IV. CUSTODY MODIFICATION PROCEEDINGS
A. Applicable Burden of Proof
1. Prior Judicial Determination:
A party seeking to change custody is required to establish a substantial change in circumstances in order to modify a final custody order. Burchard v. Garay (1986) 42 Cal. 3d 531; 229 Cal. Rptr. 800. A preliminary showing of a change of circumstance is required before the court may take testimony on the best interest of the minor child. Speelman v. Superior Court (1984) 152 Cal. App. 3d 124, 199 Cal. Rptr. 784. In Burchard, the court held:
“The changed circumstances rule is not a different test, devised to supplement the statutory test [referencing the best interests standard], but an adjunct to the best interests 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 for 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.” (Id. at 535). (Emphasis added.)
In In Re Marriage of Burgess (1996) 51 Cal. Rptr. 2d 444, 913 P.2d 473, the Cal. Supreme Court reiterated its holding in Burchard, stating:
“[A]fter a judicial custody determination, the noncustodial parent seeking to alter the order for legal and physical custody can do so only on a showing that there has been a substantial change of circumstances so affecting the minor child that modification is essential to the child’s welfare.” Id. at 453.
The California Supreme Court in Burchard emphasized that the “substantial change in circumstances” rule is consistent with the concept of res judicata, which, in turn, helps to preserve stability in a child’s life by limiting change in a custody arrangement. The Supreme Court stated:
“`The change in circumstances standard is based on principles of res judicata.’ [cites omitted] The rule established in a majority of jurisdictions, which we here endorse, applies that standard whenever custody has been established by judicial decree.” Burchard at p. 535.
In In re Marriage of Lewin (1986) 186 Cal. App. 3d 1482, the court of appeal further confirmed that in a post-judgment proceeding to modify custody, the moving party must first establish that there has been a significant change in circumstances. The Lewin court stated:
“If a final determination is made, the court can thereafter look to see how, if at all, circumstances have changed. The reasons for the rule are clear: `It is well established that the courts are reluctant to order a change of custody and will not do so except for imperative reasons; that it is desirable that there be an end to litigation and undesirable to change the child’s established mode of living.’” (Id. at 1486) (Emphasis added.)
2. Prior Stipulation
If there is no prior judicial order, but only a stipulation, the party requesting a change still has the burden of persuasion that the change is in the child’s best interests. However, he does not have to prove a change in circumstance before the Judge can consider the evidence. In actual practice, I am not sure whether there is a substantial difference between these two positions as the court will be considering all of the same evidence to determine if there is a change of circumstance.
In Burchard, supra the Supreme court stated that a parent who seeks custody does not need to show a change of circumstances if no prior judicial determination has been made. However, the court further stated that because public policy favors maintaining stability in a child’s life, a noncustodial parent who requests a change of custody bears the burden of persuading the trier of fact that the change is in the child’s best interest.
As stated, there is a strong preference for maintaining a child’s existing living situation. See In re Marriage of Carney, supra.
Regardless of how custody was originally decided upon, after the child has lived in one parent’s home for a significant period, it surely remains “undesirable” to uproot him from his “established mode of living”, and a substantial change in his circumstances should ordinarily be disapproved.
There is dicta in holdings that indicate that the court can require a change of circumstance even in cases where the current order was by way of stipulation.
The Lewin court declared that the change in circumstances rule applies to all final custody orders, regardless of whether they were resolved through litigation or stipulation by the parties. The Lewin court stated:
“In Carney, our Supreme Court recognized a substantial change of circumstances must be shown before a child can be removed from a parent with whom the child has lived for a significant period. And this, the court acknowledged, is true when custody was originally awarded pursuant to an agreement between the parties rather than a judicial decree. In re Marriage of Carney 24 Cal. 725, 157 Cal. Rptr. 383, 598 P.2d. 36.” Lewin at 1485-1486. (Emphasis added.)
The Lewin court further stated:
“The court recognized how custody is originally determined is immaterial. Whether by stipulation, or by explicit implied agreement, if the parties intend it to be a final agreement, a change of circumstances showing is required. ” (Emphasis added.) Id. at 1486.
(a) A mere restructuring of a joint custody order, even though reversing custody, does not require a showing of change of circumstance. In re Marriage of Birnbaum (1988) 211 Cal. App. 3d 1508;
(b) Intentional frustration of the noncustodial parent’s right to physical custody can be grounds for a change in circumstances. In re Marriage of Ciganovich (1976) 61 Cal. App. 3d 289.
B. What Impact Do the Desires of the Children Have on the Threshold Question of Change in Circumstances?
An adjunct to the best interest test is the “changed circumstance” rule. After a judicial custody/visitation determination, a parent seeking to alter or modify the arrangement bears the burden of demonstrating there has been a substantial change of circumstances so affecting the child that modification is “essential or expedient” for the child’s welfare. The rule is considered to be an adjunct to the best interest test as the Courts should not reexamine a previous decision addressing the custodial arrangement found to be in the child’s best interest, but, should preserve the established custody arrangement, unless “some significant change in circumstances indicates that a different arrangement would be in the child’s best interest.”
The change of circumstance rule applies only when there has been a prior custody decision since when there has been no prior judicial custody determination there are no circumstances upon which to base a comparison. It should be noted that a stipulated custody order is a judicial custody determination. “An existing custody order, however it may have originated, reflects the best interests of the child until it is shown otherwise by changed circumstances. It does not matter that the custody order was entered pursuant to a stipulation” Marriage of Biallas, supra, 65 CA4th 155.
With respect to the child’s preferences, the court must “consider” and give “due weight” to the wishes of children who are of “sufficient age and capacity to reason so as to form an intelligent preference as to custody.” (Cal. Fam. Code 3042 (a)) The issue of the threshold prerequisite to consideration of the child’s wishes, “of sufficient age and capacity,” varies with each child. The requisite maturity is not measured by any particular chronological age. While most courts become more receptive to the child’s preference as they approach adolescence, some will even listen to younger children. In addition, the court has determined that a 14 year old boy did not meet 3042 standard and thus refused to shift custody from the mother despite the child’s wishes. Marriage of Rosson, (1986) 178 Cal. App. 3d 1094.
Legally, regardless of the child’s age and “capacity to reason” the court has no mandatory duty to follow the child’s wishes. Under any set of circumstances, the statute simply requires the court to “consider” and give “due weight” to the child’s wishes.
However, case law draws a distinction as to the requisite “due weight” depending upon whether the court is presented with an initial custody determination vs. a requested modification of an existing order. Greater weight is prescribed in the instance of the modification proceedings. Assuming the child meets the threshold criteria of “sufficient age and capacity.” The rationale being that at an initial custody determination, there is considerable uncertainty as to how the future arrangement will work out; in modification proceedings, however, it is presumed that the child has a basis for comparison in formulating a preference.
As children approach adolescence they gain an increasingly stronger voice in the custody/visitation decisions that so greatly affect their lives. This is oftentimes particularly true when a child has lived exclusively with one parent.
With respect to the change of circumstance question, specifically, there is no case law, which indicates that the child’s preference, in and of itself, is sufficient, as one fact to meet the change of circumstance burden. In other words, the articulation of a preference, by itself, would not meet the burden for change of circumstance because of the numerous factors that can impinge upon the child’s opinion. However, the child’s preference must be given weight in accordance with the factual basis giving rise to the preference. Therefore, the underlying facts contributing to the basis for the child’s preference may clearly point to a situation that meets the burden of change in circumstances.
C. Practical Considerations
Home Visits in Child Custody Evaluation
1. Purpose and Intention of the Home Visit
(a) The child custody evaluation has oftentimes been referred to as a “snap-shot” of the various family systems, therefore, the child custody evaluator must gather a sense of the family and its members in a short amount of time.
(b) The home visit provides a perspective on a case that cannot be gained elsewhere.
(1) Direct observation of the physical, social and emotional environments each parent offers the child.
2. Important Information is Gathered Regarding:
(a) The neighborhood
(b) The living space for the children
(1) Including outside areas, play areas, study areas and including bedrooms
(c) Organizational aspects of the family living space
(d) Clear sense of the sleeping arrangements
(e) You obtain a good sense of the various interests and values the home reflects.
3. Direct Observation of the Family Interaction in Their Environment
(a) Children are much more comfortable in their familiar surroundings.
4. Other Issues:
(a) You should always do home visits yourself.
(1) Keeping in mind the purpose of the home visit is to get a feel and sense of the family system in its home environment, and since this comes about through direct observation, it is important to do the home visit yourself.
(2) It should not be farmed out.
(b) Do home visits when they are feasible
(1) Every case may not be able to afford the time involved to conduct a home visit, but whenever possible they should be done.
(2) Sometimes the age of the child can be a factor on the decision of whether to conduct a home visit or not.
(a) for example, with young children it is particularly important; with teenagers perhaps less so.
(c) Often it is suggested that there can be staging with respect to the home visit.
(1) With respect to the physical aspects, think for a moment of an evaluator coming to your own home and how difficult it might be to change things or arrange things
(a) Understand, that the evaluator will oftentimes ask the children how long certain items like beds, toys, furniture and pictures have been present.
(2) With respect to the interactional aspects, the trade-off of what may be gained from the home visit far outweigh any possible staging or rehearsing that may have taken place.
(d) There are different methodologies employed when conducting home visits.
(1) Some prefer to do them on the same day – a distinct advantage is the opportunity to see the child at an exchange and adjust at the two homes.
(2) Others prefer to do home visits on different days. If this is the case it is important to try to do them on the same day so that observation with respect to the routines may be more similar.
(3) The most important thing is NOT whether or not you do them on the same day, but that the home visit is done vs. not at all.
(e) One reason you may see reports where there have not been any home visits is that some evaluators may not feel comfortable conducting them.
(1) For some evaluators, they never received training or had supervised experience in conducting home visits.
(2) Maintaining the right level of professionalism while at the same time entering someone’s home can be a daunting challenge some clinicians don’t want to undertake.
(3) For those of us with social work backgrounds, the home visit is an integral part of professional experience and dates back to the times when social workers were referred as the friendly visitors.
(4) But as one thinks of the other professions, Psychiatry and Psychology, few have had the training or supervised experience of conducting home visits.
(5) So, as essential as they are, and clearly they are a significant part of a child custody evaluation in providing the evaluator with information and a context than can not be gained in any other way, further training and understanding of the home visit needs to be acquired.
(f) Art/Science – it is rarely disputed that conducting a child custody evaluation is a combination of art and science. It is important to recognize that the information and understanding gained vis-à-vis a home visit provides the evaluator with a better feeling and sense of the family system and the total context in which the children live.
Collateral Interviews in Child Custody Evaluation
5. Rationale and Context
(a) Collateral Interviews in the context of a child custody evaluation – is an extension of the information gathering process – ultimately we will be looking for a convergence of the data.
(1) The method of conducting collateral interviews parallels the legal “discovery process” where evidence is gathered before conclusions are drawn.
(2) The collateral interview is designed to check facts, fill in missing information, and provide perspectives to our understanding.
(b) Definition of a collateral: “Those individuals other than the parties directly involved in the custody dispute ” (i.e. friends, family, therapists, teachers, physicians, child care providers, etc.)
(1) The most productive interviews will almost always be with the professionals who have had contact with the children. (i.e., counselors, teachers, daycare personnel and physicians)
(a) Professionals who have daily contact with the child, like teachers, can be particularly helpful.
(b) It should be remembered that teachers and pre-school teachers have a built in normative group in the many students in the classroom, upon which they can make comparisons, relative to a child’s adjustment.
(2) The next most productive may often be lay persons who have had a neutral relationship with the child (i.e., sports coaches, scout leaders, babysitters, employers, supervisors) However, caution must be exercised because these individuals are not professionals, may have other kinds of relationships with the parents, and the anxiety produced by the nature of the topic to be discussed oftentimes may have these persons saying to little or too much.
(a) These people are also in a position to comment upon parental behavior.
(3) At the lowest importance, friends and members of the extended family
(a) While some evaluators may view these collaterals as a waste of time, it is often the case that we won’t know their value until we make the effort to interview them.
(c) The evaluator must rely on their clinical interviewing skills to establish repartee’ quickly and be able to gather the necessary information and to assess bias.
(a) Identification of who you are and the purpose of your contact.
(1) Be as non-threatening as possible while still conveying the importance of the material discussed.
(2) The issue of confidentiality must be discussed and understood by the collateral.
(b) Using schedules and/or checklist
(1) Semi-structured approach to gathering data provides useful guidelines
(a) Example: Pediatrician and Teacher Interviews
(2) Move from less threatening material to information that may be more threatening
(3) A personal telephone interview is preferable over simply having a collateral simply fill out and return a form – it allows for the proper identification of who you are; you can get more specific information on issues; and oftentimes collaterals are reluctant to place things in writing.
(c) Face-to-Face Interviews
(1) Rarely done
(2) However, spouses, fiancé’ s and extended family maybe interviewed during a home visit – with friends or extended family it is important to take control over the interview otherwise there will be a rehashing of all the allegations.
(d) Sending advance letter.
(e) Providing Release of Information
(f) Careful note taking is a must
(1) Include: Dates/times/Names and Degrees/ who they know and how long they have known them
7. Incorporation into the Report
(a) Summarize the most relevant information obtained
(b) Use as supporting data in the conclusion section of the report, where you are looking for a convergence of the data
8. Other Issues:
(a) Deciding who to interview
(1) Option: Have client prioritize list, and discuss what others might say
(b) When to interview and the ordering of the interviews
(1) With respect to the evaluation/ the ordering of the collaterals
(c) The Subjective Nature of the collateral interview:
(1) The idea with data collection is that others would be able to duplicate the process and arrive at the same results – therefor the use of the schedule interview is advantageous in this regard – the assumption being that the collateral would provide the same response to the same question, even when asked by a different evaluator.
(2) Collecting information to validate facts from other sources (i.e. parents)
(d) Handling “off the record” comments
(1) Must be made clear there are no “off-the record” comments.
(e) Pros and Cons of having collaterals submit declarations
(1) Oftentimes prepared by attorneys and therefore not formulated in the same way.
(i.e., “massaged by the attorney”)
(2) Oftentimes have an alienating effect on the future relationships with the family
(f) Pitfalls when doing collateral interviews:
(1) We walk a fine line with respect to exploring custody related issues with a collateral-
(a) We must be careful as oftentimes collaterals are wanting to be led into certain areas, but we cannot and should not direct the collateral-
(b) Therefore, open-ended kinds of questions are safer and more effective.
Important Child Custody Criteria
(Things to Look for in a Psychosocial Child Custody Evaluation)
9. Nature and Basis of Parent-Child Relationship
(a) Stable and long standing?
(b) Relative attachment to parenting figures (psychological parent).
(c) Quality of relationship (interest, knowledge, historical involvement).
(d) Behavioral history of the child.
(f) Seek revenge against former spouse?
(g) Life-style of the parent as related to the needs of the child.
10. Child’s Capacity to Adjust to a New or Different Form of Custodial Arrangement.
(a) Aspects of Temperament
(b) Child’s developmental stage
(c) Child’s ability to cope and handle stress
(d) Sibling relationships
(e) Peer relationships
(f) School performance
(g) Mental status
(h) Child’s preference (if any)
11. Quality of Nurturance
(a) Capacity of parent to guarantee child freedom from abuse, neglect or exploitation.
(b) Capacity of parent to provide a secure, stable and consistent environment.
(c) Availability, warmth, and prioritization of parental role.
(d) Awareness of their personal needs as well as those of the child, and the ability to differentiate.
(e) Feelings about the other parent (stage of divorce)
(f) Ability and willingness to provide for proper medical care.
(g) Ability and willingness to insure attendance at societal required educational institutions.
(h) Appropriateness of form of discipline.
(i) Ability and willingness to provide appropriate levels of environmental stimulation.
12. Ability to Separate Parental Role from Spousal Role
(a) Co-operation in providing physical access to the other parent.
(b) Willingness to perpetuate the child’s emotional relationship with significant others, (Grandparents and other existing relationships).
(c) Refraining from using the child as informant.
(d) Presence or absence of “parental alienation” syndrome (ability to prevent the build-up of resentments in the child toward a parent).
(e) Ability and inclination to abide by court orders.
13. Socialization and Social Support
(a) Availability of support from family and friends.
(b) Quality of child care resources.
(c) Quality of educational setting.
(d) Quality of community cultural, recreational resources.
(e) Transportation and financial requirements associated with parenting plan.
(f) Degree of social isolation.
14. Parenting Plan
(a) Does the plan afford sufficient access to both parents to allow for natural and varied forms of contact (i.e., caretaking and play/activity time)?
(b) What level of awareness does the proposed plan reflect in respect to the parent’s consideration of the developmental needs of the child (i.e. the frequency of contact vs. the need for stability and continuity).
(c) What are the child-care arrangements?
(d) Does the parent have any plans to leave the state or move a significant distance?
(e) Is the parent going to claim that it would be detrimental to the children if they could not continue to reside in the same house?
15. Parental Alienation Syndrome.
As coined by Dr Richard Gardner, the term “parental alienation syndrome describes a situation in which a child rejects the non-custodial parent as a result of overt or even unconscious manipulation by the custodial parent (The Parental Alienation Syndrome and the Differentiation Between Fabricated and Genuine Child Sex Abuse, 1987, Cresskill, New Jersey, Creative Therapeutics). Parental Alienation Syndrome (“PAS”) is characterized by statements of hatred and rejection for one parent. “It is the extent and depth of the alienation that differentiates the parental alienation syndrome from the mild alienation that is engendered in many divorces.” (Gardner, p. 86).
16. Factors Behind PAS
PAS can develop if a non-custodial parent and child discontinue contact. Mary Lund, Ph.D., A Therapist’s View of Parental Alienation Syndrome, 16th Annual Child Custody Colloquium: Child Custody Compendium, February 5, 1994, at pp. 88-89, describes circumstances in which PAS develops.
(a) Separation anxiety. This is a normal developmental problem. Pre-school children often experience some form of separation anxiety when leaving the custodial parent. It helps to reassure the child and try to lower the child’s anxiety.
(b) Deficits in the non-custodial parent’s skills. The classic scenario consists of the rejected and hated parent as being the father. Very often, the father has a “distant, rigid style, and is seen by the child as authoritarian.” Lund, p. 91. This style contrasts with the more indulgent, clinging style of the other parent. Lund suggests therapy to help the father better express affection and to help the mother find an identity outside of parenting.
(c) Oppositional behavior. It is quite common for children to go through stages where they reject a parent, making one parent a target of his or her anger at both parents. Therapy may be required in a divorced family to prevent this from developing into a full-scale and permanent rejection of a parent.
(d) High-conflict divorced families. A child may escape conflict by forming an alliance with one parent. Lund suggests that legal and therapeutic intervention have the goal of continuing contact between parent and child, “so that the child can mature enough to stand outside of the conflict and form relationships with both parents.” (Lund, p.89)
17. Degrees of PAS.
(a) Mild PAS. There is generally a healthy psychological bond between both parents and the child in such cases. Rejection of a parent may merely be caused by normal developmental problems as described above. Gardner suggests that court orders for visitation may be sufficient to address such problems.
(b) Moderate PAS. This is the category in which the majority of cases fall. Here, it is assumed that the non-rejected parent cues the child to alienate the rejected parent. A combination of court-ordered visitation and therapy may be necessary to restructure the situation.
(c) Severe PAS. Lund (p. 90) suggests this is very rare. Gardner suggests a change in custody, especially in cases where the custodial parent has severe psychopathology which affects other aspects of parenting. Lund gives examples such as a parent who has such rigid, paranoid thinking that the child becomes severely limited in his or her ability to “differentiate and mature in other aspects of life.”
18. PAS in California Law
(a) Family Code. Although the specific label of PAS has not been adopted by California courts, the factors and results of PAS are clearly considered in California law. Family Code section 3040(a)(1) provides in part: “In making an order granting custody to either parent, the court shall consider, among other factors, which parent is more likely to allow the child frequent and continuing contact with the noncustodial parent. . . .”
(b) California case law has followed this legislation without expressly adopting the term of Parental Alienation Syndrome. However, courts are clearly considering the importance of maintaining contact with the noncustodial parent. The conduct described in some cases fit Gardner’s theory of PAS.
(1) In Wood v. Wood (1983) 141 Cal. App. 3d 671, the court held that it was proper for the trial court to change physical custody from the mother to the father when the evidence had indicated the mother had been attempting to sever the children’s relationship with their father. The court found that the father was more likely than the mother to allow interaction between the children and the other parent, thus allowing the development of a good relationship between the children and both of the parent.
(2) In Coursey v. The Superior Court of Sutter County, 194 Cal. App. 3d 147 (1987), the court adopted the concept of PAS when it required both parents to encourage contact, communication, and visitation between the children and both parents.
(3) In Catherine D. v. Dennis B. (1990) 269 Cal. Rptr. 547, the trial court’s transfer of primary physical custody from mother to father was upheld. The court discussed the mother’s repeated efforts to thwart the father’s visitation rights, her badmouthing of the father as a parent and her “brainwashing” of the son against his father.
19. Proposed Solutions
(a) Legal Interventions.
(1) Early negotiation or mediation. This approach may provide, “a rapid solution to child estrangement that can evolve into total rejection of one parent by a child.” Lund, p. 92. Such legal intervention, (or prevention, in a sense), can maintain contact between parent and child. Further, mediation or negotiation can be used to select a neutral third party to evaluate the reasons behind a child’s rejection of a parent. It may be helpful for the court to appoint a guardian ad litem to help re-establish contact between parent and child.
(2) Court-ordered visitation. This is especially useful in cases where the child’s apparent rejection of one parent is mainly due to a lack of contact. However, if the child is old enough to refuse visitation, it is difficult to effectively intervene to establish some sort of continuing contact between the child and non-custodial parent.
(3) Transfer of custody. In cases where a parent actively programs a child against the other parent, Gardner recommends that the court transfer custody immediately to the “hated” parent for a month or two. This could interfere with the attachment process for young children.
(4) Joint custody. This approach may prevent a sole custodial parent from becoming overbearing. Beverly Groner, former chair of the American Bar Association Section of Family Law has stated, “Parents who have sole custody very often perceive that they have an entitlement to be a dictator and tyrant over their children and to withhold and grant privileges to see them in accordance with their own values.” Debra Cassens Moss, “Teaching Kids to Hate: Children can be Weapons in Post-Divorce Wars,” ABA Journal, June 1, 1988, at 20.
(b) Therapeutic Interventions.
(1) Therapy. For parents, therapy should be designed to strengthen parenting skills and become aware of factors that contribute to the child’s rejection of one parent. Lund suggests that the “hated parent” become aware of his or her own contributions to the child’s rejection, while the “loved parent” should actively encourage a relationship between the child and the other parent.
(2) Parent-child sessions. Lund suggests one-on-one sessions in which a parent and child are brought together. This allows the child to have contact with the rejected parent in a less emotionally intense manner.
An awareness of PAS can allow attorneys to act with foresight in custody proceedings to avoid escalation of rejection and conflict. Attorneys can seek court-ordered visitation, monitored visitation, change of custody/visitation and even court-ordered counseling in appropriate circumstances.