Marriage of Guinn

Filed 1/6/10 Marriage of Guinn CA1/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION ONE

This is a child custody dispute. Hephzibah Grimes (Wife) appeals from a change-of-custody order awarding John A. Guinn (Husband) sole physical custody of the parties son, Jarrod. Wife contends the trial court applied the wrong standard for determining the change of custody, and that the custody change is an abuse of discretion. We disagree and affirm.

I. FACTS

Although the record is unclear, it appears that in 2001 Husband was awarded primary custody and care of Jarrod as a result of Wifes incarceration. Upon Wifes release, Husbands employment required unusual hours so the parties agreed Wife would be Jarrods substantial care provider until Husbands work hours stabilized. In February 2006, Husband notified Wife that his hours had stabilized to a normal day shift, enabling him to resume full-time care of Jarrod. Wife responded by filing an order to show cause seeking a change of custody to her.

In January 2007, after mediation, the parties stipulated to joint legal and physical custody of Jarrod, with Wifes house being Jarrods primary residence. The stipulation was incorporated into an order of the court.

On June 24, 2008, Husband filed a motion to modify custody, to give him primary physical custody of Jarrod. Husband stated that Wife had relocated to Hawaii and wanted Jarrod to live with her. Husband strongly object[ed] to Jarrod being taken out of California. Wife responded that she had moved to Hawaii in January 2008 to attend school, majoring in electronics engineering. She wanted Jarrods primary residence to be with her in Honolulu, Hawaii.

Husband testified at the hearing on his motion, held October 8, 2008. Husband is an investigator with the Internal Affairs Division of the California Department of Corrections. He works regular business hours, with weekends and holidays off. He lives in Fairfield with his new wife and their 19-month-old son, with whom Jarrod has a good relationship. Husband has a good relationship with Jarrod. He can provide a support system in Fairfield, including members of his immediate family. Jarrod would have his own room and the structured environment he needs as a boy of 12.

Wife testified that she attends Heald College in Honolulu, where she receives training in electronics and information technology. She lives in a one-bedroom apartment with her daughter, another son, and Jarrodwho shares a converted living room with the other son. Jarrod has a full school schedule of classes and sports. He is doing well in school.

Wife admitted that she left for Hawaii in January 2008, and left Jarrod in the care of her 24-year-old son in California. She made frequent trips back to California.

After the testimony, the trial court found that Wife essentially abandoned being the primary caregiver [of Jarrod] at least by January of this year. The court found Wifes testimony about frequent California visits to be not completely credible, and further found Wife had for all practical purposes, . . . left the child here with an older half sibling . . . . Accordingly, the trial court refused to apply the presumption of Family Code section 7501, and applied the best interests of the child standard to the question of change of custody.[1]

While the court found that Jarrod had a good or excellent relationship with both parents, the court also found that Husband did more to put Jarrods interests above his own. Specifically, the court found that Wife put her own interests ahead of . . . the child and the childs relationship with the father when she decided to move to Hawaii to a place where rents are apparently much higher . . . and to share with four people as opposed to something more comfortable for the child. The court determined that Wife did not have a compelling reason to move to Hawaii: there was no reason that shes indicated that she couldnt have gone to school somewhere in the states or in California that would have made it easier for [Husband] to maintain a relationship. . . . [] Its a unilateral move on [Wifes] part. [Wife] did not give [Husband] an opportunity to have Jarrod live with him.

Considering all the various applicable factors, the trial court concluded it was in the best interests of Jarrod to live with Husband. The trial court granted Husbands motion, awarding him sole physical custody of Jarrod while the parties retained joint legal custody.

II. DISCUSSION

Wife contends the trial court erred by applying the best interests of the child standard. She admits that this standard applies when the parties share joint physical custody, and one parent decides to move away. When parents share joint physical custody and one parent seeks to relocate with the child, the trial court must determine de novo what arrangement for primary custody is in the best interest of the [child]. (In re Marriage of Burgess (1996) 13 Cal.4th 25, 40, fn. 12 (Burgess); see In re Marriage of Williams (2001) 88 Cal.App.4th 808, 812;  3087.)

But Wife argues that the present case is not actually a case of shared joint physical custody because she purportedly had physical custody of Jarrod most of the time. She relies on In re Marriage of Whealon (1997) 53 Cal.App.4th 132but that case involved one parent with primary physical custody and the other with substantial visitation rights. (Id. at pp. 137, 142.) Here, Wife and Husband had joint physical custody pursuant to a stipulation and court order.

Wife notes, correctly, that the court order for physical custody is not necessarily controlling because the Burgess de novo determination rule, quoted above, requires there to be a joint custody arrangement in fact. (Burgess, supra, 13 Cal.4th at p. 40, fn. 12; see In re Marriage of Lasich (2002) 99 Cal.App.4th 702, 714, 716 (Lasich).)[2] Wife points to a stipulation at the hearing on Husbands motion that Jarrod had been primarily living with her since 2003. Wife thus contends that there was no joint physical custody in fact, so that there should not have been a de novo determination of custody applying the test of the best interests of the child.

This brings us to the presumption of section 7501, which provides that a parent entitled to custody has the right to change the residence of the child, subject to the courts power to prohibit a change which would prejudice the childs rights or welfare. Here, the trial court properly found that Wife was not entitled to the presumption because she had abandoned primary care giving of Jarrod beginning in January 2008, when she moved to Hawaii and left Jarrod in California in the care of her adult son. In essence, the court found that Wife had relinquished primary physical custody of Jarrod nine months prior to the hearing on Husbands motion. This vitiates Wifes argument that there is no joint physical custody arrangement in fact in the present case because Jarrod lived with her: well before the trial court heard the motion, Jarrod was no longer living with Wife.

Thus, the trial court properly applied the best interests of the child standard in determining the change of custody.

Finally, Wife contends that the change of custody was an abuse of discretion. We disagree. The trial court carefully considered all the applicable factors, and found that Wife had put her own interests ahead of Jarrods and Jarrods relationship with his father by unilaterally moving away for reasons which were not compelling. The court found there was no reason Wife could not preserve that relationship by attending school in California. We see no abuse of discretion in changing custody to Husband under these circumstances.

III. DISPOSITION

The order awarding sole physical custody to Husband is affirmed.

______________________

Marchiano, P.J.

We concur:

______________________

Dondero, J.

______________________

Banke, J.

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[1] Subsequent statutory references are to the Family Code.

[2] Lasich was disapproved on other, unrelated grounds in In re Marriage of LaMusga (2004) 32 Cal.4th 1072, 1097.