Appeals Court Does Right By Military Dad In Custody Dispute

The Fourth Appellate District recently reversed a post judgment order and stated that a family court’s refusal to reinstate the custody arrangements ordered prior to one parent’s deployment to active duty in the military, based solely on the amount of time that had elapsed since the parent’s deployment, violated both the terms of the prior custody order and state law mandating a “fair, efficient, and expeditious process to resolve child custody … issues when a party receives temporary duty, deployment, or mobilization orders from the military.”

In 2006, father E.U. and mother J.E. obtained a family court order providing for E.U. to have primary physical custody of their six-year old son, S.U. The order stated that the minor was to attend school near his father’s home. The 2006 custody order anticipated that father or mother might at some time be called to active military duty. The order provided: “If military deployment should require either parent to leave California, the parent remaining in California should assume the role of primary parent, with a return to the established parenting plan upon the return of the [deployed] parent to California.”

In July 2009, E.U. was activated for military duty in Afghanistan. In September 2009, after E.U. had already transferred to quarters at Camp Pendleton, J.E. filed an ex parte application for sole legal and physical custody of the minor.

On September 24, 2009, in E.U.’s absence, and apparently without recognizing that the existing 2006 custody order already provided for the eventuality of E.U.’s military deployment, Judge Nancy Pollard found E.U. was deployed and issued a temporary custody order granting J.E. sole legal and physical custody of S.U. The court stated the order would “remain in effect until [E.U.] returns from his deployment …. At that time he may file an order to show cause to modify the custody ….”

E.U. returned from military deployment in July 2010. For the next 19 months, he attempted, without success, to regain custody of his son. Upon E.U.’s return, the case was reassigned to Judge Michael McCartin, who determined, notwithstanding the prior orders, that there could be no change in custody absent a determination of the minor’s best interest. The court ordered an Evid. Code §730 evaluation to be conducted by Dr. Miriam Galindo. 

In her report, completed in January 2012, Dr. Galindo concluded it was not in the minor’s best interest to revert back to the original custody arrangement. She recommended instead that he remain in J.E.’s primary care. She noted that the minor, now 11 years old and in middle school, was “doing relatively well under the current circumstances,” had been in J.E.’s primary custody and had attended the same school district for the past two years, and had an interest in the stability and continuity of the current custodial arrangement.

In February 2012, Judge McCartin ordered that S.U. remain in the primary custody of his mother. Noting the importance to the minor of continuity and stability, Judge McCartin ruled that the length of time S.U. had been in J.E.’s primary custody was significant to his best interests. The court of appeal reversed, holding that the family court erred, upon E.U.’s return, in refusing to enforce the reinstatement directive in the 2006 custody order.

In September 2009, the court found, when Judge Pollard issued the temporary custody order, Family Code §3047 provided in its entirety: “A party’s absence, relocation, or failure to comply with custody and visitation orders shall not, by itself, be sufficient to justify a modification of a custody or visitation order if the reason for the absence, relocation, or failure to comply is the party’s activation to military service and deployment out of state.”

In March 2011, when the family court first considered E.U.’s application for custody reversion, subdivision (b)(1) of an amended §3047 provided: “If a party with … physical custody … receives temporary duty, deployment, or mobilization orders from the military that require the party to move a substantial distance from his or her residence or otherwise has a material effect on the ability of the party to exercise custody … rights, a modification of the existing custody order shall be deemed a temporary custody order, which shall be subject to review and reconsideration upon the return of the party …. If the temporary order is reviewed upon return of the party …, there shall be a presumption that the custody order shall revert to the order that was in place before the modification, unless the court determines that it is not in the best interest of the child.”

Subdivision (e) further provided: “It is the intent of the Legislature that this §provide a fair, efficient, and expeditious process to resolve child custody … issues when a party receives temporary duty, deployment, or mobilization orders from the military.”

E.U. argued that the family court not only erred by failing to promptly enforce the 2006 reinstatement directive, which he characterized as “self-[e]xecuting,” but also violated §3047 by denying him an expeditious process, ordering a §730 evaluation, and then denying him “custody reversion due to lapse of time and continuity and stability of placement.” The court agreed.

The 2006 order’s reinstatement directive was still in effect when E.U. returned home. Further, the order was, by its terms, unconditional. However, the court indicated reluctance to consider a previously issued court order to be wholly self-executing as to future custody changes. In the court’s view, when a family court is called upon to enforce such an order, it should conduct a limited inquiry into the child’s best interests. In that manner, the reinstatement directive would be applied consistently with §3047, which creates a presumption that the custody order will revert and requires a “fair, efficient, and expeditious process” to make the determination. 

In conducting that limited inquiry, the court explained, the family court’s analysis of the child’s best interests should be restricted to the types of serious concerns suggested by the legislative history of the amendment to §3047. Thus, the reinstatement directive of the 2006 custody order should have been enforced unless J.E. made a prima facie showing of serious concerns such as (1) the child’s young age at the time of the service member’s deployment suggests that a transitional period may be needed to ease the child back into the original parenting arrangement, or (2) the service member suffers mental or physical health problems that impair his or her ability to parent.

No such concerns were present here, the court found. Nor did J.E. make any prima facie showing of minor’s best interests.

The family court should have returned primary physical custody to E.U. at that point. The family court erred by refusing to enforce the reinstatement directive pending the completion of the §730 evaluation and a subsequent evidentiary hearing.

Further, the court found, a review of Dr. Galindo’s report made clear that her recommendation against reversion to pre-deployment custody was based solely on the benefit minor would derive from continuity and stability — criteria which always favor the non-deployed parent and which further favored J.E. in this case due to numerous and erroneous delays ordered by the family court. If the benefit of continuity and stability, without more, were sufficient to overcome the statutory presumption, or, alternatively, were sufficient to modify the terms of the reinstatement directive, neither §3047 nor the directive would have meaning. Accordingly, even in light of Dr. Galindo’s report, the family court’s refusal to enforce the reinstatement directive was erroneous.

Posted in Child Custody

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