Burchard v. Garay

Citation229 Cal.Rptr. 800,42 Cal.3d 531
CourtUnited States State Supreme Court (California)
Decision Date22 September 1986
Parties, 724 P.2d 486, 62 A.L.R.4th 237 Ana Marie BURCHARD, Plaintiff and Appellant, v. William GARAY, Defendant and Respondent. L.A. 31957.

Gary C. Wunderlin and Allard, Shelton & O'Connor, Pomona, for plaintiff and appellant.

Arnold H. Johnson, Claremont, for defendant and respondent.


This case concerns the custody of William Garay, Jr., age two and one-half at the date of trial. Ana Burchard, his mother, appeals from an order of the superior court awarding custody to the father, William Garay.

As a result of a brief liaison between Ana and William, Ana became pregnant. Early in her term she told William that she was pregnant with his child, but he refused to believe that he was the father. William, Jr., was born on September 18, 1979.

After the birth, Ana undertook the difficult task of caring for her child, with the help of her father and others, while working at two jobs and continuing her training to become a registered nurse. William continued to deny paternity, and did not visit the child or provide any support.

In the spring of 1980 Ana brought a paternity and support action. After court-ordered blood tests established that William was the father, he stipulated to paternity and to support in the amount of $200 a month. Judgment entered accordingly on November 24, 1980. In December of that year William visited his son for the first time. In the next month he moved in with Ana and the child in an attempt to live together as a family; the attempt failed and six weeks later he moved out.

William asked for visitation rights; Ana refused and filed a petition for exclusive custody. William responded, seeking exclusive custody himself. The parties then stipulated that pending the hearing Ana would retain custody, with William having a right to two full days of visitation each week.

At the onset of the hearing Ana requested a ruling that William must prove changed circumstances to justify a change in custody. William opposed the motion, arguing that the court need only determine which award would promote the best interests of the child. The court deferred ruling on the motion. The evidence at the hearing disclosed that William, Jr., was well adjusted, very healthy, well mannered, good natured, and that each parent could be expected to provide him with adequate care.

After hearing the evidence, the court issued a statement of decision in which it impliedly ruled that the changed-circumstance rule did not apply because "there has been no prior de facto nor de jure award of custody to either parent." Applying the "best interests" test, it awarded custody to William. Its decision appears to be based upon three considerations. The first is that William is financially better off--he has greater job stability, owns his own home, and is "better equipped economically ... to give constant care to the minor child and cope with his continuing needs." The second is that William has remarried, and he "and the stepmother can provide constant care for the minor child and keep him on a regular schedule without resorting to other caretakers"; Ana, on the other hand, must rely upon babysitters and day care centers while she works and studies. Finally, the court referred to William providing the mother with visitation, an indirect reference to Ana's unwillingness to permit William visitation.

Pursuant to the court order William took custody of the child on August 15, 1982. Ana appealed from the order, and sought a writ of supersedeas. The Court of Appeal, however, denied supersedeas and subsequently affirmed the trial court's order. We granted a hearing in August 1984. Ana did not seek supersedeas, and William, Jr., remained in his father's custody pending this appeal.

We begin with a brief summary of our decision. The petition for hearing raised the question whether the changed-circumstance rule applies in a case such as this. We conclude that it cannot apply. The rule requires that one identify a prior custody decision based upon circumstances then existing which rendered that decision in the best interest of the child. The court can then inquire whether alleged new circumstances represent a significant change from preexisting circumstances, requiring a reevaluation of the child's custody. Here there is no prior determination; no preexisting circumstances to be compared to new circumstances. The trial court has no alternative but to look at all the circumstances bearing upon the best interests of the child.

But although we conclude that the trial court correctly ruled that the case was governed by the best-interest standard, we find that it erred in applying that standard. The court's reliance upon the relative economic position of the parties is impermissible; the purpose of child support awards is to ensure that the spouse otherwise best fit for custody receives adequate funds for the support of the child. Its reliance upon the asserted superiority of William's child care arrangement suggests an insensitivity to the role of working parents. And all of the factors cited by the trial court together weigh less to our mind than a matter it did not discuss--the importance of continuity and stability in custody arrangements. We therefore reverse the order of the trial court.

Upon beginning a more detailed analysis, we first consider the function of the changed-circumstance rule in child custody proceedings. In deciding between competing parental claims to custody, the court must make an award "according to the best interests of the child" (Civ. Code, § 4600, subd. (b)). This test, established by statute, governs all custody proceedings. (In re B.G. (1974) 11 Cal.3d 679, 695-696, 114 Cal.Rptr. 444, 523 P.2d 244.) The changed-circumstance rule is not a different test, devised to supplant the statutory test, but an adjunct to the best-interest test. It 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. The rule thus fosters the dual goals of judicial economy and protecting stable custody arrangements. (In re Marriage of Carney (1979) 24 Cal.3d 725, 730-731, 157 Cal.Rptr. 383, 598 P.2d 36; Connolly v. Connolly (1963) 214 Cal.App.2d 433, 436, 29 Cal.Rptr. 616.)

"The change of circumstances standard is based on principles of res judicata." (Sharp, Modification of Agreement-Based Custody Decrees: Unitary or Dual Standard? (1982) 68 Va.L.Rev. 1263, 1264, fn. 9.) The rule established in a majority of jurisdictions, which we here endorse, applies that standard whenever custody has been established by judicial decree. 1 A minority of states limit the standard further, applying it only when custody was determined through an adversarial hearing. 2 No state, so far as we have ascertained, applies the changed-circumstance standard when there has been no prior judicial determination of custody.

Ana argues that the trial court erred in failing to apply the changed-circumstance rule in the present case. But on close review of her argument it becomes clear that Ana does not claim that there has been a prior custody determination, and that the court should have examined only events which occurred subsequent to that determination. Instead, she argues simply that because she has had custody for a significant period, she and William do not start on an equal basis; instead, he should have the burden of persuading the court that a change in custody is essential or expedient for the welfare of the child. We agree in substance with this argument: in view of the child's interest in stable custodial and emotional ties, custody lawfully acquired and maintained for a significant period will have the effect of compelling the noncustodial parent to assume the burden of persuading the trier of fact that a change is in the child's best interest. That effect, however, is different from the changed-circumstance rule, which not only changes the burden of persuasion but also limits the evidence cognizable by the court.

We illustrate this distinction by reference to In re Marriage of Carney, supra, 24 Cal.3d 725, 157 Cal.Rptr. 383, 598 P.2d 36, the case Ana cites when she contends that the changed-circumstance rule can apply without a prior custody determination. When William and Ellen Carney separated in 1972, they entered into a written agreement under which Ellen relinquished custody of their two sons to William. In 1976 William was severely injured, his legs paralyzed, and the use of his hands and arms impaired. When in 1977 William filed for dissolution of the marriage, Ellen requested sole custody of the children, although she had not seen them nor contributed to their support since 1972. The trial court granted her request on the ground that William, because of his handicap, would be unable to have a normal father-son relationship with his boys.

Our opinion first noted that the statutory preference for maternal custody of a child of tender years has been repealed; under Civil Code section 4600 "the sole concern, as it should be, is 'the best interests of the child.' " (P. 730, 157 Cal.Rptr. 383, 598 P.2d 36.) That issue, we observed, arose here in a "special way" (ibid.), for although there had been no prior court order, Ellen was in effect asking for a change in an established mode of custody to which she had agreed. We therefore inquired whether William's handicap represented a change in circumstances sufficient to justify a change in custody.

The trial court's conclusion that William's handicap would prevent him from raising his children properly, we found, was based not upon the evidence at trial, but upon a...

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