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Jacob A v. C.H

June 30, 2011

JACOB A., PLAINTIFF AND RESPONDENT,
v.
C.H., DEFENDANT AND APPELLANT.



(Super. Ct. No. PFL2008-0012) APPEAL from a judgment of the Superior Court of El Dorado County, Nelson K. Brooks, Judge. Reversed and remanded.

The opinion of the court was delivered by: Butz ,j.

CERTIFIED FOR PUBLICATION

C.H., mother, appeals from a postjudgment order denying her request to relocate to the State of Washington with the parties' minor child and modify the parenting schedule accordingly. Mother contends the trial court erred by denying her request to relocate with the minor child and refusing to modify the parenting schedule despite her stated intent to move. We find the trial court's order was based on incorrect legal assumptions and failed to address the legal issue presented by mother's request to relocate with the child (i.e., what custody arrangement would be in the child's best interests when mother relocates to Washington).

FACTUAL AND PROCEDURAL BACKGROUND

Mother and Jacob A., father, were never married but they have a daughter, K.A., now seven years old, who suffers from Type I juvenile diabetes. When mother and father ended their relationship in December 2007, mother moved to Washington with the minor child. Mother indicated that she moved to escape an "unhealthy environment." Father claimed mother moved only to deny him his parental rights.

Mother returned to California with the child and, in January 2008, father petitioned for custody of the minor child. Shortly thereafter, mother filed her first motion seeking permission to move to Washington with the minor child. Mother and father attended mediation; the mediator recommended, "the move not take place and that [m]other have primary custody if she remained in California." After a brief evidentiary hearing, the court denied mother's request to move with the child and ordered joint legal and physical custody to the parents.

A second mediation occurred on February 1, 2008, in which father did not participate. Then, a third mediation took place on February 5, 2008. Following the third mediation, the mediator opined, "'it would be detrimental to the father/daughter relationship to move [K.A.] so far away from her father. A child [K.A.'s] age continues to form attachments and bonds with primary care givers, and the fact that father . . . most likely would not be able to travel to Washington on any consistent basis is of concern. [K.A.] needs both parents in her life. Father has been a consistent presence since [K.A.'s] birth. . . .'"

Mother and father ultimately agreed to the mediator's parenting plan, which precluded mother from relocating to Washington with the minor and gave the parents relatively equal parenting time:

"Week 1: Father drops [K.A.] off at daycare 8:00 a.m. on Monday. Mother has custody 8:00 a.m. Monday through 8:00 a.m. Tuesday. Father has custody 8:00 a.m. Tuesday through 2:00 p.m. Wednesday. Mother has custody 2:00 p.m. Wednesday through 8:00 a.m. Monday. Father has a visit on Friday from 5:00 p.m. to 8:00 p.m.

"Week 2: Mother drops [K.A.] off at 8:00 a.m. Father has custody 8:00 a.m. Monday through 2:00 p.m. Wednesday. Mother has custody from 2:00 p.m. Wednesday through 3:00 p.m. Saturday. Father has custody 5:00 p.m. Saturday to 8:00 a.m. Monday."

In November 2008, father received another notice from mother indicating that she wanted to relocate to Washington with the minor child. Father opposed the relocation and asked that a specific holiday schedule be adopted for the current parenting schedule. The parties attended mediation in mid-December 2008 and a holiday schedule was adopted; no decision was made regarding mother's request to move with the minor.

In August 2009, mother filed another request to move to Washington with K.A. and modify the parenting schedule accordingly. Mother said that, despite her best efforts, she could not find work where she was currently living, but she had a job waiting for her in Washington, as well as her extended family.

Mother argued the child's best interests were served by relocating with her to Washington and visiting father. In support of her claim, mother relied on her strong bond with the child, as well as the child's attachment to mother's family in Washington. Mother argued it was not in K.A.'s best interests to stay in California with father as her primary custodial parent because father lacked experience in dealing with K.A.'s juvenile diabetes and had a history of making poor parenting choices (i.e., driving with a suspended license with the child in the car, failing to put the child in a car seat, his arrest for driving under the influence, and failing to change K.A.'s insulin pump infusion site as required). Father opposed mother's request and the parties were referred to mediation.

Mother and father met with the court-appointed mediator, Kimberly Wilson, but failed to reach any agreements. Rather than making her own recommendation about a parenting plan that would be in the child's best interests when mother moved to Washington, however, Wilson recommended that the court appoint counsel for the minor "to investigate [the] best interests of [K.A.] with respect to a move to Washington."

On October 16, 2009, Mark Cudney was appointed as the minor's counsel and the hearing on mother's request for a move-away order was continued to October 30, 2009. Prior to the continued hearing, Cudney prepared his own report. In his report, Cudney concluded that "[t]he parties are entitled to a full evidentiary hearing on [m]other's request to move the primary residence of the minor child to Washington. [¶] In the interim, the child should continue to reside in El Dorado County. [¶] The Court should ultimately consider a parenting plan with more stability such as a 2-2-5-5 plan.[*fn1 ] [¶] A review hearing should be set if [m]other still intends to move her primary residence to Washington without the minor child."

The matter was then set for trial in March 2010.

At trial, mother testified about her failed efforts to find work locally. She described her extended family in Washington, as well as the two job offers she had pending in Washington. Mother opined that she would be better able to support K.A. financially in Washington, where finally she would have full-time employment. Mother also indicated that her family would provide additional support for K.A., and she and K.A. would live with her parents. Mother would have health care coverage for K.A. through mother's employment, and would have supplemental coverage through her mother while they lived with her parents.

Mother described the parenting plan she envisioned if K.A. were permitted to move to Washington with her: Father would visit K.A. in Washington twice monthly; mother would facilitate Web cam visits, nightly telephone calls, and e-mails with pictures. Mother further agreed father could visit K.A. with "as little as 24-hours' notice." Mother was also ...


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