In re Marriage of Schwartz

In In re Marriage of Schwartz (1980) 104 Cal.App.3d 92, the original judgment of dissolution awarded both parents joint custody of their two children. After the children spent their summer vacation with their father, based on each child's own preference, one child remained with father and the other child returned to mother. During the fall, the mother filed an order to show cause seeking sole custody of both children. During the hearing on the mother's order to show cause, the trial court, in addition to asserting its bias against severing sibling relationships, erroneously believed that the father was the moving party and imposed upon him the burden of showing his reasons for a change in custody. The trial court prompted father to admit that he also wanted sole custody of both children. The trial court essentially transformed the mother's request for modification into one by the father. (See In re Marriage of Schwartz, supra, 104 Cal.App.3d at page 96, footnote 2.) The appellate court noted: "Since it was crystal clear that the moving party was the mother], the error with respect to the burden of proof is, itself, sufficient to mandate reversal." (In re Marriage of Schwartz, supra, 104 Cal.App.3d at page 96)