1. 11/15/21, In my studies this morning I got to thinking about whether Child Custody Evaluations bring back pre 1970s where "fault" for the divorce was often determinative of custody decisions.
To investigate the issue I thought I'd read and record the law beginning with the history of the law on the "best interests of the child" standard using a practice guide I subscribe to -- CEB's Child Custody Litigation:
https://www.dropbox.com/s/d68k7or1aas8xrx/1%2C%20Best%20Interests%20of%20Child%2C%20History.mp4?dl=0
2. 11/21/21, In my studies this evening I pick up where I left off last Sunday. This evening we'll start with the court's broad discretion:
The Change of Circumstances Rule
However, the changed circumstances rule does not apply unless there has been a final or permanent custody order (Montenegro v. Diaz (2001) 26 Cal.4th 249, 256), such as where a custody determination has been made after a contested evidentiary hearing on the merits. (See Elkins v. Superior Court (2007) 41 Cal.4th 1337, 1360.) Where there was only a temporary pretrial order, or where the order was a stipulated custody order that was not intended as a final or permanent custody determination, the rule is not triggered. (Montenegro v. Diaz, supra, 26 Cal.4th at p. 258; see, e.g., In re Marriage of Lewin (1986) 186 Cal.App.3d 1482, 1487-1488.)
Recently in Burchard v. Garay (1986) 42 Cal.3d 531 [ 229 Cal.Rptr. 800, 724 P.2d 486], our Supreme Court clarified the change of circumstance rule enunciated in Carney.(3a) The Burchard court explained the rule "requires that one identify a prior custody decision based upon circumstances then existing which rendered that decision in the best interest of the child. The court can then inquire whether alleged new circumstances represent a significant change from preexisting circumstances, requiring a reevaluation of the child's custody." ( Id., at p. 534.)
In re Marriage of Lewin (1986) 186 Cal.App.3d 1482, 1487
“"[h]ere there is no prior determination; no preexisting circumstances to be compared to new circumstances. The trial court has no alternative but to look at all the circumstances bearing upon the best interests of the child." ( Id., at p. 534.)” In re Marriage of Lewin (1986) 186 Cal.App.3d 1482, 1487
Burchard did not overrule Carney; it clarified the decision. A showing of changed circumstances is unnecessary when there has been no prior final custody determination. Carney did not require "use of a changed-circumstance test in cases where there has been no prior custody determination, but . . . affirm[ed] the importance of stability in custody arrangements, placing the burden upon the person seeking to alter a long-established arrangement." ( Id., at p. 537.)
In re Marriage of Lewin (1986) 186 Cal.App.3d 1482, 1488
But "interfere" is an ordinary English word. It is used in statutes defining contempt of court. Thus, for example, Code of Civil Procedure section 1209, subdivision (a)(8) provides, "Any other unlawful interference with the process or proceedings of a court" constitutes contempt. Welfare and Institutions Code section 213 provides, in part, "Any willful . . . interference with any lawful order of the juvenile court . . . constitutes a contempt of court." Wife fails to cite a single instance in which "interfere" has been held to be ambiguous.
In re Marriage of Hartmann (2010) 185 Cal.App.4th 1247, 1250
In this section what I found in my studies tonight involved: 1. Interfering with the other parent's custody is a substantial factor in determining the best interests of the child(ren); 2. The change in circumstance rule should requires either a prior determination or and intent that the order one seeks to modify was to be permanent and as in the best interests of the child(ren).
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