County of San Diego v. Mark W. CA4/1

California Court of Appeal · D061225 · 2013-06-26 · Unpublished

Proceeding: appeal from an order
Trial court: Superior Court of San Diego County · No. DF192808
Trial judge: Darlene A. White (commissioner)
Outcome: affirmed — Affirmed.
Area: family
Panel: McINTYRE (author), O'Rourke, Cynthia Aaron

Analysis

A model's reading — qwen3.8-27b, prompt v1, 2026-10-13T02:57Z · confidence high

The trial court modified a final custody order to transfer primary physical custody from the mother to the father, finding a substantial change in circumstances based on the children's behavioral deterioration. The Court of Appeal affirmed the order, concluding the trial court did not abuse its discretion in determining the modification was in the children's best interests.

Ruling reviewed	Standard	The court	The model
Modification of physical custody from mother to father “We conclude the family court did not abuse its discretion by ordering the change of physical custody.”	abuse of discretion	correct	agree with court agree with court

Authorities

relied: In re Marriage of Burgess (1996) 13 Cal.4th 25 — Establishes the standard for modifying custody orders, requiring a substantial change in circumstances and review under an abuse of discretion standard.
relied: Montenegro v. Diaz (2001) 26 Cal.4th 249 — Distinguishes between temporary and permanent custody orders, noting a greater showing is required to modify permanent orders.
relied: In re Marriage of McLoren (1988) 202 Cal.App.3d 108 — Defines the moving party's twofold burden of showing changed circumstances and that modification is in the child's best interests.
relied: In re Marriage of Candiotti (1995) 34 Cal.App.4th 718 — Cited for the proposition that parents should not pursue animosity toward each other to the detriment of their children.

The appellate opinion: sound — The opinion correctly applies the abuse of discretion standard and the substantial change in circumstances requirement for modifying final custody orders. It properly notes that the trial court relied on the children's behavioral issues rather than the unsupported abuse allegations, making the decision supported by the record.

How this analysis was made · dispute it

unusual disposition

A model's reading — claude-fable-5-1, prompt v1, 2026-10-13T04:31Z · confidence low

The family court, after a January 2012 hearing, found a substantial change in circumstances based on R.'s declining academics and behavior and modified a final Montenegro custody order so the twins would live with Mark during the school week and with Suzanne on weekends. On Suzanne's pro se appeal, the Court of Appeal reviewed for abuse of discretion, held the declarations of Mark and minors' counsel supported both the changed-circumstances finding and the best-interests determination, and affirmed.

Ruling reviewed	Standard	The court	The model
Order modifying final (Montenegro) custody order to transfer weekday physical custody from Suzanne to Mark based on a finding of substantial changed circumstances and detriment to the children “We conclude the family court did not abuse its discretion by ordering the change of physical custody.”	abuse of discretion	correct	agree with court The court correctly identified the governing framework: a final custody order may be modified only on a showing of a substantial change in circumstances making modification essential to the child's welfare (Burgess, Montenegro), with the moving party bearing the twofold burden of showing changed circumstances and best interests (McLoren), reviewed for abuse of discretion. Evidence that R.'s school behavior had markedly worsened since the prior order, with repeated suspensions and a risk of expulsion, corroborated by independent minors' counsel who recommended the swap, is a change post-dating the September 2011 order and bears on the children's welfare. The court properly noted that the family court made no finding on the abuse allegations, so Suzanne's attack on those allegations did not undermine the order. The reasoning is thin on why the behavioral decline is causally linked to Suzanne's weekday custody such that a swap was 'essential'—minors' counsel said neither parent's explanation was plausible standing alone—but under the deferential standard the result is defensible and I cannot identify a specific legal error.

Authorities

relied: Montenegro v. Diaz (2001) 26 Cal.4th 249 — The changed-circumstances rule applies to final judicial custody determinations; a greater showing is needed to modify a permanent custody order than a temporary one.
relied: In re Marriage of Burgess (1996) 13 Cal.4th 25 — Existing custody arrangements may be changed only upon a substantial change in circumstances making modification essential to the child's welfare; custody modifications are reviewed for abuse of discretion, with focus on the child's health, safety and welfare.
relied: In re Marriage of McLoren (1988) 202 Cal.App.3d 108 — The party seeking modification bears the twofold burden of showing how circumstances have changed and why the modification serves the child's best interests; the standard applies to changes in legal or physical custody.

The appellate opinion: sound with gaps — The opinion states the correct Burgess/Montenegro framework, applies the deferential abuse-of-discretion standard, and answers the appellant's sole argument by pointing to evidence of R.'s post-order behavioral decline and the independent recommendation of minors' counsel. It does not, however, explain why that decline was attributable to the existing custody arrangement or why swapping weekday custody was 'essential' to the children's welfare given the heightened showing required for a final order, leaving the causal link largely unexamined.

How this analysis was made · dispute it

Opinion

Filed 6/26/13 County of San Diego v. Mark W. CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

COUNTY OF SAN DIEGO, D061225

Plaintiff, v. (Super. Ct. No. DF192808)

MARK W., Defendant and Respondent;

SUZANNE G., Objector and Appellant.

APPEAL from an order of the Superior Court of San Diego County, Darlene A. White, Commissioner. Affirmed.

Suzanne G., in pro. per., for Objector and Appellant.

No appearance for Defendant and Respondent.

Mark W. and Suzanne G. are the parents of twin sons, R. and M. (born 2005).

After their birth, the County of San Diego filed this action to require Mark to pay child support for the children. Eventually, the family court entered a final custody order, placing the children with Suzanne during the week. Suzanne appeals an order changing physical custody of the children from her custody during the week, to Mark's custody.

Suzanne claims Mark did not prove a substantial change of circumstances. We disagree and affirm the order.

FACTUAL AND PROCEDURAL BACKGROUND

In September 2011, the family court ordered that Mark and Suzanne share legal custody of the children. The court ordered that during the school year, the children reside with Suzanne during the week and with Mark on the weekends. The family court stated that its orders were a final adjudication of custody and visitation under Montenegro v. Diaz (2001) 26 Cal.4th 249 (Montenegro).

In November 2011, Mark filed an ex parte application seeking immediate removal of the children from Suzanne. The family court set the matter for hearing and reappointed William M. Benjamin as counsel for the children. The family court ultimately heard the matter in January 2012. As relevant to this appeal, the family court found a "substantial change in circumstances" that warranted a change in the prior "Montenegro order." Specifically, the court noted that R. "has been spiraling downward both in academics and in behavior such that it would be detrimental to both children not to make the modifications set forth herein." The court switched custody, so that Mark would have the children during the week and Suzanne would have the children on the weekends. Based on this swap, the children were to be enrolled in a school where Mark resided. Suzanne timely appealed.

2 DISCUSSION

Suzanne asserts the trial court erred in changing physical custody because Mark did not prove a substantial change of circumstances. We disagree.

Child custody orders are modifiable whenever the court finds a change is "necessary or proper" in the child's best interests. (Fam. Code, §§ 3022, 3088, undesignated statutory references are to the Family Code.) Courts must look at all circumstances bearing on the child's best interests, with the primary focus on the child's health, safety and welfare. (§ 3020; In re Marriage of Burgess (1996) 13 Cal.4th 25, 31– 32 (Burgess).) There is no preference or presumption in favor of any particular arrangement for custody or visitation. (§ 3040, subd. (c).)

Custody arrangements under an existing order can only be changed upon a showing of a substantial change in circumstances so affecting the child that modification is essential to the child's welfare. (Burgess, supra, 13 Cal.4th at p. 37.) Absent such a showing, any modification constitutes an abuse of discretion. (Ibid.) The moving party has the twofold burden of showing how circumstances have changed and why the custody modification would be in the child's best interests. (In re Marriage of McLoren (1988) 202 Cal.App.3d 108, 111–112, 114 [standard applies to requests to change legal or physical custody].) We review a decision modifying custody under an abuse of discretion standard. (Burgess, supra, 13 Cal.4th at p. 32.) A greater showing is required to modify a permanent custody order than is required to modify a temporary custody order. (Montenegro, supra, 26 Cal.4th at pp. 256–257.)

3 In support of his request to change physical custody of the children, Mark filed a declaration generally stating that R.'s behavior while at school has deteriorated causing R.

to be suspended a number of times. He claimed that the children needed to be removed from Suzanne because she mentally abused and physically harmed them. Counsel for the children filed a declaration stating that the children expressed no fear as to either parent and he observed no discomfort between the children and Suzanne. He spoke to the principal at the children's school and learned that while "[R.] had some behavior issues last year, they were not as pronounced as they are this year." Among other things, R.

behaves aggressively, hides from the staff, yells and hits other children. Counsel believed that "[n]either parent's explanation for R.'s sudden spiking of behavior issues seem[ed] plausible, standing alone." He noted that R.'s behavior would likely not be tolerated at R.'s school for many more days. Counsel made a number of recommendations to the court, including reversing the current parenting plan so that the children would reside with Mark during the school week.

This evidence supported the family court's order as it revealed that the circumstances have changed and that the custody modification was in the best interests of the children. Suzanne complains that Mark's sole basis for seeking a change in physical custody was her alleged abuse of the children, but that the evidence did not support Mark's allegations. Significantly, the family court made no finding on Mark's abuse allegations. Rather, after considering all the evidence, the court used a best interests analysis to conclude "it would be detrimental to both children not to make the 4 modifications set forth herein." We conclude the family court did not abuse its discretion by ordering the change of physical custody.

As an aside, we feel compelled to note the comment of minor's counsel that "[t]he level of hostility between the parents has increased, not subsided, and both boys have clearly been exposed to same." Thus, it appears this case, as with tragically too many others, involves "parents [who] pursue their animosity toward each other to the detriment of their children." (In re Marriage of Candiotti (1995) 34 Cal.App.4th 718, 722.) We urge the parents to set aside their differences for the benefit of the children.

DISPOSITION

The order is affirmed.

MCINTYRE, Acting P. J.

WE CONCUR:

O'ROURKE, J.

AARON, J.

Cites, in this corpus

Montenegro v. Diaz S090699 · 2001-07-30
In Re Marriage of Burgess S046116 · 1996-04-15
In Re Marriage of Candiotti A065411 · 1995-04-27
In RE THE MARRIAGE OF McLOREN B025870 · 1988-06-15