In Re Marriage of Schwartz

Opinion

KAUS, P. J.

Petitioner Joe L. Schwartz appeals from an order of the superior court modifying a joint custody agreement entered into between himself and his former wife, Deborah L. Schwartz.

Deborah and Joe were married in October 1964. Their union produced two children—a boy, Shannon, and a girl, Sonja. Thirteen years later, in 1977, the court granted Joe an interlocutory judgment of dissolution, which, among other things, provided that custody of the children be awarded jointly to Joe and Deborah. It further declared that “[t]he children shall spend the remainder of the school year 1976-1977 and the school year of 1977-1978 residing with [Deborah], The parent with

[94]

whom the children are not residing at any given time shall have visitation rights for all weekends and school holidays. Children shall not reside with [Joe] for school year unless he has a live-in housekeeper or a spouse. Children shall continue to reside with [Deborah] for school year periods unless they request to reside with [Joe] and [Joe] has the aforementioned housekeeper or spouse. Each party agrees to take the children to reside with him/her if the other parent remarries and is unwilling/unable to have children reside with him/her.”

During the summer of 1978, both the children resided with Joe, in California, as per the custody agreement. When vacation came to a close, Sonja chose to return to her mother in Texas, while Shannon expressed a desire to remain in his father’s household. The children’s wishes were respected; Shannon was enrolled in school in California while Sonja returned to her mother in Texas.

On November 13, 1978, well after the children were into the school year, Deborah filed an order to show cause re: modification, by which she sought termination of the joint custody arrangement and a concomitant award of sole custody in her favor. In response, Joe sought a ruling permitting his son—then age 10—to reside, with him during the school year. The actions were heard on December 11, 1978; the court ordered modification in accordance with Deborah’s wishes. This appeal ensued.

At trial, Joe introduced evidence of and testified to the fact that he had remarried and that he desired Shannon to reside with him during the school year. He also produced an affidavit setting forth Shannon’s desire to remain under his custody and control. Deborah, on the other hand, sought to prove that, though single, she too held out an adequate home for the children; she sought physical custody of both children despite Shannon’s wishes to remain with his father.