Change In Co-Parenting Residential Arrangement May Not be a Change in Child Custody

The parties shared joint legal child custody of their three daughters. The child custody arrangement allowed the daughters to live with mother during the week and spend weekends and Wednesday afternoons with father. After moving to a different area of the county, the mother’s divorce lawyer filed a motion to modify the existing child custody order to obtain sole child custody. In response the father’s divorce lawyer moved for sole child custody. The father was awarded physical custody for three out of four weeks during the school year, and mother was to receive the same in the summer. Mother’s divorce lawyer appealed.

Mother’s divorce lawyer argued there was no material change in circumstances that would be sufficient to justify a change in child custody. However, the divorce court found that the arrangement modification did not constitute a change in child custody because joint legal and physical child custody remained the same. Instead, the divorce court stated there was a change in the “co-parenting residential arrangement.” The divorce court rearranged the “residential timetable” and did not alter the joint custody order, thus the father’s divorce lawyer did not have to show a change in circumstances because there was no change in custody. The Court of Appeal emphasized that where parents with joint child custody decide to call upon the courts to act as a “super-parent” and modify residential arrangements, the court possesses the broadest discretion to adjust co-parenting residential arrangements. Further, the court will not reverse a changed joint child custody residential arrangement unless the divorce court has abused its discretion by exceeding the bound of reason in rendering its decision. The Court of Appeal agreed with the position of the father’s divorce lawyer and the modification of the co-parenting residential agreement was upheld because it was not a change in custody, and the new arrangement was permitted.

In re Marriage of Birnbaum (1989) 211 Cal. App 3d 1508