Marriage of U. and E.
Filed 12/31/12
Marriage of U. and E. CA4/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH
APPELLATE DISTRICT
DIVISION
THREE
In re Marriage of E.U. and J.E.
E.U.,
Appellant,
v.
J.E.,
Respondent.
G046687
(Super. Ct. No. 02FL002563)
O P I N I O N
Appeal
from a postjudgment order of the Superior Court of
County, Michael McCartin, Judge. Reversed with directions.
Law
Offices of Jeffrey W. Doeringer and Jeffrey W. Doeringer for Appellant.
Baron
& Legal and Brian W. Baron for Respondent.
* * *
Family Code section 3047 is intended to protect the parental rights
of deployed service members and to promote the expeditious resolution of
situations.
title="">[1] The statute establishes a presumption that a
service member returning from military service should regain his or her
pre-deployment custody of a child, unless the court determines it is not in the
child’s best interest.
The case before us illustrates the challenges faced by military
parents upon their return home from serving their country. After protracted
E.U. (father) should lose primary care of his child due to father’s temporary
deployment to Afghanistan, during which the child’s mother assumed primary custody. We hold the court erred by failing to enforce
a court order which provided that father’s custody should be reinstated upon
his return from military service, and by failing to provide the “fair,
efficient, and expeditious process to resolve [the] child custody and
visitation issue[]†intended by the Legislature when it enacted section 3047.
FACTS
In 2000, S.U. (minor) was born to father and J.E. (mother). A year later, the parents divorced.
The parents shared joint custody of minor under a court order which
provided that (1) minor would attend the
Oceanside school near father’s home, and (2) father would have primary
physical custody of minor. The court
issued this custody order in October 2005, then formalized it in a written
order in July 2006, and subsequently reaffirmed it in 2007 after ruling the
parenting arrangement was in minor’s best interests. In this opinion, we shall refer collectively
to these three custody orders as the “2006 custody order.†Pursuant to the 2006 custody order, minor
attended the Oceanside school for four years, from August 2005 to September 2009.
The 2006 custody order anticipated that father or mother might at
some time be called to active military duty.
Paragraph 11 of that five-page order provided: “If military deployment should require either
parent to leave California, the parent remaining in California should assume
the role of primary parent, with a return to the established parenting plan
upon the return of the [deployed] parent to California.â€
clause as the “reinstatement directive.â€
July 2009 to August 2010: Father’s Deployment to
In July
2009, father was activated for military duty in Afghanistan. The orders contemplated
father being (1) quartered at Camp Pendleton, California from August 2, 2009
through November 2, 2009, (2) in Afghanistan from November 3, 2009 through July
15, 2010, and (3) at Camp Pendleton from July 16, 2010 through August 21,
2010.
On August 7, 2009, father filed an order to show cause (OSC),
seeking to enroll minor at a school located midway between father’s and
mother’s homes. On August 14, 2009, the court ordered that minor should remain in the Oceanside school
near father’s home.
Meanwhile, on August 13, 2009, mother filed an
OSC, which is not in the appellate record, but which is later described by the
judge as a request for attorney fees and sanctions. Apparently, mother’s OSC was set for hearing
on September 28, 2009, because on or about August 27, 2009, father served the
court and mother with (1) an application for a stay of proceedings under the
Servicemembers Civil Relief Act (50 U.S.C. Appen. § 501 et seq.), advising them
that his “current military duties require[d him] to be present for unit
training on†September 28, 2009, and that the next date he could be in family
court was almost a year later on July 30, 2010, and (2) a letter from father’s
commanding officer, stating that father’s military duties prevented him from
attending a court hearing on September 28, 2009.
name="_ftnref4" title="">[4]
It also appears mother signed another application for an OSC on September 9, 2009, which was eventually filed with the court as an ex parte
application on September 15, 2009. Mother’s OSC sought sole legal and physical
custody of minor and a temporary order that minor be enrolled in a school near
mother’s home. (On appeal, mother has
augmented the record with a copy of this OSC, but without the supporting
declaration. It is unclear whether
mother offered any legal argument or supporting evidence as to minor’s best
interest, or whether her OSC was simply in response to father’s deployment.)
Mother apparently gave prior notice to father that she intended to
appear in court with her ex parte application on September 15, 2009, because father sent a second application for stay of the
proceedings under the Servicemembers Civil Relief Act. This application was dated September 10, 2009, and the proof of service shows delivery to the court on September 14, 2009. Father’s commanding officer
also wrote two additional letters one dated September 10, 2009, stating that
father’s military duties prevented his appearance in court for a hearing
scheduled on September 15, 2009, and another dated September 18, 2009, stating
that father’s military duties prevented his appearance in court on September
24, 2009. Both letters stated that
“military leave is not authorized for [father] at the time of this letter.â€
On September 24, 2009, in father’s absence, and apparently without
recognizing that the existing 2006 custody order already provided for the
eventuality of father’s military deployment, Judge Nancy A. Pollard found
father was deployed and issued a temporary custody order, stating: “Because of the immediacy and the necessity
to have a parent available to sign any documentation necessary should there be
an emergency for this child, [the court is] going to temporarily order, without
prejudice to father, that mother is to have the sole legal and sole physical
custody of the minor child and that that child will be enrolled in the school
of mother’s choice.†The court stated
the order would “remain in effect until [father] returns from his
deployment . . . .
At that time he may file an order to show cause to modify the custody
. . . .â€
In October 2009, father filed a motion to vacate all orders made
after August 27, 2009, and to stay the matter until he returned on July 20,
2010 from military deployment. Father
declared (1) the 2006 custody order mandated reversion to the established
parenting plan upon the return of the deployed parent to California, (2) father
was deployed, applied for a stay of proceedings under the Servicemembers Civil
Relief Act on August 27, 2009, and provided the court and mother with copies of
the necessary letters and notices, and (3) mother attached copies of those
letters to her September 15, 2009 ex parte OSC.
Although the appellate record is silent on the outcome of this motion,
obviously father received no relief relevant to this appeal.
On August 23, 2010, father was released from active duty.
October 2010 to February 2012: Court Proceedings
We summarize below the protracted
period of 17 months after father’s return home.
During this period, mother continued to have primary physical custody of
minor due to the court’s refusal to reinstate the pre-deployment custody
arrangement pursuant to the reinstatement directive of the 2006 custody order,
and mother’s failure to comply voluntarily with the reinstatement directive.
(1) October
2010: Father Appears in Court
On August 3, 2010,
shortly before father’s release from active duty, mother filed a declaration in
support of a motion to disqualify the judge, and, on the next day, the case was
reassigned to another judicial officer, apparently a commissioner.
reassigned to a different judicial officer, this time Judge Michael S.
McCartin. In a later hearing, father
explained that the case had been reassigned again because he had not agreed to
a commissioner.
On October 1, 2010, two
weeks after the case had been assigned to Judge McCartin, father appeared in
propria persona before Judge McCartin.
The record does not reflect the reason for the appearance or the nature
of the matter on calendar that day.
Father later recalled that he had “mentioned†his belief that “we were
reverting everything back on that day,†and Judge McCartin later recalled
encouraging father to file for a custody “modification.†Judge McCartin continued the matter.
(2)
From mid-January to mid-February of 2011, father was again
mobilized, this time to Korea. But as of
February 11, 2011, father was “no longer on active duty†and was “in the
Reserves [as] a civilian employee . . . .â€
(3) February 2011: Father’s OSC for
Reinstatement of
On February 16, 2011, father filed an OSC, seeking physical custody
of minor, modification of the September 2009 custody order, and reinstatement
of the 2006 custody order pursuant to section 3047. The hearing was set for March 16, 2011.
(4) March 2011:
Court Schedules Evidentiary Hearing
At the March 16, 2011 hearing on father’s OSC before Judge McCartin,
father, acting in propria persona, argued that the September 2009 custody order
was a temporary one and that, pursuant to section 3047, custody should
revert to the pre-deployment custody arrangement without delay, after which
mother would have the right to file an OSC to modify custody in minor’s best
interest. Father argued the Legislature
“did not intend that every time somebody goes overseas to fight for their
country they should have to come back and then try to establish that they’re a
good parent all over again.†Father
argued that minor attended Reynolds Elementary School in Oceanside from
kindergarten through the first trimester of fourth grade and had only moved to
another school while father was deployed.
Father argued minor was now in fifth grade and wanted to return to an
Oceanside school.
Mother’s counsel objected that father had failed to submit underlying
support with his initial pleadings as required under Code of Civil Procedure
section 1005, thereby depriving mother of her statutory 16 court days to
respond.
The court, while recognizing that section 3047 advocates an
“efficient†and “expeditious process,†interpreted the statute to
interests, at which father would have the advantage of an evidentiary
presumption. Under this interpretation,
no reversion to a prior custody arrangement could take place until the court
determined at a hearing the issue of minor’s best interest. In the court’s view, the matter “turns into
an initial custody case again.†The
court stated, “I understand the intent of the Legislature says a fair,
efficient, expeditious process. Well,
that’s three things I don’t ever see in family law is fair, expeditious, and
efficient, because we aren’t. We try to
be, but it’s really hard because we don’t have the whole — all the information
we need.â€
personal experience, he himself did not enjoy frequently changing schools;
thus, he would not change minor’s school unless minor was having trouble in the
current school.
The court placed the matter
on the law and motion calendar, “to be supplemented with testimony.†Father requested a prompt hearing so that
minor could graduate from the Oceanside school.
The court continued the hearing to May 6, 2011. The docket reflects the May 6 hearing was
continued by stipulation.
(5) July 2011: Court Orders Evidence
Code Section 730 Evaluation
Father retained counsel and filed a declaration detailing the dates
of his military deployment, mobilization, and temporary duty, along with copies
of the custody orders made before September 2009.
When father’s OSC finally came on for hearing on July 29, 2011,
Judge McCartin made the following statements.
If the Legislature intended automatic reversion to the pre-deployment
custody arrangement upon a military parent’s return from deployment, the
statute would say so. Instead, the
legislative history indicates the best interest of the child is paramount. “What [the statute] tries to do is help
military personnel from having to do exactly what happened in this case,
unfortunately: come back from deployment
and get mired in the family law system, which is what has happened in this
case, which is horrible. So the way this
has gone about up till now has been the antithesis of what the statute was
meant to do.†The court noted it had
“been trying to hint to [father] since last October†that he needed to “file
[for] a review hearing†and give the court his deployment information. Thus, father bore “equal responsibility†for
the delay. But the court acknowledged
that father’s OSC had “been tortuously continued to May 6, July 1st and July
8th and today.â€
As to father’s deployment to Afghanistan, Judge McCartin found (1)
there was no dispute that Judge Pollard’s September 2009 temporary order was
made while father was deployed, (2) mother was aware of father’s mobilization
at least by September 9, 2009, and (3) father had provided the court with proof
he was mobilized and deployed to Afghanistan from July 20, 2009 through August
23, 2010.
Father’s counsel cited the 2006 custody order’s reinstatement
directive and asked the court to “short set it for an evidentiary hearing.â€
The court instead ordered an Evidence Code section 730
evaluation to be conducted by Dr. Miriam Galindo. In the court’s view, the section 3047
presumption would only matter if Dr. Galindo could not choose between the
parents, in which case father would win.
The court clarified there would be no reversion to the
pre-deployment custody arrangement until the court reviewed the evaluator’s
report. The court stated, “I feel bad
because this is going to delay if we do a 730 . . . . ,â€
but expressed its view that father bore some responsibility for the delay by
failing to give the court his deployment information when the court requested
it in October 2010. The court stated,
“[T]he deployment period wasn’t [long] here, but I’m dealing with an order when
[minor] was five years old and he’s almost 11 [years old now].â€
(6) August 2011: Father’s Writ
Petition
On August 19, 2011, father petitioned this court for a writ of
mandate directing the trial court “to enter an order providing for the
immediate reversion†to the 2006 custody order.
Father requested prompt relief so he could enroll minor in father’s
local school before the start of the school year. On August 25, 2011, we summarily denied
father’s petition.
(7) September 2011: Matter Continued
The minute order of the September 16, 2011 hearing states, “Dr.
Galindo has not completed her report, subsequently, matter is not ready for
trial.â€
(8) January 2012: Evidence Code
Section 730 Report Completed
Dr. Galindo completed her report on January 20, 2012. Because this report is confidential, we
summarize it only briefly and as necessary.
Dr. Galindo, after a thorough investigation and review, concluded it was
not in minor’s best interest to
revert back to the original custody
arrangement and recommended that minor remain in mother’s primary care. A review of Dr. Galindo’s specific underlying
conclusions reveals her recommendation was based on her conclusion that minor,
at 11 years old and in middle school, was “doing relatively well under the
current circumstances,†had been in mother’s primary custody and had attended
the same school district for the past two years, and had an interest in the
stability and continuity of the current custodial
arrangement.
(9) February 2012: Court Refuses to Reinstate Original Custody
At the February 2, 2012 hearing, father’s counsel argued that father
was deployed for about one year, maintained contact with minor (who was then age
nine) during that time, and visited minor after his return from
deployment. The attorney noted that Dr.
Galindo found “no mental or physical impairment to [father] due to his
deployment [and] no showing of any difference in the circumstances that
existed at the time of the deployment†as to the location of parents’
respective homes, “found no evidence of abuse of the child, found no evidence
of any health or safety issues in either household, found no psychological or
psychiatric distress of the child, found that both parties supported
extracurricular activities for the child, found the child was doing as well in
school as he was before, found that the child loves both parents and wants to
see his father more, found no substance abuse issues with either household, and
found no major mood disorders or thought disorders
of . . . either party or the child.†Father’s counsel observed that Dr. Galindo’s
recommendation that mother have primary care of minor was based on the
continuity and stability of the arrangement of minor residing with mother since
mid-2009. Father’s counsel argued that
if the passage of time during father’s deployment is a basis for overcoming the
section 3047 presumption, then the purpose of the statute is abrogated.
Mother’s counsel argued, “I agree with [father’s] counsel that I
think it would be unreasonable and unfair to look at the time [father] was
deployed as a reason to modify the [custody] orders. I even go so far as to say it might be unfair
and unreasonable to look at the time that it took from February 2011 to today
to have his day in court is unfair.†But
mother’s counsel argued father was responsible for the six-month delay
from August 23, 2010 through February 2011. Mother’s counsel argued minor had made
contacts and friends during the years he had attended mother’s local
school. Mother’s counsel also made the
“procedural†argument that although Judge Pollard’s order was a temporary one,
the parties’ OSCs filed prior to September 24, 2009, had yet to be reviewed and
should come back on calendar.
The court ruled that the length of time minor was in mother’s
primary custody was significant to minor’s best interests. The court acknowledged the court delay had
been unfair to father. Nonetheless, the
“effect†of the length of time was important.
Father’s two deployments, the space between, father’s delay, and “delay
by the court†had had “a dramatic effect on the child.†Both parents were such “good parents†that
minor was in junior high school and yet willing to move to a school midway
between the parents’ homes. The court
stated minor was in sixth grade and almost 12 years old, and that at this age,
his friends and sports “become paramount . . . .†The court believed it was not in minor’s best
interests to “move him out of his current situation,†where he was doing well
in school and attached to his maternal grandfather. The court stated minor “would be fine†with
father, but “it would be not as fine.â€
The court’s statement of decision enumerated Dr. Galindo’s findings; the
benefit of continuity and stability was the only finding weighing against a
reversion to pre-deployment custody.
DISCUSSION
The
Evolution of Section 3047 Reflects the Legislature’s Growing Concern About, and
Continuing Efforts to Protect, the Parental Rights of Military Servicemembers
Father
argues this case “is a good example of what returning service members should
primary custody based on the passage of time and court delays, “a circumstance
that was beyond his control.â€
Sadly, father’s case is not uncommon. “A consistent problem that has plagued
parents returning from extended deployments in which custody arrangements were
temporarily altered was the argument by the opposing non-servicemember spouse
that the child had become accustomed to the new living arrangements and the
child’s primary residence should not be transferred again.†(Note:
Child Custody Protections in the Servicemembers Civil Relief Act (2008) 29
Whittier L.Rev. 857, 873.) “Many
servicemembers worry, and rightly so, that the temporary changes implemented
via a Family Care Plan during a servicemember’s deployment will become
permanent following their return home.â€
(Note, Race,
Employment, Economics, and the Law: Defining
the “Fitâ€: The Impact of Gender and Servicemember Status on Child Custody
Determinations (2011) 14 J. Gender Race & Just. 533, 572, fn.
omitted.)
“Given the current state of our armed forces and the military
commitments requiring the deployment and re-deployment of our nation’s
citizen-soldiers, the dilemma confronting divorced parents of young children as
to how best advance the care of those children in the absence of one parent will
undoubtedly recur. Our nation’s military
presence in Iraq and Afghanistan has stirred several state legislatures into
action.†(Faucett v. Vasquez (N.J.Super. 2009) 984 A.2d 460, 473, fn.
omitted.) In California, our Legislature
has responded to this dilemma with section 3047.
In September 2009, when
Judge Pollard issued the temporary custody order, section 3047 provided in its
entirety: “A party’s absence,
relocation, or failure to comply with custody and visitation orders shall not,
by itself, be sufficient to justify a modification of a custody or visitation
order if the reason for the absence, relocation, or failure to comply is the
party’s activation to military service and deployment out of state.â€
In March 2011, when the
court first considered father’s OSC for custody reversion, subdivision (b)(1)
of amended section 3047 provided: “If a
party with . . . physical
custody . . . receives temporary duty, deployment, or
mobilization orders from the military that require the party to move a substantial
distance from his or her residence or otherwise has a material effect on the
ability of the party to exercise custody . . . rights, a
modification of the existing custody order shall be deemed a temporary custody
order, which shall be subject to review and reconsideration upon the return of
the party . . . . If the temporary order is
reviewed upon return of the party . . . , there shall be a
presumption that the custody order shall revert to the order that was in place
before the modification, unless the court determines that it is not in the best
interest of the child.â€
name="_ftnref7" title="">[7] Subdivision (e) of amended section 3047
provided: “It is the intent of the
Legislature that this section provide a fair, efficient, and expeditious
process to resolve child custody . . . issues when a party
receives temporary duty, deployment, or mobilization orders from the military.â€
to Reinstate the Pre-deployment Custody Arrangement
Father contends the
court erred by failing to promptly enforce the 2006 reinstatement directive,
which he characterizes as “self-[e]xecuting.â€
Alternatively, he argues the court violated section 3047 by denying him
an expeditious process, ordering an Evidence Code section 730 evaluation,
and then denying him “custody reversion due to lapse of time and continuity and
stability of placement.â€
Although mother agrees with “the general legal contentions as argued
by†father’s counsel at trial, she argues, “[T]his case is fact driven. If the facts here were that there were no [OSC’s]
pending when [father] became deployed, that [father] noticed [mother] with a
clear letter as to his unavailability, [that] there was no valid [o]rder
pending for an [Evidence Code section 730] evaluation, and [that] upon return
from deployment without hesitation [father] filed a [m]otion to have his
custody reinstated, [then] it should have been.
But that is not the fact scenario we have here.â€
On appeal, we apply a de novo standard of review to the court’s
interpretation of section 3047 (California
Teachers Assn. v. San Diego Community College Dist. (1981) 28
Cal.3d 692, 699 [interpretation of statute]) and the 2006 custody order’s
reinstatement directive (John Siebel
Associates v. Keele (1986) 188 Cal.App.3d 560, 565 [interpretation of
effect of judgment]), and to the question of law of whether the court applied
the correct legal standard in ruling on father’s custody motion and OSC (
(2006) 140 Cal.App.4th 96, 100-101). We
review the court’s factual findings for substantial evidentiary support. (Robertson
v. Fleetwood Travel Trailers of California, Inc. (2006) 144 Cal.App.4th 785, 798.) We review the court’s decision to appoint an
Evidence Code section 730 evaluator for an abuse of discretion. (In re
Daniel C. H. (1990) 220 Cal.App.3d 814, 835.)
In mother’s first fact-driven argument, she asserts section 3047
simply “does not apply here.†She
argues, “There is no evidence before the court that [father] was unavailable
for his hearing on September 24, 2009 due to military activity. If [father] simply did not appear on
September 24, 2009, Judge Pollard’s [o]rders issued that date are not in
violation of [section 3047].†Mother
suggests father “was not deployed until October 31, 2009.†Mother then concludes that “Judge Pollard
made new custody, visitation and school [o]rders based upon the testimony at
hand and [each parents’ OSC] before her.â€
Essentially, mother argues Judge Pollard’s order constituted a
which father could seek to modify upon his return home by proving that his
requested modification was in minor’s best interests.
Mother’s factual assertions are
meritless. Both Judge Pollard and Judge
McCartin found to the contrary. In
August 2009, father served Judge Pollard and mother with letters documenting
his mobilization and deployment and requesting a stay of legal proceedings
pursuant to the Servicemembers Civil Relief Act. On September 24, 2009, Judge Pollard found
(1) father was deployed, (2) she had received father’s “letter saying he’s not
available until July of next year,†and (3) her order was a temporary one,
“without prejudice to father,†based on his deployment. And in July 2011, Judge McCartin found (1) on
September 24, 2009, the date of Judge Pollard’s order, father was mobilized or
deployed, (2) father notified Judge Pollard of his deployment, and (3) Judge
Pollard’s September 24, 2009 order was a temporary one necessitated by father’s
deployment. Judge McCartin also
confirmed that the court’s file contained letters from father’s commanding
officer advising that he could not attend the September hearing. Substantial evidence supports these findings.
Judge Pollard’s order was made “without
prejudice to father.†“The term ‘without
prejudice,’ in its general adaptation, means that there has been no decision of
the controversy on its merits.†(
Cal.App.2d 153, 157.) To the extent the
September 2009 order could be interpreted as being on the merits of the
controversy, i.e., a determination of custody arrangements extending beyond
father’s deployment, it would have modified the reinstatement directive in
violation of father’s due process rights, section 3047, and the Servicemembers
Civil Relief Act.
Mother next contends father caused almost a year to pass between his
return from deployment and the first hearing on his section 3047 motion. Again, Judge McCartin found otherwise. Substantial evidence supports Judge
McCartin’s finding father was responsible for no more than six months of the
delay.
2011 OSC, he was entitled to the expeditious process envisioned by section
3047.
Alternatively, mother argues that if this “court decides [father]
was protected by [section 3047] from [Judge Pollard’s order] being issued,â€
then mother is entitled to her day in court on the two OSCs that were scheduled
to be heard on September 24, 2009. She
further contends that “Judge McCartin had no choice but to enforce†Judge
Pollard’s August 2009 order requiring an Evidence Code section 730
evaluation.
We are unpersuaded. First,
the appellate record does not contain an August 2009 order requiring an
Evidence Code section 730 evaluation.
Nor does the appellate record contain a copy of mother’s August OSC,
which, according to the docket, was filed on August 13, 2009. Nor can we imagine why a section 730
evaluation would have been required in August 2009. Just four and one-half months earlier, the
court had found the existing custody order was appropriately in force, there
having been no change of circumstances.
And later, when Judge McCartin was reciting the history of the case, he
noted that on August 13, 2009, the court took father’s August 2009 OSC (seeking
to change minor’s school to a location midway between father’s and mother’s
residence) off calendar. We further note
(1) father’s pre-deployment OSC was effectively superseded by his
post-deployment OSC, and (2) based on the appellate record before us (which,
for the earlier days of this litigation, is sparse), mother’s September 2009
OSC lacked substance and appeared to be filed in response to father’s
deployment. In any case, even if mother
was entitled to a post-deployment hearing on her September 2009 OSC, she was
reversion without offering any evidence it would be detrimental to minor and by
instead relying on the outcome of an Evidence Code section 730 evaluation,
in what father argues was a “fishing expedition.†In other words, absent the necessary
countervailing showing by mother, father was entitled to regain primary
physical custody of minor, after which
mother was free to challenge the custody arrangement and to request an Evidence
Code section 730 evaluation at any time pursuant to the available legal
process.
Accordingly, having rejected mother’s assertion the 2006 custody
order was permanently modified by Judge Pollard’s temporary order, we conclude
the 2006 order’s reinstatement directive was still in effect when father
returned home. Father argues the
reinstatement directive is self-executing.
It is true the order is, by its terms, unconditional. Nonetheless, we are loath to consider a
previously-issued court order to be wholly self-executing as to future custody
changes. In our view, when a court is
asked to enforce such an order, it should conduct a limited inquiry into the child’s best interests. (§§ 3022, 3087 [court may modify joint
custody order to protect child’s best interests whenever necessary or
proper].) In that manner, the
reinstatement directive would be applied consistently with section 3047, which
creates a presumption that the custody order will revert and requires a “fair, efficient, and expeditious
process†(id., subd. (e)) to make the
determination. In conducting the limited
inquiry, the court’s analysis of the child’s best interests should be
restricted to the types of serious
concerns suggested by the legislative history of the 2012 amendment to section
3047. Thus, the reinstatement directive
of the 2006 custody order should have been enforced unless mother made a prima
facie showing of serious concerns such as (1) the child’s young age at the time
of the servicemember’s deployment suggests that a transitional period may be
needed to ease the child back into the original parenting arrangement, or (2)
the servicemember suffers mental or physical health problems that impair his or
her ability to parent.
No such concerns were present here.
Nor did mother make any prima
facie showing of minor’s best interests.
The court should have returned primary physical custody to father at
that point. The court erred by refusing
to enforce the reinstatement directive pending the completion of the Evidence
Code section 730 evaluation and a subsequent evidentiary hearing.
Dr. Galindo’s report, however, is now complete and we will not
ignore it. In the interests of judicial
economy, we will apply the correct legal standard in deciding whether its
analysis and conclusions are sufficient to justify the court’s refusal to enforce
the reinstatement directive. Our review
of Dr. Galindo’s confidential report assures us that her recommendation against
reversion to pre-deployment custody was based solely on the benefit minor would
derive from continuity and stability — criteria which always favor the non-deployed parent and which further favored
mother in this case due to the erroneous delays ordered by the trial
court. If the benefit of continuity and
stability, without more, were sufficient to overcome the statutory presumption,
or, alternatively, were sufficient to modify the terms of the reinstatement
directive, neither the statute nor the directive would have meaning. Dr. Galindo’s report reveals the best
interest evaluation was a close case.
Minor expressed his willingness to move to a school midway between
parents, thereby showing he is not wedded to mother’s local school. Minor also said he wants to see father
more. Judge McCartin found father and
mother are “both really good parents†and that minor would be fine with father,
just “not as fine.†Judge McCartin
further stated, “[M]y interpretation is that the interest in continuity and
stability of the current arrangement outweighs the presumption by not a great
amount.†We conclude that, even in light
of Dr. Galindo’s report, the court’s refusal to enforce the reinstatement
directive was erroneous.
DISPOSITION
The
March 6, 2012, order is reversed and the 2006 custody order is reinstated,
subject to a hearing on the sole issue whether the reinstatement of the 2006 custody
order should be effective immediately, or effective upon the completion of the
current school year. The trial court is
directed to hold a hearing on this issue within 20 days of this court’s
issuance of its remittitur. Father shall
recover his costs on appeal.
IKOLA,
J.
WE CONCUR:
FYBEL, ACTING P. J.
THOMPSON, J.
statutory references are to the Family Code unless otherwise stated.
granted father’s request to take judicial notice of the record in his prior
writ proceeding in case number G045667.
Accordingly, some of the facts recited in this opinion are taken from
that record.
Mother’s respondent’s
brief lacks page citations to the record.
Accordingly, we do not augment or vary our factual recitation in this
opinion by including any of mother’s unsupported factual assertions. (Cal. Rules of Court, rule 8.204(a)(1)(C)
[Each brief must “[s]upport any reference to a matter in the record by a
citation to the volume and page number of the record where the matter
appearsâ€].)
