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Mark T. v. Jamie Z

April 28, 2011

MARK T., RESPONDENT,
v.
JAMIE Z., APPELLANT.



(Super. Ct. No. D510574) APPEAL from a judgment of the Superior Court of San Diego County, Lisa C. Schall, Judge.

The opinion of the court was delivered by: Aaron, J.

CERTIFIED FOR PUBLICATION

Reversed and remanded.

I. INTRODUCTION

Jamie Z. appeals from a final order of the trial court establishing a legal and physical custody sharing arrangement pertaining to L., the minor child of Jamie and Mark T. At some point after L. was born, Mark filed a petition to establish his paternity, and the parties agreed to a temporary joint custody arrangement pursuant to which Jamie had primary physical custody of L. The court entered an order establishing Mark's paternity, and entered a temporary custody order based on the time-sharing agreement that the parties had reached. Before the court entered a permanent custody order, Jamie filed an order to show cause (OSC) requesting that the court permit her to relocate L.'s residence to Minnesota, where Jamie and L. would have the financial and emotional support of Jamie's family.*fn1

In fashioning its permanent custody order, the trial court adopted the recommendations of an evaluating psychologist whom the parties had agreed would conduct psychological evaluations of both parties. The court denied Jamie's request to relocate L.'s residence to Minnesota and retained the physical custody arrangement to which the parties had previously agreed, under which Jamie had primary physical custody of L. In making this order, the court apparently assumed--as did the evaluator--that Jamie would not move to Minnesota if the court denied her request to relocate L.'s residence.

We conclude that the trial court abused its discretion by misapplying the pertinent legal standards in the context of a move away request. When a parent who shares joint physical custody of a minor requests authorization to relocate the minor, the court must proceed on the assumption that the parent will in fact be moving, and must fashion a custody order that is in the best interests of the minor accordingly. Here, the court failed to determine what custody arrangement would be in L.'s best interests, assuming that Jamie would be relocating to Minnesota. We therefore reverse the order of the trial court and remand the matter for the court to apply the legal standard that is required when, as here, a parent who shares joint physical custody of a child under a temporary custody arrangement makes a request to relocate the child's residence.

II. FACTUAL AND PROCEDURAL BACKGROUND

Mark and Jamie are the parents of L., who was born in December 2007. At the time the court made its custody determination, L. was 22 months old. Jamie has been L's primary caregiver since his birth.

Mark and Jamie were in a dating relationship when Jamie became pregnant with L. They moved in together and lived together during the pregnancy. Jamie was fired from her job during the seventh month of her pregnancy. After L. was born, the parties' relationship became strained. In May 2008, Mark moved out of the shared residence.

In July 2008, Mark filed a petition to establish a parental relationship. Mark sought joint legal and physical custody of L. The parties met with Family Court Services (FCS), but were unable to reach an agreement regarding custody issues. Mark also filed a companion OSC seeking to address child support and attorney fee issues.

FCS filed a report with the court in September. The trial court adopted the recommendations in the FCS report concerning custody and visitation, with the exception of an item regarding when Mark would begin to have overnight visits with L. The court continued additional issues that Mark raised in his OSC to November 10, 2008.

On November 10, the court adopted the FCS recommendation regarding Mark's overnight visits with L. The court ordered that once L. reached one year of age, Mark would have physical custody of L. every weekend from Saturday at 10:00 a.m. through Sunday at 6:00 p.m. The court also made findings with respect to child support and unreimbursed expenses related to L.'s care, but continued the issues of attorney fees, rent credits and child support arrears to early February 2009.

In December 2008, Mark filed another OSC in which he requested modification of the child support order because he had been laid off from his job. Ten days later, Jamie filed an OSC in which she requested authorization to relocate L.'s residence to Minnesota. Jamie testified prior to the hearing on her move away request that she decided to seek authorization to change L.'s residence because she was unemployed and was having extreme difficulty finding a job in San Diego. She had been searching for a job in earnest since mid-October 2008.*fn2 Jamie had received some emergency aid from the State of California for a period of time before the court set child support, and she had borrowed approximately $15,000 to $20,000 from her mother and stepfather. Jamie planned to move to Minnesota and live with her mother and stepfather. Her parents and her sister would provide assistance with child care. In addition, the cost of living is significantly less in Minnesota than in California. Jamie planned to return to school part-time, and had already been offered an unpaid internship doing design work at a company in Minnesota.

Mark filed a third OSC on January 20, 2009, seeking physical and legal custody of L.

As of February 2, 2009, the parties stipulated that they would each submit to a psychological evaluation to be conducted by Dr. Lori Love. On February 4, the trial court entered a judgment establishing Mark's paternity, after the parties stipulated to that issue. The court reserved jurisdiction over questions of custody and child support.

In late February and early March, both parties filed additional OSCs regarding modification of child support, attorney fees, costs, and visitation.

In April, the parties entered into a stipulation concerning the issues that had been left unaddressed as of the November 10, 2008 hearing. For example, the parties agreed that L.'s primary residence would be with Jamie, and that Mark would have custody of L. every Monday and Wednesday from 6:00 p.m. to 8:30 p.m., and every Friday from 6:00 p.m. until Sunday at 6:00 p.m. The court adopted the terms of the parties' agreement, and ...


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