time the children spend with each of them.”

Following such strong language by Justice King, and his inclusion of Dr. Ricci’s quote, raises the question as to exactly where the “change of circumstances” burden stands in post judgment custody modifications.

It is interesting to note that there was a change in the circumstances of the parties in the Birnbaum case.  The Mother had relocated the children following the entry of Judgment and as such it would not have been difficult for a Court (or perhaps even the Appellate Court) to determine that there was a change in circumstances thus supporting the Order.

But Justice King chose not to follow that approach.  In fact, Justice King’s dismissal of the necessity for a showing of a change of circumstance appears to indicate a desire on his part to have the issue of best interest as the primary consideration whenever the matter of children is before the Court.  (It may also be interesting for readers to review the opinion of Justice King in In re Marriage of Rosson (1986) 178 Cal.App.3d 1094, which we have previously characterized as a convoluted application  of the Carney burden to support a modification.)  As such, where does Birnbaum leave the practitioner with regards to determining the standard of proof necessary in a modification of custody?

It is quite clear that the name now attached to any custodial arrangement between the parties is of great significance.  It had often been thought by experienced practitioners that the name of a certain custodial arrangement was of less significance than the amount of time awarded to both parents.  (This type of thinking is generally reflective of the Court’s decision in Rosson, when a change of custody was facilitated prior to a move from Napa to San Francisco and taking into effect the parties post Judgment informal modification of time sharing.)  However, following Birnbaum it now appears quite significant as to what any type of time sharing arrangement is called.  Even the classic alternate weekend situation, if labeled to be joint physical custody, may well allow a subsequent change in the “co-parenting residential arrangements” (and in reality change custody), without the necessity of a change of circumstance showing.

One should view Birnbaum in comparison with McLoren wherein a change of legal circumstance (generally a matter not viewed with great consequence of most practitioners,) was overturned due to no change in circumstance shown.  Perhaps, a post Birnbaum approach to a legal custody modification would be for the non-legal custodial parent to request not a modification of legal custody, but only a change in specific areas of decision making and not change the underlying name of the arrangement between the parties.

It also appears that following Birnbaum the wise practitioner when he is confronted with an arrangement entitled joint physical custody will now seek a change in the “co-parenting residential arrangement”, rather than a modification of custody.   (Query as to whether or not the filing of an Order to Show Cause seeking only this type of relief would require a filing fee of $14.00 or the additional $29.00 usually required for custody/visitation modification, and as to whether or not same would also require an appointment with Conciliation Court prior to the filing.)

It thus appears to be of grave significance exactly what the custodial arrangement is called, despite the fact that there may be no disagreement at all between the parties as to decision making or the time sharing.  It is therefore wise to carefully review and consider all of the subparagraphs under Civil Code Section 4600.5 in an attempt to give the Court some guidelines in determining the name of the timesharing/custodial arrangement the parties have agreed to, but apparently can not title properly.  Although Civil Code Section 4600.5 is generally vague in its determination of the standards used to make an award of joint custody.  However, it would be the suggestion of these writers that the regular use of 4600.5(c) wherein the Court is required to state in its decision the reason for granting or denying the request, and to go beyond a mere recital that the award would not be in the children’s best interest can be an effective means of proding the Court to label an arrangement.

Where does Birnbaum leave parents whose custodial arrangements are determined to be sole custody with periods of visitation?  This appears to be the remaining area where a change of circumstance may still be required because a change of Order would result.

Finally, Birnbaum seems to strongly signal the eventual end of the “change of circumstances” burden in child custody litigation.  Depending on whether or not courts will adopt joint physical custody titles to most custodial arrangements, it appears as if the time when the sole determinant for custodial orders will be the present best interest of the children is at hand.

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