WHAT IS THE CHANGED CIRCUMSTANCE RULE FOR CUSTODY AND VISITATION?
WHAT IS THE CHANGED CIRCUMSTANCE RULE FOR CUSTODY AND VISITATION?
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WHAT IS THE CHANGED CIRCUMSTANCE RULE FOR CUSTODY AND VISITATION?

| Nov 24, 2019 | Firm News

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Tanya McKean appealed from the trial court’s order granting sole legal and physical custody of her two younger children in favor of their father, Scott McKean. Tanya claimed the court abused its discretion by modifying the parties’ custody order absent sufficient evidence of changed circumstances. Specifically, Tanya asserted the court erred when it determined that by granting her sole legal and physical custody of her severely disabled daughter, she was rendered incapable of maintaining joint legal and physical custody of her two younger children.

In June 2009, Scott filed a petition for dissolution of his 12-year marriage to Tanya. In 2004, Tanya and the couple’s three young children were in a horrible car accident when another driver ran a red light. Their oldest daughter, Cheyenne, was killed. Their daughter Si. suffered massive head injuries and was left with permanent major brain damage that necessitates constant medical attention and therapy. The couple had another daughter, Sa., and their son, W., was born in March 2006.

In the legal action following the car accident, Si. received a settlement that provides $20,000 a month for her treatment, therapy, and caregivers. Tanya received a settlement of $2.4 million, and Scott received a settlement of $1.2 million. [¶] Sadly, the accident did more than take the life of one child and devastate the life of another—it left in its wake the eventual destruction of Scott and Tanya’s marriage. The record is replete with accusations and recriminations leveled by each demonstrating the parties are utterly unable to agree on even the smallest of matters when it comes to Si.’s care, and to the parenting and custody of the children.” (In re Marriage of McKean (Apr. 27, 2012, G045511) [nonpub. opn.].)

The parties have been engaged in litigation for more than a decade. There have been numerous orders made, challenged, and modified with regard to custody and visitation issues.

Tanya appealed from the 2017 order granting Scott sole legal and physical custody of Sa. and W. She contended the 2017 order constituted an abuse of discretion because it was unsupported by evidence of changed circumstances. The California Court of Appeal agreed.

Family Code section 3087 allows a parent to request modification of a joint custody order. “An order for joint custody may be modified . . . if it is shown that the best interest of the child requires modification . . . of the order.” (§ 3087.) “California’s statutory scheme governing child custody and visitation determinations is set forth in the Family Code . . . . Under this scheme, ‘the overarching concern is the best interest of the child.’ [Citation.] [¶] For purposes of an initial custody determination, section 3040, subdivision (b), affords the trial court and the family ‘“the widest discretion to choose a parenting plan that is in the best interest of the child.”’ [Citation.] When the parents are unable to agree on a custody arrangement, the court must determine the best interest of the child by setting the matter for an adversarial hearing and considering all relevant factors, including the child’s health, safety, and welfare, any history of abuse by one parent against any child or the other parent, and the nature and amount of the child’s contact with the parents. [Citations.] [¶] Once the trial court has entered a final or permanent custody order reflecting that a particular custodial arrangement is in the best interest of the child, ‘the paramount need for continuity and stability in custody arrangements—and the harm that may result from disruption of established patterns of  care and emotional bonds with the primary caretaker—weigh heavily in favor of maintaining’ that custody arrangement. [Citation.] In recognition of this policy concern, we have articulated a variation on the best interest standard, known as the changed circumstance rule, that the trial court must apply when a parent seeks modification of a final judicial custody determination. [Citations.] Under the changed circumstance rule, custody modification is appropriate only if the parent seeking modification demonstrates ‘a significant change of circumstances’ indicating that a different custody arrangement would be in the child’s best interest. [Citation.] Not only does this serve to protect the weighty interest in stable custody arrangements, but it also fosters judicial economy. [Citation.]” (In re Marriage of Brown & Yana (2006) 37 Cal.4th 947, 955-956.)

“The changed-circumstance rule . . . provides, in essence, that once it has been established that a particular custodial arrangement is in the best interests of the child, the court need not reexamine that question. Instead, it 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[s].” (F.T. v. L.J. (2011) 194 Cal.App.4th 1, 15.)

 ‘“Children are not community property to be divided equally for the benefit of their parents. . . . At a minimum, children have a right to the society and companionship of their siblings.”’ (In re Marriage of Heath (2004) 122 Cal.App.4th 444, 449-50.) Furthermore, a developmental disability is not a per se compelling circumstance warranting separation. “[T]he bond between siblings should not be severed without a careful analysis of the actual impact of one child’s condition on the other, as well as the impact of separation on both children.” (Id. at pp. 450-451.)

The California Court of Appeal agreed with Tanya and held the 2017 order must be reversed and remanded. The California Court of Appeal reversed the court’s order, and remanded the matter for proceedings consistent with their opinion.

See In re the Marriage of McKean.

If you are involved in an acrimonious type divorce, custody battle, or family law matter, you need an experienced and capable attorney on your side. Contact the Law Office of Robert Rodriguez! Call (209) 596-4264 or (510) 736-4033 immediately!

Robert Rodriguez has litigated well over 100 family law cases and civil litigation matters including personal injury motor vehicle cases, dog bite and slip & fall cases, breach of contract, defamation & invasion of privacy, fraud, unfair business practice, malicious prosecution, wrongful termination, workplace and employment matters including sexual harassment, wage & hour violations, discrimination pursuant to the FEHA, Gov’t Code §§ 12940 et seq., violations of the FMLA & Pregnancy Leave, Civil Rights  discrimination pursuant to 42 U.S.C. § 1983 and Title VII of the 1964 Civil Rights Act in the State of California and California federal district courts.

* Disclaimer – Robert Rodriguez is licensed to practice only in the State of California & this analysis is applied only under State of California law.  Robert D. Rodriguez is also admitted to practice in the U.S. District Courts, Central, Northern & Eastern Districts of California.  Robert Rodriguez has practiced in the State of California Court of Appeal.

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