Changing Custody Must be in the Best Interests of the Child

Mother [M] and Father [F] married in in 2005, and divorced in 2007.  Their Son [S] was born in 2006.  Both M and F are highly educated.  M has a masters degree in education and is a special education teacher.  F has bachelor’s degree in physics and mathematics and was doctoral candidate in physics, although he never completed his doctoral studies.

In 2008, the family court issued an order of joint legal custody of S to both parents with primary physical custody to M.  F retained 31 percent of S’s physical custody, and was ordered to pay child support.  Later, in 2008, F was terminated from his job.  He has not been employed since then.  His lack of a job caused him to lose his home, and he has had to live with friends.  His visits with S were sporadic – not seeing S for months at a time.

In 2010, the court modified its child custody order.  Primary custody was to remain with M, and F was awarded visitation rights.  F was also ordered to pay child support.  In 2011, F moved to Arkansas.  He has resided there ever since with his parents in their home.  His parents are in their 80s.  F supports himself by entering sweepstakes games on line – as many as 700 times in a day.  He has earned over $7,000 in doing so.  He has no other income, and has e-mailed M that he will not get a job or give her any of his cash.

In 2012, the child support order was sent to the Arkansas court system under the Uniform Interstate Family Support Act, in anticipation of going to trial on the support order.

In 2015, the Arkansas court tried to register the California court’s order, but was unable to do so due to clerical errors made by the California court.  In 2017, F went back to the California court requesting the court correct the clerical errors regarding his child support order.  He did not request any other modification order.  At the hearing, M requested a change of F’s percentage of custody of S, because F had not visited with S in four years.  (Decreasing F’s percentage of custody, increases the amount of child support he would owe.)  In response to M’s request, F filed his request to change S’s custody to him and live with F in Arkansas.  The trial court found for F because the judge noted S had bonded with F and M was less likely to share custody with F than F was to share custody with M.  (The court noted that not paying child support was not relevant to determine child custody.)  M appealed, and the Appellate Court agreed with M.

“It is settled law that ordering a change in custody requires a persuasive showing of changed circumstances affecting the child…  Such a change must be substantial.  A trial court shall not remove a child from the prior custody of one parent and give custody to the other unless there are material facts and circumstances occurring after the prior custody order that …are of a kind to render it essential or expedient for the welfare of the child that there be a change…The reasons for the rule are clear: ‘It is well established that the courts are reluctant to order a change of custody and will not do so except for imperative reasons; that it is desirable that there be an end of litigation and undesirable to change the child’s established mode of living.’”

 “…The record on appeal shows that, since the most recent custody order in July 2010, there have been changed circumstances affecting the child.  F moved to Arkansas in 2011 and began living with his parents.  But F has not established that this change alone constitutes a material fact or circumstance of a kind to render it essential or expedient for the welfare of S to change his physical custody.  F must not only show substantial changed circumstances but also must show that changing S’s physical custody would not detrimentally affect S’s interest in continuity and stability, and that relocating S is in his best interest…”

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