Petitioner Keith R. (Father) and real party in interest H.R. (Mother) were married in mid-2004. B.R. (Daughter) was born in the fall of 2005. After Father filed for divorce in September 2006, Mother asserted domestic violence allegations against Father, and requested sole custody of Daughter. Following an investigation and a hearing, the court denied Mother’s requests. In February 2007, the court entered an order granting both parents joint legal and physical custody, and appointed a child custody evaluator, who recommended maintaining the current custody arrangements based on Daughter’s parental attachments.
In early 2008, Mother sought a temporary restraining order against Father, citing new allegations that he had stalked and was spying on her, and was seen by a police officer parked outside Mother’s apartment complex late at night. On May 21, 2008, following several hearings on the domestic violence allegations, the court issued a domestic violence order against Father for “harassment and stalking.” The court ordered Father to have no contact with Mother directly or indirectly, other than through counsel, and directed that Mother have sole legal and physical custody of Daughter. Father was required to participate in a 52-week batterer’s intervention program, and was restricted to four hours monitored visitation per month, pending further court order.
On January 27, 2009, the court issued a move-away order permitting Mother to move away with Daughter to Arizona, where the maternal grandmother lived. Father was given unmonitored visitation on alternate weekends. The court, citing In re Marriage of Burgess (1996) 13 Cal.4th 25 (Burgess), determined that Father had failed to show changed circumstances. As the court earlier observed, “the burden lies with [Father] to show that . . . there is a detriment to the child. Not that it’s in her best interest but that there is a detriment to the child.”
Father appealed, and the Court of Appeal reversed the trial court.
When there are competing parental claims to custody, the family court must conduct an adversarial proceeding and ultimately make an award that is in “the best interest of the child.” (§ 3040. subd. (b).) The purpose is to maximize the child’s opportunity to develop into a stable, well adjusted adult. The child’s welfare is paramount and the “overarching concern.” (Montenegro, supra, 26 Cal.4th at p. 255.) Relevant factors include the child’s health, safety and welfare, the nature and contact with the parents, and any history of abuse by one parent against the child or other parent. (§ 3011.) And the so-called “friendly parent” provision requires the court to consider “which parent is more likely to allow the child frequent and continuing contact with the noncustodial parent . . . .” (§ 3040, subd. (a)(1).)
Once there has been a final judicial determination regarding the best interest of a child, the dual goals of judicial economy and protecting stable custody arrangement preclude a de novo examination. (Burchard v. Garay (1986) 42 Cal.3d 531, 535 (Burchard).) This rule is based on principles of res judicata. (Ibid.) A party seeking to modify a final custody order must show a significant change of circumstances, such as to indicate that a different custody arrangement would be in the child’s best interest. (Burgess, supra, 13 Cal.4th at p. 38.) And, where sole legal and physical custody has been awarded to one parent after a contested custody dispute, the noncustodial parent is not necessarily entitled to an evidentiary hearing. (In re Marriage of Brown & Yanna (2006) 37 Cal.4th 947, 956.)
These principles do not apply to interim custody orders, which are not intended to be final judgments as to custody. “The best interest analysis is used when making a permanent custody determination initially.” (Ragghanti v. Reyes (2004) 123 Cal.App.4th 989, 996 (Ragghanti).) In such situations, the family court must look to all of the circumstances bearing on the best interests of the minor child before devising a parenting plan. (Burgess, supra, 13 Cal.4th at pp. 31-32; see also In re Marriage of LaMusga (2004) 32 Cal.4th 1072, 1089-1092 (LaMusga); Montenegro, supra, 26 Cal.4th at p. 258.)
The family court based its move-away order upon the fact that Mother had “sole legal and sole physical custody” of Daughter because of a presumption arising from the domestic violence order. As a result, the court, applying the changed circumstances standard, held that Father had failed to prove that a move-away would pose a significant detriment to Daughter. The court made no determinations regarding Daughter’s best interest.
The court used the wrong legal standard to resolve Mother’s relocation request. The changed circumstances rule articulated in Burchard and Burgess does not apply because there has not yet been a final judicial custody determination. Neither the May 21, 2008 nor January 27, 2009 orders constitute such a final order. “Child custody proceedings usually involve fluid factual circumstances, which often result in disputes that must be resolved before any final resolution can be reached.” (Montenegro, supra, 26 Cal.4th at p. 258 [holding that court custody orders do not constitute final judicial custody determination].) At most, there is only an interim custody order which was entered following the domestic violence finding, and which has since been substantially modified. (Id. at p. 259; Ragghanti, supra, 123 Cal.App.4th 989 [applying best interest analysis in move-away case despite mother’s evidence that child primarily lived with her and would suffer no detriment in any relocation]; In re Marriage of Richardson (2002) 102 Cal.App.4th 941 [applying best interest test in move-away case where parties only stipulated to an initial custody order].)
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