Changing a Child Visitation Schedule Cases in California

In Enrique M. v. Angelina V. (2004) 121 Cal.App.4th 1371, the Court of Appeal held the trial court erred by applying the changed circumstance rule to deny a father's request to alter a visitation schedule in a joint custody arrangement. (Enrique M., supra, 121 Cal.App.4th at p. 1373.) The Court of Appeal concluded the changed circumstance rule does not apply to requests for modification of parenting or visitation arrangements not amounting to a change in custody. (Id. at pp. 1373, 1382.) In reaching this conclusion, the court noted the "California Supreme Court has repeatedly discussed the changed circumstance rule in cases involving requests to modify custody, where granting the request would remove custody from one parent and give it to the other parent." (Id. at p. 1379.) The Court concluded that case and the Supreme Court decision in In re Marriage of Burgess (1996) 13 Cal.4th 25 were consistent. (Enrique M., supra, 121 Cal.App.4th at p. 1380.) In Burgess, the Supreme Court considered the parents' respective burdens when a parent with sole physical custody of a child seeks to move away. (Burgess, supra, 13 Cal.4th at pp. 28-29.) The Burgess court held the noncustodial parent bears the burden of establishing the custodial parent's move would cause the child prejudice and a change in custody would be essential or expedient to the child's welfare. (Id. at p. 40.) If the noncustodial parent fails to meet that burden, the Burgess court confirmed nonetheless "the trial court has broad discretion to modify orders concerning contact and visitation to minimize the minor children's loss of contact and visitation with the noncustodial parent in the event of a move ... ." (Ibid.) This recognition that a trial court has residual and broad discretion to modify visitation orders led the Enrique M. court to conclude Burgess was consistent with In re Marriage of Birnbaum (1989) 211 Cal. App. 3d 1508. The Enrique M. court explained: "The Burgess court's statement that a trial court has the discretion to modify visitation orders, without any suggestion that the noncustodial parent would have to demonstrate changed circumstances to justify such changes, is fully consistent with Birnbaum. Further, the Burgess court's statement that such modifications of visitation could serve to obviate time-consuming custody litigation illustrates the distinction between requests to modify visitation, or parenting time, and requests to modify custody." (Enrique M., supra, 121 Cal.App.4th at p. 1381.) The father in Enrique M. requested an alteration in the parenting schedule to give him, each week, one extra overnight with the child and an additional overnight every other week. (Enrique M., supra, 121 Cal.App.4th at p. 1382.) The Court of Appeal stated, "although the father's proposed changes would alter the parenting schedule, in terms of potential instability for the child, they were not on a par with a request to change physical custody from sole to joint custody, or vice versa." (Ibid.) Because the father did not seek to modify custody, the Court of Appeal concluded the trial court erred by applying the changed circumstance rule. (Ibid.) The court reversed because the trial court had stated it would have reached a different result under the correct standard. (Ibid.) In Niko v. Foreman (2006) 144 Cal.App.4th 344, the court addressed the issue of which standard the trial court must use to rule on a move-away request when the parents have joint physical and legal custody of the child. The majority concluded the changed circumstance rule does not apply to a joint custody move-away situation because "modification of the co-parenting arrangements is not a change of custody requiring change of circumstances." (Id. at p. 363.) The majority held the trial court "must review de novo the best interest of the child" and may "fashion a new time-share arrangement for the parents." (Id. at p. 364.) The dissent disagreed, reasoning that moving a child out of state with one custodial parent constitutes a change in a final custody judgment and, therefore, is permitted only on a showing of changed circumstances. (Id. at pp. 371-372 (dis. opn. of Bedsworth, J.).) Birnbaum, Enrique M., and Niko concerned requests to change a parenting or visitation schedule in a joint custody arrangement, while in this case, Amanda had sole physical custody of the children. The reason for not requiring a showing of changed circumstances is equally applicable to a request to alter the visitation schedule when one parent has sole physical custody. In Enrique M., the court explained the changed circumstance rule is based in part on the need to protect stable custody arrangements believed to be in the child's best interest. (Enrique M., supra, 121 Cal.App.4th at p. 1382.) The changed circumstance rule promotes such stability "by preventing the reexamination of final judicial determinations of custody in the absence of 'some significant change in circumstances.' " (Ibid.)