Los Angeles Daily Journal - November 11, 2009

By Stacy Phillips, Karnig Greg Dukmajian and Jacqueline Shaprow

Instead of engaging in legal fiction, the court in Niko v. Foreman, 144 Cal.App. 4th 344 (2006) should have endeavored to create new law. Perhaps the answer is not to jettison the "change of circumstances" rule, but to make the rule less restrictive in move-away cases in which the parents have an equal or nearly equal custodial timeshare arrangement.

One way to accomplish this goal is to create a new, intermediate test. In move-away cases in which the parents have an equal or nearly equal custodial timeshare arrangement, when one parent seeks to change custody by moving with the child, perhaps the burden on the requesting parent should be something less than a significant change of circumstances, but something greater than merely showing that the requested change is in the child's best interest.

Accordingly, the better rule in such custody cases might be that a "compelling circumstance" - whether changed or not - should suffice to meet the requesting parent's burden, as long as the requested change is in the child's best interest. Under this test, a requesting parent cannot run to court seeking a move-away order armed simply with the argument that it is in the child's best interest. That parent needs a compelling circumstance, a reason, something - though it may not rise to the level of a change of circumstance.

For instance, in the pro-Niko hypothetical discussed above, the child's expressed preference to move out-of-state with one parent would suffice to meet the requesting parent's burden. This is so not because the preference would necessarily qualify as a change of circumstance, and also not solely because the move would be in the child's best interest in light of his preference. Instead, his preference constitutes a "compelling circumstance," providing the requesting parent the opportunity to argue that the move is in the child's best interest. This opportunity to argue does not guarantee that the move will be granted, but that the requesting parent has made a prima facie case and is thus given the right to illustrate to the court that such a move is in the child's best interest.

There may be a fine line as to which circumstances qualify as compelling. For example, if the child expressed his preference only one time several years ago, it would probably not be considered a compelling circumstance. On the other hand, if the child expressed his preference multiple times over several years, with increasing consistency and insistence, then it is more likely the expressed preference would meet the test, even if it does not qualify as a change of circumstance.

Other examples include a parent seeking to move with the child to Alaska to benefit from the absence of income and sales taxes and greater access to playing and watching hockey, which is the child's favorite sport. Consider also a parent seeking to move with the child to Florida, where that parent's large extended family resides. Neither circumstance likely qualifies as a "change or circumstances." However, each example nevertheless provides a compelling reason for the move, and the parent requesting the move should be afforded the opportunity to argue that the move is in the child's best interest.

The proposed "compelling circumstance" test kills several birds with one stone. It preserves the definition of "change in custody" while meeting the Niko court's goal of allowing flexibility in the law when a parent with equal or nearly equal custodial timeshare requests a change in custody. Most importantly, it continues to require the requesting parent to meet a burden - albeit a lowered one - by showing the court a compelling reason for the requested change, independent of and in addition to it being in the child's best interest. This "compelling circumstance" test is the threshold question - if that question can be answered to the court's satisfaction, then a best interest analysis will be undertaken.

As alluded to in the pro-Niko point-of-view above, the state of the "change of circumstances" rule is in flux, and its future is uncertain. The judicial shift began in Marriage of Birnbaum (211 Cal.App.3d 1508, 1513 (1989)), when the court ruled that when parents continue to share joint physical and legal custody, a showing of "change of circumstances" is not required to modify the "co-parenting residential arrangement."

Birnbaum was expanded to form the foundation of the decision in Niko, as well as those in two other recent cases, which have formed a body of case law demonstrating that courts have been increasingly willing to side-step the "change of circumstances" rule, having recognized its rigidity.

In Enrique M. v. Angelina V,121 Cal.App.4th 1371 (2004), the father sought to modify the parenting schedule to include additional overnight visits with the minor child. After the trial court denied the father's request based on a lack of showing of changed circumstances, the court of appeal reversed, stating the "trial court erred in applying the changed circumstance rule to [the father's] requests" since he was not seeking to modify custody, but merely sought to modify the allocation of parenting time.

In Marriage of Lucio,161 Cal.App.4th 1068 (2008), the father had limited monitored visitation six hours per week, which he sought to increase to unmonitored visitation on alternating weekends. He requested a change in the parenting plan, and the trial court denied his request, on the basis that he did not show a "change of circumstances." The court of appeal reversed that decision, holding that the father did not have to show a change of circumstances to modify the visitation schedule; he had to show only that the change would be in the child's best interest.

What these cases now need is a new test to stabilize decision-making and provide fairness to parents in move-away disputes. If family lawyers provide courts with an intermediate standard to use in equal or nearly-equal custodial timeshare cases, they will be able to provide an incentive to properly characterize a change in custody - without encouraging courts to resort to the legal fiction of characterizing such changes merely as changes in the parenting plan.

In any custody dispute, there are many conflicting interests, including those of the litigating parents and the minor child. The parent seeking to move with the child might prefer the best interest standard because it imposes the lowest burden. The parent seeking to prevent the child's move undoubtedly prefers the highest possible standard, the "change of circumstances" rule.

A compromise between these conflicting interests might work best. The courts will serve justice by keying on what is in the child's interest, by continuing to give weight to the interest in stability in the child's life, and also offering either parent the opportunity to move with the child if that parent presents a compelling reason to do so.

The carefully balanced approach of the "compelling circumstance" test, if successfully implemented, might result in future calls questioning the application of the "change of circumstances" in all other move-away cases. Whether the "change of circumstances" test should give way to the "compelling circumstance" test in every move-away situation is, of course, not an issue analyzed in this article, but is one which undoubtedly merits future analysis and thoughtful consideration.


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Stacy D. Phillips is a certified family law specialist and managing partner of Phillips, Lerner & Lauzon, L.L.P. She is also the author of Divorce: It's All About Control-How to Win the Emotional, Psychological and Legal Wars. Karnig Greg Dukmajian is an associate attorney practicing family law at Phillips, Lerner & Lauzon, L.L.P. His commentaries regarding recent family law opinions appear periodically in California Family Law Monthly. Jacqueline Shaprow is a law student at the University of Southern California, and was previously a law clerk at Phillips, Lerner & Lauzon, L.L.P.