Opinion
NOT TO BE PUBLISHED
Appeal from an order of the Superior Court of Orange County No. 06D002511, Richard G. Vogl, Temporary Judge. Pursuant to Cal. Const., art. VI, § 21.
Elizabeth D. Fondren, John L. Dodd & Associates, and John L. Dodd for Appellant.
Law Office of Robin C. Huggins, Robin C. Huggins, Law Office of William A. Kent and William A. Kent for Respondent.
OPINION
SILLS, P. J.
Richard Walter appeals from the order granting his ex-wife’s request to move to Texas and denying his request to change primary physical custody of their daughter from her to him. We affirm.
FACTS
Brandi and Richard Walter were married in March 2004. Brandi had a daughter from a previous relationship, Abigail, who was two years old at the time of the marriage. Eighteen months later, Brandi and Richard had a daughter, Audrey. The parties separated in February 2006, and Brandi filed a petition to dissolve the marriage in March 2006. Temporary custody of Audrey was awarded to Richard. Following a court-ordered custody evaluation, the parties stipulated that Brandi would have primary physical custody, and Richard would have supervised visits amounting to a 20 percent timeshare.
After trial, the court made permanent custody orders in the judgment. It ordered Brandi and Richard to share joint legal custody of Audrey. The court found joint physical custody would be inappropriate and awarded primary physical custody to Brandi. Richard was granted visits every other weekend and on certain holidays according to a specific schedule, which amounted to an approximate 20 percent timeshare. When setting out the visitation orders, the court stated, “[Richard] shall be deemed to have physical custody for purposes of parental contact and shall be responsible for Audrey as follows: . . .” The judgment also stated, “Neither party may move the residence of Audrey from the state of California without first giving thirty days prior written notice to the other . . . .” The court filed its written decision on April 27, 2007, and the formal judgment was filed on June 18, 2007.
On July 9, 2007, Brandi gave Richard notice that she was moving “back to my home state of Texas.” She stated she could not afford to live in California “as a single mother with two children.” She had to return to work and could not afford the cost of childcare on her limited earning capacity; furthermore, she had no transportation. Her “extensive family” was in Texas, and they would offer her emotional and financial support. “My family is willing to help us get back on our feet any way they can.”
Richard objected and filed an order to show cause. He declared that Brandi’s real reason for moving to Texas was to “further remove me from Audrey’s life.” He claimed Brandi was not really a single mother because she was engaged to be married. He stated he was willing to provide full-time childcare for both girls, “[b]etween my mother, who is an early child care [sic] specialist . . ., and re-hiring the nanny who cared for the girls for several months following Brandi’s move from our home . . . .” Richard complained that the time and expense of visiting Audrey in Texas was prohibitive.
Brandi filed a responsive declaration explaining that her welfare benefits had been terminated, she had no car, and she could not find state-subsidized childcare and employment within walking distance of her house. She claimed the cost of housing in Texas “is ½ to 1/3 of what it is in Southern California,” and insisted her reasons for moving were entirely financial and “not in any way based upon a desire to thwart [Richard’s] relationship with our daughter. I realize that the distance between California and Texas is great, but I am willing to cooperate with transportation for visitation [to maintain his timeshare].” Brandi stated Audrey and Abigail should be kept together.
Both Richard and Brandi testified at the hearing. Richard testified he would “do whatever it takes” to have Audrey stay in southern California. “I just don’t want my daughter three states away.” Brandi agreed it is in Audrey’s best interest to have “frequent and continuing contact with her father,” but she felt there was “time throughout the year to see [him].” Brandi explained, “I am not saying I don’t want her to see him. I am just saying I can support her better in Texas without having to be on welfare. I will have the support of my family as well which I do not here.”
The court granted Brandi’s request to move and denied Richard’s request to change custody. Richard requested a statement of decision, and the court directed Brandi to prepare it. It was signed and filed without objection on September 24, 2007. In the statement of decision, the court found that Richard had not shown Brandi was frustrating his visitation and that her intent in moving was not for that purpose. The court further found that Richard had not met his burden of showing the move would cause detriment to Audrey, “other than the fact that the move itself may cause a hindrance to their continuing bond by virtue of the distance between California and Texas. ‘A move cannot be denied simply because the move will cause some detriment to [the child’s] relationship with [the] noncustodial parent.’ Marriage of La Musga (2004) 32 Cal.4th 1072, at 1093.’” Because Richard had not met this burden, the court found it did not need to reevaluate the permanent custody order.
Notwithstanding, the court found it was in Audrey’s best interest to remain with Brandi as the custodial parent. The court stated Audrey had been primarily in the care of her mother since the parties separated 18 months before and noted it would be against the public policy of this state to separate Audrey from her sibling Abigail. It found the child’s need for continuity and stability outweighed the “potential hindrance of the move.”
DISCUSSION
On appeal, Richard contends the trial court found that detriment to his relationship with Audrey was not sufficient to support a change of custody as a matter of law. He argues this is not the correct legal standard when evaluating a change of custody based on a move-away request. Pointing to the trial court’s purported quote from In re Marriage of LaMusga (2004) 32 Cal.4th 1072 in the statement of decision, he claims the trial court misread the Supreme Court’s opinion and thus misunderstood the scope of its discretion. He argues the case must be reversed and remanded for the trial court to exercise its discretion under the correct legal standard. We find the record supports the trial court’s order; therefore, no abuse of discretion occurred.
A trial court’s overriding concern is the best interest of the child when making a custody determination. Once that determination is made, it will not be disturbed unless a change in circumstances requires a modification of custody to serve the child’s best interest. “‘[O]nce 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.’ [Citation.]” (In re Marriage of Burgess (1996) 13 Cal.4th 25, 38.)
The custodial parent of a minor child has a “presumptive right . . . to change the residence of the [child], so long as the removal would not be prejudicial to [his or her] rights or welfare.” (In re Marriage of Burgess, supra, 13 Cal.4th at p. 32.) Thus, when the noncustodial parent requests a change in custody in response to the custodial parent’s plans to relocate with the child, the trial court must determine whether the proposed relocation would have a negative impact significant enough to grant the request. A change of custody is justified “only if, as a result of relocation with [the custodial] parent, the child will suffer detriment rendering it ‘“essential or expedient for the welfare of the child that there be a change.”’” (Id. at p. 38.)
The Supreme Court clarified these principles in In re Marriage of LaMusga, supra, 32 Cal.4th 1072. In LaMusga, the trial court transferred custody of two minor children from the mother to the father after the mother announced she was moving out of state. The Court of Appeal reversed, holding that a custodial parent could not be prevented from changing the children’s residence if the move was in good faith, “unless the noncustodial parent makes a ‘substantial showing’ that a change of custody is ‘essential’ to prevent detriment to the children.” (Id. at p. 1078.)
The Supreme Court reversed the Court of Appeal, thus affirming the trial court’s ruling. It held, “[J]ust as a custodial parent does not have to establish that a planned move is ‘necessary,’ neither does the noncustodial parent have to establish that a change of custody is ‘essential’ to prevent detriment to the children from the planned move. Rather, the noncustodial parent bears the initial burden of showing that the proposed relocation of the children’s residence would cause detriment to the children, requiring a reevaluation of the children’s custody. The likely impact of the proposed move on the noncustodial parent’s relationship with the children is a relevant factor in determining whether the move would cause detriment to the children and, when considered in light of all of the relevant factors, may be sufficient to justify a change in custody. If the noncustodial parent makes such an initial showing of detriment, the court must perform the delicate and difficult task of determining whether a change in custody is in the best interests of the children.” (In re Marriage of LaMusga, supra, 32 Cal.4th at p. 1078.)
Richard contends he made an initial showing of detriment, but the trial court refused to reevaluate the existing custody order as required by LaMusga. Richard argues the trial court obviously misunderstood LaMusga because the statement of decision attributes the following nonexistent quote to LaMusga: “‘A move cannot be denied simply because the move will cause some detriment to [the child’s] relationship with [the] noncustodial parent.’ Marriage of La Musga (2004) 32 Cal.4th 1072, at 1093.”
Brandi, who prepared the statement of decision, argues the purported quote was cited “due to an error by the transcriptionist,” and claims it was meant to be a summarization of the following passage from LaMusga: “The Court of Appeal observed that, ‘if evidence of some detriment due to geographical separation were to mandate a change of custody, the primary custodial parent would never be able to relocate.’ We agree. We do not suggest that a showing that a proposed move will cause detriment to the relationship between the children and the noncustodial parent mandates a change in custody. But it is within the wide discretion of the superior court to order a change of custody based upon such detriment, if such a change is in the best interests of the children in light of all the relevant factors.” (In re Marriage of LaMusga, supra, 32 Cal.4th at p. 1095.) Brandi asserts that the mistaken quote came from trial counsel who prepared the statement of decision rather than from the trial court, “as evidenced by its absence in the court’s minute order . . . .”
Richard retorts the language of the statement of decision controls because it was presumptively prepared after further reflection and research; furthermore, it is not inconsistent with the trial court’s oral pronouncements. He claims because the statement of decision does not follow the correct law, it must be reversed. We disagree.
While the statement of decision reveals an incorrect quotation, we are not convinced it reveals a misstatement of the law. It is possible that detriment to a child’s relationship with a noncustodial parent can support a change of custody in the face of move-away request by the custodial parent. But to do so, that detriment must be so significant that it negatively affects the child’s best interests. Evidence of some detriment, without more, is not enough. The court must consider that detriment together with other factors: “the child’s interest in stability and continuity in the custodial arrangement; the distance of the move; the child’s age; the child’s relationship with both parents; the relationship between the parents, including, but not limited to, their ability to communicate and cooperate effectively and their willingness to put the child’s interest above their individual interests; the child’s wishes if the child is mature enough for such an inquiry to be appropriate; the reasons for the proposed move; and the extent to which the parents currently share custody.” (In re Marriage of Brown and Yana (2006) 37 Cal.4th 947, 961.)
Richard argues that the trial court specifically found Audrey would suffer some detriment from the “hindrance to their continuing bond by virtue of the distance between California and Texas,” but did not believe it could support a change of custody as a matter of law. What the trial court did, however, was to find that Richard had not made a sufficient prima facie showing of detriment to trigger a reexamination of the custody order as a matter of fact. This factual finding is supported by the record and would be sufficient on its own to support the trial court’s exercise of its discretion in denying a change of custody. But the trial court did not base its decision solely on the quantum of detriment to Audrey’s relationship with Richard. Notwithstanding its determination that it need not reexamine the custody order, it proceeded to do so. It considered several of the relevant factors in light of the evidence and decided that a change of custody would not be in Audrey’s best interests. “[A] reviewing court generally will leave it to the trial court to assess the detrimental impact of a proposed move in light of other relevant factors in determining what is in the best interest of the child.” (In re Marriage of Brown and Yana, supra, 37 Cal.4th at p. 961.)
DISPOSITION
The order granting Brandi’s request to move away and denying Richard’s request to change custody is affirmed. Brandi is entitled to costs on appeal.
WE CONCUR: ARONSON, J., IKOLA, J.