Appellate Court Upholds Trial Court’s Rejection of “[Independent] Custody Investigator” Opinion

From AW v. ICdecided Friday by the California Court of Appeal (in an opinion by Presiding Justice Frances Rothschild, joined by Justices Victoria Gerrard Chaney and Helen Bendix):

Father appeals the family court’s order granting Mother’s request that MW [their now-six-year-old child] move with her to Washington, DC Father argues the court reversibly erred when, in granting this request, the court “ignored” the opinion of a custody investigator that Mother was relocating to Washington, DC as a means of keeping MW away from Father. But the trial court was entitled to deem the contributor’s testimony not credible, and substantial evidence supports the court’s finding that Mother’s move was not in bad faith….

There’s a lot in the facts, as usual for child custody opinions, but the unusual feature was the trial court’s rejection of the “independent evaluator’s” opinion (which the Court of Appeal then upheld):

The court parties also heard from Linda Hayes, a licensed marriage and family therapist and licensed clinical social worker, whom the had stipulated would “conduct a private, solutions-focused evaluation, akin to a two-day private Parenting Plan Assessment.” Specifically, the parties agreed Hayes would evaluate “whether joint physical custody would be appropriate if the parties live in the same geographic area and if they do not, who should be awarded primary physical custody and what type of parenting plan would be in the best interest of the child.” … Hayes recommended MW remain in Los Angeles with Father. Hayes opined Mother had put her own need to reside in Washington, DC, over MW’s need “to love and experience both parents on a frequent and continuous basis.” Hayes viewed Mother’s decision to move to Washington, DC, as narcissistic and not guided by MW’s best interests….

Hayes repeatedly tested that Mother’s move to Washington, DC, was “premeditated,” and that her desire to take MW was an effort “for [Father] not to have access to the minor child.” She based this conclusion in part on statements by Mother’s friend, … who told Hayes that Mother had been planning for “multiple months, maybe six months” to leave California … [and] that Mother and Mother’s family “had been planning for many months about how Mother would take [M.W.] away from the father.”

Hayes was also a skeptical of Mother’s explanation that her move was motivated by difficulty finding work in Mother’s field in the Los Angeles area. Hayes based this skepticism in part on a call with the executive director of the UCLA department of public policy, who Hayes testified had indicated that the vast majority of graduates with Mother’s degree were employed. Hayes expressed concerns about Mother’s veracity and forthrightness in other respects as well. She Believe Mother had not been forthcoming with information that would allow Hayes to verify certain claims Mother had made about her new job. Hayes believed that Mother was trying to prevent Hayes from speaking to Mother’s supervisor because the call would contradict Mother’s previous statements.

Hayes expressed no such concerns about Father’s veracity or forthrightness. To the contrary, she appeared to accept Father’s explanation that his 2003 kidnapping conviction based on evidence of domestic violence in a previous relationship was a misunderstanding, not the result of criminal conduct. Specifically, Hayes found a “credible” Father’s explanation that he “was unfairly incarcerated based on the lies of the victim and because of the racist justice system,” citing as the reason for this belief Father’s explanation of the incident and Hayes’s phone interview with “the sheriff who got to know [Father] during [his time in] the prison, and … said Father does not fit the profile at all of somebody who would … perpetrate domestic violence.”

{By contrast, Hayes concluded that Mother’s filing a request for a restraining order against Father was “strategic” because it was based on alleged conduct in Connecticut, and Mother did not file the request until Father brought MW back to California.}

The trial court rejected Hayes’ views:

[T]he court noted that, although a custody evaluator’s assessment can be a “critical piece of evidence,” “Hayes demonstrated a lack of objectivity as to [Father’s] credibility,” citing specifically her assessment of his kidnapping conviction, in which Hayes suggested Father was innocent, despite her not having reviewed any materials from the criminal case.[d] the [c]ourt to question … Hayes'[s] objectivity in the evaluation and making her recommendations.”

The court further concluded that, although Hayes “seemed to place all the blame” on Mother with respect to the disruptive manner in which the parties separated and handled custody issues, “[the] [c]ourt [found] … that both parents in their emotional state did not put MW first in making decisions about where MW should stay.” The court then explained in detail its analysis of the relevant factors for a relocation request under In re Marriage of LaMusga (Cal. 2004), which the parties agree on appeal provides the applicable law, and concluded that granting the request on the terms noted above was in the best interest of MW….

The Court of Appeal is supposed to review the trial court judgment’s deferentially, especially “[t]o the extent the trial court’s ruling is based upon a factual determination, however, that ruling is subject to review for substantial evidence”; and it upheld the judgment under that standard:

Here, far from “ignor[ing]”Hayes’s assessment that Mother’s move was in bad faith, the court instead discussed it in detail and concluded it was not credible, choosing instead to believe Mother’s opposite testimony…. Mother’s testimony regarding the motive for her relocation is entirely consistent with the record as a whole, which supports that Mother had numerous good faith reasons to want to return to the east coast. …

Thus, that Hayes’s, or the interview statements on which she relied, contradict this evidence is not a basis for reversal. Put differently, Father’s contention that “there was evidence presented that a significant reason for this move was to reduce the minor child’s contact with [Father]” is irrelevant when reviewing for substantial plain evidence. We look instead to whether the record contains any reliable evidence that supports the court’s finding to the contrary. Itly does….

Father also argues that there is undisputed evidence supporting that Mother’s move to Washington, DC, was “premeditated” for many months, even years. But the fact that the move was something Mother had been considering for a long time does not establish bad faith or that Mother was using the relocation to keep the child away from Father. To the contrary, it is consistent with Mother’s testimony that the move was related to her ties to the area and a job opportunity, neither of which would materialize suddenly.

Father identifies no other basis on which we could conclude that the trial court abused its discretion in concluding that Mother’s relocation or the custody judgment more broadly was in the child’s best interests. {In his reply brief, Father appears to possibly be arguing that the trial court abused its discretion by ignoring other conclusions in Hayes’s testimony that, according to Father, would support a judgment in Father’s favor…. [But t]he record reflects the court did not ignore Hayes’s testimony, but rather gave it little credibility, a decision on which we must defer to the trial court.}

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