The Orange County Family Law Firm

Hire the Firm Lawyers Hire

A Divorce Court May Not Base A Child Custody Order on the Relative Economic Circumstances of the Parties

Ana and William had a son. William, the father denied paternity after the son was born and Ana brought a paternity and child support action. A family law court-ordered blood test proved that William was the father, and he stipulated to pay $200 per month for child support. Ana’s family law lawyer filed a petition for exclusive child custody and William retained a family law lawyer who sought the same. Ana’s family law lawyer argued that William must first show a change in circumstances before the court can order a change in child custody to William.

William argued that the family law court need only determine what is in the best interests of the child and not that there was a change in circumstances. The family law court awarded William, the father, child custody based on his superior economic status (being more financially stable and owning his own home), and the fact that his new wife would be able to care for the child.

The Supreme Court determined there is no burden to show a change in circumstances when there has not been a prior final child custody order. Under the change of circumstances rule, once there is a final child custody order, a family law court will not modify the child custody order unless there has been a change of circumstances that would render it expedient or essential to the child’s welfare. The court found that there had been no prior child custody determination or pre-existing circumstances to which to compare new “changed” circumstances at the time of trial. Because there was no final child custody order, a family law court must look to all the circumstances to determine the best interests of the child in deciding the child custody arrangement. Thus, the change in circumstances rule does not apply if no previous determination of parents’ circumstances has been made.

Also, the Supreme Court ruled the family law court abused its discretion by awarding child custody to William based on the relative economic position of the parties and the assumption that child care by a single, working mother is inferior. The family law court awarded William child custody because he was more financially stable than Ana and his new wife would be able to care for the child, while Ana worked as a single mother and required child care. The Court stated it is impermissible to award child custody on such a basis. Further, the Supreme Court noted the importance of considering continuity and stability in determining a child custody arrangement. The Court ruled that a parent, who has not been the caretaker of the child, bears the burden of persuading the family law court that a change in child custody is in the child’s best interests because of the potential harm that could result from disrupting emotional bonds. Thus, the family law court order granting William child custody was reversed.

Burchard v. Garay (1986) 42 Cal. 3d 531