Brody v. Kroll

Opinion

RYLAARSDAM, J.

A mother with primary physical custody was granted permission to move the child away from the area of father’s residence. The trial court expressly refused to consider a change of custody to father, holding it was not properly before it. Father appealed. We conclude the issue of custody was properly pleaded, and was necessarily an issue to be decided in a hearing following notice of proposed change of residence under Family Code section 3024. We therefore reverse and remand.

Facts

After Michael was bom in 1988, his parents, who never married, entered into a shared custody arrangement. Subsequently, the court ordered joint

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legal custody with primary physical custody to mother. The order provided Michael “shall have frequent contact with each parent.”

Thereafter, the parents maintained a working coparenting relationship. Aside from more extensive periods during summer, the formal arrangement between the parents provided that Michael stay with father Tuesday and Friday nights and all day Saturday, except on those Saturdays when Michael attended Hebrew school. Actually, father saw Michael as frequently as four or five days a week.

Mother filed an order to show cause, seeking permission to leave the area with Michael. She had owned a business which had ceased operating, and she was unemployed and applying for public financial assistance. At the time of the hearing, she had accepted an offer of employment from a company in Connecticut and sought an order permitting her to move Michael there.

Father opposed the move and, in his response to mother’s order to show cause marked the box indicating custody was in issue. At the hearing, he requested custody of Michael.

The court granted the relief requested by mother and modified visitation arrangements to reflect the change in circumstances. The court stated that it could not consider father’s request for a change in custody because he had failed to file his own order to show cause. It ruled father had not raised the issue by merely marking a box, indicating custody was in issue, in the response to mother’s order to show cause.