Brown v. Campos

Opinion

YEGAN, J. David Campos (husband) filed an order to show cause for modification of the child custody and visitation order relating to his sons, ages 15 and 12, after their mother, Linda Brown (wife), announced she would move with the children from their home town of Santa Barbara to Moorpark, two hours away. The trial court denied the order to show cause without an evidentiary hearing, finding that wife did not have a bad faith reason for the move. Husband contends on appeal that he was entitled to an evidentiary hearing on the question whether the move would be so detrimental to the children that a change in the custody arrangement was essential for their welfare. We agree. Accordingly, we reverse the trial court’s order of August 23, 2002, and remand the matter for an evidentiary hearing on husband’s order to show cause.

Facts and Procedural History

Husband and wife were married for 17 years 3 months, and have two minor sons, ages 15 and 12. The judgment of dissolution awarded them joint legal custody of the minor children. Wife had sole physical custody of the children, and husband was granted visitation on alternate weekends, for three hours every Monday and Wednesday evening, and for three weeks each summer. Until the summer of 2002, the parties and their children lived in Santa Barbara. In August 2002, wife announced her intention to move with the children and her second husband to Moorpark, two hours away. Husband sought to modify the custody and visitation judgment to grant him physical custody of the children, so that they could remain in Santa Barbara. He argued that the boys did not want to move because they would have to leave behind their extended family and their life-long friends and classmates. The [842]older son was starting high school that fall, while the younger son was moving to junior high school. Both boys preferred to start their new schools with their old friends, rather than with strangers.

The trial court appointed counsel for the children. At the hearing on husband’s motion, the children’s counsel reported that they were concerned about losing contact with wife’s extended family and with their friends and classmates. The children apparently told a psychologist retained by their attorney that they did not want to move; they did not make the same statement to their attorney.

The trial court denied husband’s request for an evidentiary hearing at which the children would testify. After oral argument by counsel, the trial court declined to modify the custody and visitation arrangement, reasoning: “Well, I think that the law is clear. Burgess is the law. And Burgess requires nothing further than a look into whether there’s an allegation of bad faith in the move. And there apparently is none at this time, [f] It is disruptive for the children, but not as much, perhaps, as the failure of the marriage was for these children. That was probably the most disruptive thing in their lives up to this point in time, anyway. [|] The changing schools, at this particular time, the Court does not feel is that prejudicial for the children’s welfare at all. It’s simply a matter of readjustment. They’re still with their family, the family that they know. [|] The father will of course have the rights of visitation that he’s always had. We might have to look into that or have a mediation to determine how that can be improved upon. He certainly will have contact with their family here in Santa Barbara. No doubt about that, [f] And I think the Court really doesn’t have to look much beyond Burgess. And so the Court will permit the mother to transfer the children to Moorpark.”