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Requests to Modify Custody in California

"In making an initial custody determination, the court must make an award that is in accordance with the best interests of the child." (In re Marriage of Loyd (2003) 106 Cal.App.4th 754, citing Burchard v. Garay (1986) 42 Cal.3d 531; Fam. Code, § 3040.)

In Burchard v. Garay (1986) 42 Cal.3d 531, the California Supreme Court explained that the changed circumstance rule is an adjunct to the best interest test in the context of requests to modify custody:

"In deciding between competing parental claims to custody, the court must make an award 'according to the best interests of the child.' (Civ. Code, § 4600, subd. (b)). This test, established by statute, governs all custody proceedings. The changed-circumstance rule is not a different test, devised to supplant the statutory test, but an adjunct to the best-interest 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 of 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. "

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. (E.g., In re Marriage of Lamusga (2004) 32 Cal.4th 1072, 1088-1089 discussing changed circumstance rule where noncustodial parent sought custody of children due to custodial parent's impending move from California to Ohio; Montenegro v. Diaz (2001) 26 Cal.4th 249 at pp. 253-254, 256 discussing changed circumstance rule where parents sharing joint physical custody each sought sole physical custody of child; In re Marriage of Burgess (1996) 13 Cal.4th 25, 37 51 Cal. Rptr. 2d 444, concluding "same allocation of the burden of persuasion applies in the case of a custodial parent's relocation, as in any other proceeding to alter existing custody arrangements"; Goto v. Goto (1959) 52 Cal.2d 118, "A showing of changed circumstances is required to support an order changing custody" from one parent to the other.)

In Burgess, the court considered the respective burdens of proof that apply when a parent who has sole physical custody of a child seeks to relocate. (Burgess, supra, 13 Cal.4th at p. 28.)

The Burgess court held that the noncustodial parent bears the burden of establishing that a custodial parent's move would cause "prejudice" to the child and that a change in custody is " ' "essential or expedient for the welfare of the child ... ." ' " (Id. at p. 40.)

However, the Burgess court further held that even if the noncustodial parent could not carry his or her burden in garnering a change of custody, a trial court could still modify visitation orders: " Even if 'prejudice' is not established and a change in custody is not ' "essential or expedient for the welfare of the child" ' (In re Marriage of Carney, supra, 24 Cal.3d at p. 730), however, 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, e.g., by increasing the amount of visitation with the noncustodial parent during vacations from school, allocating transportation expenses to the custodial parent, or requiring the custodial parent to provide transportation of the children to the noncustodial parent's home. Indeed, such modifications of orders regarding contact and visitation may obviate the need for costly and time-consuming litigation to change custody, which may itself be detrimental to the welfare of minor children because of the uncertainty, stress, and even ill will that such litigation tends to generate." (Burgess, supra, 13 Cal.4th at p. 40.)

The Burgess court also "suggested that the changed circumstance rule does not apply when the parents have joint custody." (Montenegro, supra, 26 Cal.4th at p. 254, fn. 1; see also Lamusga, supra, 32 Cal.4th at p. 1089, fn. 3 stating that when parents share joint physical custody "if it is shown that the best interests of the children require modification or termination of the order, the court 'must determine de novo what arrangement for primary custody is in the best interest of the minor children,' " citing Burgess, supra, 13 Cal.4th at p. 40, fn. 12.)

The Burgess court explained: "A different analysis may be required when parents share joint physical custody of the minor children under an existing order and in fact, and one parent seeks to relocate with the minor children. In such cases, the custody order 'may be modified or terminated upon the petition of one or both parents or on the court's own motion if it is shown that the best interest of the child requires modification or termination of the order.' (Fam. Code, § 3087.) The trial court must determine de novo what arrangement for primary custody is in the best interest of the minor children." (Burgess, supra, 13 Cal.4th at p. 40, fn. 12.)