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In Re the Marriage of Random and Angella Blackburn. v. Angella Blackburn

December 8, 2010

IN RE THE MARRIAGE OF RANDOM AND ANGELLA BLACKBURN. RANDOM BLACKBURN, APPELLANT,
v.
ANGELLA BLACKBURN, RESPONDENT.



The opinion of the court was delivered by: McKinster Acting P.J.

Marriage of Blackburn CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

OPINION

I. INTRODUCTION

Pursuant to family court orders, appellant Random Blackburn (father) and respondent Angella Blackburn (mother) shared legal and physical custody of their two children. When school was in session, the children were with father on most weekdays and with mother on most weekends; time during breaks from school was split approximately evenly between the parents.

Mother lived at the relevant time in Victorville. Until the spring of 2009, father lived in nearby Apple Valley. At that time, father moved approximately 50 miles away to Rancho Cucamonga in order to shorten his commute to his job in Irvine. Because of the move, he requested a change in the parties' custody and visitation plan such that the children would spend every weekday at his new residence during the school year and more time with mother during the summer. The court denied the request and modified the custody arrangement such that the children would live with mother during school weeks and with father on most weekends. The children would also live with father during most of the summer. Father appealed.

Father contends the court erroneously reviewed the custody issues de novo when it should have required mother to first establish that the move would cause detriment to the children. He also asserts that various procedural errors occurred which rendered the hearings on his motion unfair. We reject these arguments and affirm.

II. FACTUAL AND PROCEDURAL BACKGROUND

Father and mother were married and had two children, Cameron and Tabitha. They were divorced in the state of Georgia in October 2000. In 2003, father moved with the children to Victorville, California. Two years later, mother moved to Victorville to be closer to the children.

In November 2005, a San Bernardino County Superior Court ordered that the parents have joint legal and physical custody. The children's "[p]rimary residence" was with father.

In April 2006, the court set forth a "Custody and Visitation share plan," which provided that during the school year the children would be with mother on alternating weekends and, on alternating weeks, from 9:00 a.m. Wednesday until 12:00 noon Thursday; otherwise, the children were with father. During breaks from school and holidays, the children's time would be divided approximately equally between the parents.

In January 2009, this plan was modified such that mother had the children on the first, third, and fifth weekends of each month, with weekends beginning at the end of the school day on Friday until the beginning of school on Tuesday morning; mother also had the children on the second and fourth Wednesdays of the month, beginning with after school pickup until the time they are dropped off at school the next morning. The allocation of time for breaks from school and holidays was unchanged. According to the trial court, this plan resulted in the children being with mother 141 days per year, or approximately 39 percent of the time.

In May 2009, father filed an order to show cause (OSC) to modify the existing custody and visitation plan and seeking "[p]ermission to move away." He proposed to modify the custody and visitation plan such that mother's weekend time with the children would end on Sunday evening (instead of Tuesday morning) and the Wednesday overnight stays with mother would be eliminated. To compensate mother for the reduced time with the children during the school year, father proposed to give mother additional time with them during summers. The children would reside with him during the school week and enroll in schools near his new home in Rancho Cucamonga.

Father offered the following facts in support of the OSC: "After nearly one year of seeking permanent employment, I have secured a new job located in Irvine, CA. The commute between this job and my home is approximately 2 to 2.5 hours each direction. I am seeking to relocate to ameliorate this commute. [¶] The children in this case . . . will be entering the 7th and 9th grades . . . . Their performance in school is exemplary, and it is in their best interest they continue attending school under their father's primary tutelage." The court set the matter for a hearing in July 2009.

Mother submitted a declaration in opposition to the request. Mother stated that the proposed change would "require a reduction in [her] custodial and visitation (parenting) time." Father, she stated, failed to consider "the needs of the children for stability and consistency and [mother's] already extensive existing contact and involvement as the children's Mother." Any benefit in reduced commute time for father, she asserted, is outweighed "by the benefit of the children remaining in the Victor Valley area and attending the University Preparatory" school, a "top grade A school." She concluded: "The proposed move would be detrimental to our children, and I believe that a change of custody is warranted at this time, and I should be awarded the primary physical custodial parent of our children especially in light of the fact also that we presently share the children almost equally."

Prior to the hearing on the request, mother and father met with a family court services mediator. The mediator also interviewed the children and the parties' family therapist. In a report to the court, the mediator stated: "While it is understandable father wishes to move closer to work to avoid a long commute time to and from Irvine, his request does not take into consideration the needs of the children to remain bonded to both parents on a continuous and frequent basis. The children have already suffered the anxiety and confusion of the parents' past conflict and are now being exposed to a new loyalty conflict." According to the mediator, "father's move will disrupt the stability and continuity of the current custodial arrangement. The current plan took a significant amount of time, effort and expense to determine and has only been in place for approximately 2-1/2 years. The distance of father's move would eliminate weekday overnights for either parent during the months the children attend school. The move also ...


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