To Change or Not to Change, That is the Question

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.

The Congdon court cites Burchard v. Garay (1986) 42 Cal.3d 531, which mandated that courts “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 536.  As a result, the decision required the younger two Congdon children to continue to follow a parenting schedule which may have been no longer age-appropriate and which was at odds with their relationship with their siblings.

In Congdon, the  parties’ 1995 custody order, the result of a contested hearing,  provided for three distinct “joint custody” parenting schedules for their four children.  The parents shared alternating-week custody of their then eight - and five and one half - year old children, and shared-split week custody of their three-year-old. Their one-year-old resided primarily with the mother and spent two overnights per week with the father.  In 1997, as the younger children reached ages five and three,(close to the ages when the Cogndon’s second oldest child had commenced the alternating week schedule), the father sought modification of the prior order to place all four children on a single sharing pattern of alternating weeks.

However, Mr. Congdon, acting in pro per, did not present any evidence to the trial court as to whether the original court-ordered coparenting schedule was no longer developmentally age-appropriate.  Thus, the Congdon court (and the Fifth Appellate District) had no facts on which to base a finding of a change of circumstances sufficient to modify what the trial court, two years earlier, had perceived was a appropriate and in the children’s best interest. As such, the time share that was appropriate for the Congdon’s five year old daughter in 1995 was somehow not appropriate for their 4 year ten month old other child in 1997. The lower court and, subsequently, the Fifth District refused to follow Birnbaum, which stands for the proposition that no “changed circumstances” need be shown to revise a “coparenting residential arrangement” under a joint custody order where the provisions of the prior order for joint custody otherwise remain unchanged. Birnbaum 211 Cal.App.3d at 1511.

Notwithstanding the impracticality of maintaining three separate parenting schedules for four children the Fifth Appellate District in Congdon concurred with the trial court, noting that a change of circumstances was required to be shown before the trial court could exercise its discretion.

It is said that bad facts often result in bad law, and bad tactics don’t help either.  Mr. Cogndon’s “attitude” did not endear him to the trial court (the sins of the father in court in this case were visited down upon the children).  The Appellate Court quoted from the statements of the judicial officer below:

I find it particularly difficult to entertain someone’s contentions about what’s in the best interest of children, and people trying to persuade me that their only interest in the case is what’s in the best interest of their children when we have almost four volumes of pleadings filed.

Mr. Congdon, as far as I’ve been in this case, and I don’t know if I’ve been the only judge that has been involved other than Judge O’Hara, I doubt that.  You have essentially objected to every order that’s been made.  You have voiced your displeasure about just about every order that’s been made.  You have filed at least one appeal as I recall.

This matter’s been litigated in the bankruptcy court.  It’s been litigated here, now.  It’s being litigated at the court of appeal.

The documents relating to this motion in and of itself are of an absurd size, and I am speaking to you from a perspective of somebody who sees hundreds of cases a week, thousands of cases a month.

This case is off track, and I cannot begin to figure out where the energy or the money is coming from to continue this extremely high emotional and financial level that now continues to exist in this case.  82 Cal.Rptr.2d at ___,

Commissioner Alldredge also described this divorce case as “over-litigated … to the extent that you’re in the 99.9 percentile” and stated that, “I am not going to continue to allow this matter to proceed in the fashion that it has in the past.”  82 Cal.Rptr.2d at ___.

Congdon and the Carney line of cases ignore the  reality of the changing developmental needs of children.  In a lecture at the Vallombrosa retreat sponsored by the California Association of Family and Conciliation Courts in September 1981, the late Dorothy Huntington, Ph.D., cautioned:

[T]he child needs to know that the custody and visitation decisions can be altered.  A family needs to know that the decisions may need to be altered as a child’s developmental needs change.  We have, unfortunately, for a lot of reasons which you all understand, gotten into the assumption that once a decision is made, it’s cast in concrete.  Now, obviously, many of the good mediators and the good systems say, “Come back and let’s look at it again,” but what people feel primarily when they come back and look again is failure.  I want to present it from a different point of view.  That if people need to come back…it’s not only because something has gone wrong, but that it’s because something has gone very right, and that parents have become aware of the changing developmental needs of their children …

Children change.  A five-year-old is not a ten-year-old is not a 15-year-old, and your attachments change, the qualities change, your needs change. And we ought to think about changing custody according to that … . The issue of thinking about changes must come in if you’re really thinking about a child’s point of view.

Absent legislative or Supreme  Court resolution of this problem, counsel should provide that judgments and agreements address the anticipated changing developmental needs of children as they grow older.  Judgments and findings should provide for certain built in assumptions.  A failure of those assumptions will thus give rise to a sufficient identifiable change of circumstance to allow a court to exercise its discretion to modify the order.  As a child’s school and after school activities and interests increase, and as the child’s socialization processes grow, changing the parenting time arrangement set forth in the original plan may not only be warranted but appropriately in the child’s best interest.

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