In re the Marriage of Condon (Cal.App. 2 Dist 7 Div 1998)— Cal.App.4th —
2 International Abduction [USA 1998]
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Filed 3/23/98
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
In re the Marriage of CHRISTOPHER and DEBORAH COOPER CONDON.
B103574
CHRISTOPHER CONDON, (Super. Ct. No. BD168281)
Appellant,
v.
DEBORAH ANN COOPER,
Respondent.
APPEAL from a judgment of the Superior Court of Los Angeles
County. Robert A. Schnider, Temporary Judge. (Pursuant to Cal.
Const., art VI, 21.)
Affirmed in part, reversed in part, and remanded with
directions.
Christopher Condon, in propria persona, for Appellant.
Patrick DeCarolis, Jr., for Respondent.
001 This case tests the very outer limits of a legal principle
the California Supreme Court first announced in 1996. That
principle allows a spouse with primary physical custody of a
child to move away unless the other spouse can demonstrate the
move would be against the best interests of the child. (In re
Marriage of Burgess (1996) 13 Cal.4th 25.) In Burgess, the
approved move was forty miles-from Tehachapi to Lancaster and
all within the state of California. Here, respondent argues
Burgess applies to justify a move-away of some eight thousand
miles-from this state and nation to another, and from this
continent on one side of the Pacific Ocean to another continent
on the other side of that vast body of water.
002 With some reluctance we conclude this court should not
interfere at this late date with the trial court’s carefully
constructed order allowing this relocation of mother and
children. However, we find the order is not guaranteed
enforceability in the Australian courts in its present form and
remand for the trial court to obtain an enforceable concession
of jurisdiction from respondent wife, a concession that party
has volunteered to make. We also express our concerns about
relocation orders of this dimension, even as we recognize they
may be more frequently requested in future years as we move
toward a global community.
FACTS AND PROCEEDINGS BELOW
003 Appellant, Christopher Condon, and respondent, Deborah Ann
Cooper, were married on September 26, 1988, in Australia. Ms.
Cooper is a native of Australia and Mr. Condon is an American
citizen. Both of their sons, Bayard, born on February 5, 1989,
and Henry, born in September 3, 1991, were born in Australia.
But the family resided for several years in Los Angeles and the
dissolution and child custody proceedings were decided in the
California courts.
004 Ms. Cooper alleges numerous incidents of physical abuse
throughout the marriage. Mr. Condon acknowledges he was
arrested in November 1989, after pulling down Ms. Cooper’s pants
and spanking her following an argument. He was released with no
charges filed. He testified he never struck or slapped his wife
again after this incident. The trial court thought Ms. Cooper
exaggerated the level of violence perpetrated by Mr. Condon
against her, though the court believed there had been more than
two occasions of physical violence against Ms. Cooper.
005 On or about July 8, 1993, Ms. Cooper, with the agreement of
Mr. Condon, departed for France with the children for two
months. During her time in France, Ms. Cooper purchased a home
(possibly with a monetary contribution from Mr. Condon) and
enrolled Bayard in school. The circumstances under which Ms.
Cooper extended her stay in France and Mr. Cooper delayed his
arrival are unclear. Mr. Cooper arrived in France in late
October and stayed through New Year’s 1994. Ms. Cooper was in
France for a total of seven months, and returned with the
children to Los Angeles in February with the understanding she
could return to France in the Summer of 1994, as long as she
helped finance the trip.
006 On the morning of June 28, 1994, an altercation took place
between Mr. Condon and Ms. Cooper. The parties dispute what
exactly happened, but it included Mr. Condon knocking Ms.
Cooper’s hands down, and his pulling the phone out of the wall.
Ms. Cooper claims her hands were up in a defensive posture,
while Mr. Condon claims she had raised her fists to him. He
also claims she struck him with a cast-iron frying pan. A
building security guard called the police and after speaking to
them, Mr. Condon agreed to leave for a few days. Later that
evening, Mr. Condon returned to the apartment to shower and
change clothes. He assisted with the laundry, putting the
children to bed, and slept in the children’s room.
007 The next morning Mr. Condon took keys from Ms. Cooper’s
possession and went to his office. Ms. Cooper later went to his
office and demanded the return of her office keys. When Mr.
Condon refused, Ms. Cooper opened his desk drawer, took the
family’s passports (including Mr. Condon’s) and a checkbook, and
left. Later that same day, Ms. Cooper went to Mr. Condon’s
office accompanied by a police officer and secured the return of
her keys. She then withdrew all the money in their joint
checking account ($2,000), packed her and the children’s
belongings, and left their apartment for good. She purchased
tickets to Australia and flew there with the children, arriving
on July 5, 1994. Though Ms. Cooper was in contact with Mr.
Condon’s solicitor in Australia, Mr. Condon had no contact with
his children for at least four months.
008 Unaware of his family’s whereabouts, Mr. Condon petitioned
for legal separation on July 5, 1994, in Los Angeles Superior
Court. At the same time he secured a temporary restraining
order restraining Ms. Cooper from removing the children from
Southern California, and filed an order to show cause seeking
sole legal and physical custody of the children, with visitation
of the children for Ms. Cooper.
008 Simultaneous with Mr. Condon’s filings in California, Ms.
Cooper sought to initiate divorce proceedings and secure a
protection order from the Australian court. She later dismissed
the matrimonial proceeding. She repeatedly refused to provide
information concerning the children’s whereabouts to Mr.
Condon’s Australian counsel, and rejected all indirect methods
of contact. Her parents even took out protection orders against
Mr. Condon, which effectively denied his solicitor the ability
to contact them to find the children. FN1
009 Mr. Condon’s counsel proceeded to exchange letters with Ms.
Cooper’s various counsel, and finally via fax with Ms. Cooper
herself, seeking to mediate a resolution to the parties’
conflict. Mr. Condon’s Australian counsel was ultimately
unsuccessful in his mediation efforts.
010 Mr. Condon initiated proceedings on September 9, 1994, in
Australia seeking return of his children to the United States
under the Hague Convention on the Civil Aspects of International
Child Abduction. Ms. Cooper was served by the Australian
Capitol Territories Family Court in October under these
proceedings, which facilitated Mr. Condon in serving her with
this action before the Los Angeles Superior Court. On December
5, 1994, the Australian Family Court ordered the children
returned “forthwith” to the United States.
011 The trial court issued an order on Mr. Condon’s request for
an order to show cause on December 23, 1994, giving sole legal
custody to Mr. Condon and joint physical custody to both
parties. The order further required Ms. Cooper to immediately
notify Mr. Condon upon the children’s return to Los Angeles,
give him their physical location and telephone number, and
notify him of any change in location within twelve hours of the
change. Another order was issued on January 12, 1995, requiring
Ms. Cooper to hand over the children’s passports to Mr. Condon
upon her arrival in Los Angeles, stating the Superior Court had
jurisdiction over the issues of custody and visitation without
prejudice, and restating she could not remove the children from
Southern California.
012 Ms. Cooper returned to Los Angeles on or about February 2,
1995. She filed her own order to show cause and petitioned for
dissolution of marriage on February 9, 1995. On February 3,
1995, Mr. Condon’s order to show cause came on for hearing. The
trial court found too much uncertainty in the matter to make
final orders, and continued the hearing until May 17, 1995. The
court further noted the children’s passports were in the
possession of Mr. Condon’s counsel, awarded joint legal and
physical custody to the parties, and established a schedule of
visitation for Mr. Condon averaging two afternoons each week and
alternating weekends.
013 Ms. Cooper’s order to show cause came on for hearing on
March 10, 1995. In its findings and order, the trial court
reserved the issue of attorney’s fees until May 17th; ordered
Mr. Condon to pay $510 per month in spousal support and $1,075
per month in child support; ordered Mr. Condon to maintain Ms.
Cooper and the children on his major medical insurance policy;
and continued Ms. Cooper’s order to show cause for contempt
until May 17, 1995. The May 17th date was continued until June
15th, and on that date the parties stipulated to mutual
restraining orders to prevent each other from coming within 100
yards of each other, and from contacting each other except in
case of an emergency regarding their minor children.
014 The matter was called for hearing on June 15, 1995, the
trial court and counsel conferred in chambers, and the matter
was continued to August 16th. The child custody evaluation was
filed on June 15, 1995. On July 20, 1995, (perhaps because of
what he read in the court-ordered custody evaluation), Mr.
Condon retained new counsel. On July 24th, new counsel for Mr.
Condon made an ex parte motion to continue a hearing set for
July 25th. In its order after the hearings on July 25, 1995,
the trial court clarified issues related to the pick-up and
drop-off of the children for visitation, required the parties to
communicate with each other only through the exchange of written
communication placed in the children’s back packs, and arranged
for Ms. Cooper to retrieve her art supplies and finished works
from Mr. Condon.
015 On August 16, 1995, the trial court began a hearing for
temporary orders pending trial. The court-ordered child custody
evaluation was entered into evidence and sealed by order of the
court. Further unreported argument was heard on August 17th on
whether the trial court should issue an interim order allowing
Ms. Cooper to take the minor children back to France to complete
a commissioned artwork for Prince Charles. The trial court’s
ruling on this interim order is not in the record.
016 The trial court heard Mr. Condon’s ex parte motion
requesting random drug testing and expanded visitation on
September 22, 1995. While the trial court only changed
visitation to the extent of allowing Mr. Condon to take the
children to his brother’s wedding in New York, it did issue an
interim order allowing both parties to request two random drug
tests of the other on twelve days’ notice, paid for by the
requesting party. Ms. Cooper did test positive for marijuana at
least once in one of these random tests.
017 Trial on the issues of custody and visitation began on
November 13, 1995. The parties had previously stipulated the
August 16, 1995, hearing be deemed a portion of this trial, and
all evidence received at that time was considered trial
evidence. All declarations submitted in the case were received
into evidence and the trial court took judicial notice of all
declarations in the file as of November 14th. FN2 Trial
continued for six more days in November, three in December, FN3
and the matter was taken under submission on December 29, 1995.
018 The trial court issued its statement of intended decision
on February 1, 1996. The trial court believed there was “a
significant level of truth in the allegations that each party
[made] regarding the other party,” and each was able to provide
adequate parenting of their children. The trial court concluded
that while “it would be in the children’s best interest to spend
significant periods of unmonitored time with each parent . . .
it was also in their best interest that Ms. Cooper be allowed to
reestablish her residence in Australia.” The children would
spend their school time with her, and their four vacations with
Mr. Condon. FN4 Because the court found the balancing of
factors “only slightly favor” Ms. Cooper being allowed to remove
the children to Australia, the court would require the children
to remain in Los Angeles with primary physical custody to Mr.
Condon if Ms. Cooper chose to relocate to France. The factors
the trial court used in its analysis included Ms. Cooper’s
ability to financially support herself in Australia rather than
be wholly dependent on Mr. Condon for support; the impact of the
parties’ stressful relationship on the children; Ms. Cooper’s
extensive family in Australia; the children’s primary emotional
attachment to their mother; and, the children’s lack of a firm
long-time base in California. FN5 In addition to the custody
orders, the trial court established a unique arrangement for
child and spousal support. While Ms. Cooper and the minor
children remained in Los Angeles, Mr. Condon was to pay $914 per
month in child support and $430 per month in spousal support.
FN6 Starting on the first or fifteenth following Ms. Cooper’s
relocation to Australia, child support would be reduced to a
total of $650 per month and spousal support would fall to $180
per month. In place of the monthly support payments, Mr. Condon
would be required to contribute $400 each month to a
“travel-trust fund,” which would be set up to pay for the
children’s round-trip transportation from Australia or Mr.
Condon’s to Australia. Payments would be made into the
“travel-trust fund” until it totaled $5,000, at which point Mr.
Condon would supplement his child and spousal support payments.
When the fund fell back below $5,000, these supplemental
payments would cease.
019 The court’s order specifies Mr. Condon is responsible for
all transportation of the children back and forth to Australia,
as well as for an adult to accompany the children from Australia
to Los Angeles. FN8 Ms. Cooper is responsible for the costs of
an adult traveler to accompany the children’s return from Los
Angeles to Australia. Mr. Condon was also required to
contribute $5,000 toward Ms. Cooper’s attorney’s fees.
020 On February 23, 1996, Mr. Condon filed a motion for
reconsideration. (Code Civ. Proc., 1008.) Though filed more
than ten days after the court issued its statement of intended
decision, Mr. Condon claims he did not receive a copy of the
court’s decision until February 16, due to its delivery to his
until-then counsel’s former address. FN8 He filed his motion
within ten days of receipt of the document. Ms. Cooper opposed
the motion for reconsideration. She argued there were no new
facts which could not have been discovered previously, the
motion did not meet the procedural requirements of Code of Civil
Procedure section 1008, and was untimely. Mr. Condon filed a
reply, claiming the court had limited his rebuttal witnesses and
did not hear certain relevant testimony. The court denied Mr.
Condon’s motion for reconsideration on March 13, 1996.
021 Thereafter, Mr. Condon filed a motion for new trial on May
3, 1996. (Code Civ. Proc., 657.) Mr. Condon’s motion focused
on the legal and psychological implications of Ms. Cooper’s
move-away with the children to Australia. FN9 Ms. Cooper filed
her response on May 16th, to which Mr. Condon responded on May
19th. The court denied Mr. Condon’s motion on May 20, 1996, at
which time it also modified its statement of intended decision.
Mr. Condon filed a timely notice of appeal.
DISCUSSION
022 In the following discussion we first consider the evolving
law governing disputes when a custodial parent proposes to move
away from the area where both divorced parents and their
children have resided. We then explore the unique factors added
to the equation when the proposed relocation is to a foreign
country rather than within California or to another state.
Finally, we evaluate the instant order in the light of these
principles and decide whether it should be sustained.
I. INTRASTATE AND INTERSTATE RELOCATION OF CHILDREN: THE
CURRENT LAW.
023 In recent years, more and more jurisdictions have
liberalized their rules for allowing relocation of children
after the parents divorce. In earlier years the majority of
states placed the burden on the parent seeking to move away with
the children to demonstrate the proposed relocation was in the
“best interests of the child.” (D’Onofrio v. D’Onofrio (N.J.
Super. 1976) 144 N.J. Super. 200, 206, 365 A.2d 27, 30, affd.
144 N.J. Super. 352, 365 A.2d 716 [“real advantage” to custodial
parent and child must be shown to justify removal]; Weiss v.
Weiss (N.Y. 1981) 52 N.Y.2d 170, 176-176, 418 N.E.2d 377,
380-381 [“exceptional circumstances” must be shown to justify
child’s removal from jurisdiction].) Now many states have
shifted the burden to the non-moving parent (In re Marriage of
Frederici (Iowa 1983) 338 N.W.2d 156; Auge v. Auge (Minn. 1983)
334 N.W.2d 393) or placed the parents on an “equal footing”
where the court makes an objective determination whether the
proposed move or the denial of a move best serves the interests
of the children. (Jaramillo v. Jaramillo (N.M. 1991) 113 N.M.
57, 823 P.2d 299.)
024 California has followed the national trend. Until 1996,
the state’s appellate courts had been generally hostile to
relocation requests — most requiring the parent seeking
relocation to demonstrate the move was necessary and in the best
interests of the affected children. (See, e.g., In re Marriage
of McGinnis (1992) 7 Cal.App.4th 473, 479 [burden is on
move-away parent to prove move is essential, expedient and for
an imperative reason]; In re Marriage of Roe (1993) 18
Cal.App.4th 1483 [disapproving proposed relocation from Los
Angeles to Alabama].) But in that year the California Supreme
Court confronted the issue and broke with the prevailing view in
the Courts of Appeal. (In re Marriage of Burgess, supra, 13
Cal.4th 25.) In Burgess, a trial court had allowed a mother to
move forty miles from one community to another in the same
general area and to bring her two young children with her. The
Court of Appeal reversed this move-away order but the Supreme
Court ruled otherwise.
025 The Burgess court shifted the burden from the custodial
parent seeking to move away with the children and placed it
squarely on the non-custodial parent remaining behind. “[I]n a
matter involving immediate or eventual relocation by one or both
parents, the trial court must take into account the presumptive
right of a custodial parent to change the residence of the minor
children, so long as the removal would not be prejudicial to
their rights or welfare. (Fam. Code, 7501 [`A parent entitled
to custody of a child has a right to change the residence of the
child, subject to the power of the court to restrain a removal
that would prejudice the rights or welfare of the child.’].)”
(13 Cal.4th at p. 32.) As to relocations within the United
States, unless the parents are truly sharing joint physical
custody, a move away does not represent a change of condition
requiring the parent proposing to move away to establish a need
or even a justification for relocating to another geographic
area.
THE UNIQUE CHARACTERISTICS OF RELOCATIONS TO FOREIGN COUNTRIES.
026 Our research has uncovered several reported decisions
elsewhere in the country which considered requested move-away
orders to foreign countries. Almost evenly divided on the
issue, these courts differed both in the values they considered
relevant and the weight they assigned those values.
027 Some decisions treat the children of divorce as virtual
chattels whose possession had been awarded to the custodial
parent. Like their other possessions, custodial parents were
free to take their children with them when they moved to a
foreign country. (See, e.g. Bozzi v. Bozzi (Conn. 1979) 177
Conn. 232, 413 A.2d 834.) These courts exhibited little concern
about the reasons for the move or the non-custodial parent’s
visitation rights or even the best interests of the children.
But the decisions lack persuasive value, however, in present day
California where the Legislature has created a statutory
framework favoring joint custody, promoting the continued
involvement of both parents in their children’s lives, and
establishing the best interests of the children as the paramount
criteria to be applied in custody determinations.
028 At the other extreme are opinions from the 1970’s and
1980’s which denied relocation to foreign countries in part
because of the unique characteristics of a foreign rather than a
domestic move-away.
029 In Otava v. Otava (Minn.App. 1985) 374 N.W.2d 509,
twenty-eight days after the divorce decree the mother, who also
was the custodial parent, sought to move away with her
twelve-year old son to Finland. The trial court denied the
request and the appellate court affirmed. The mother was
working two part-time jobs in Minnesota. The avowed purpose for
the move to Finland was to study child care services leading to
full-time employment in that field in that country and “`a
better life for herself and her minor son.'” (374 N.W.2d at p.
510.) As in the instant case, the mother had an extended family
in the country to which she sought to move and the child had
spent time there during an earlier marital separation.
030 The father responded he presently lived close to the son
and spent a great deal of time with him. He further emphasized
the close relationship between that son and his son by a
previous marriage. The father argued he lacked the means to
afford frequent visitations overseas. The trial court found the
move was not in the child’s interest and denied the mother’s
request.
031 The appellate court concluded Minnesota law required
custody modifications only if “necessary to serve the best
interests of the child” and visitation modifications likewise
must “serve the best interests of the child.” (Id. at p. 511.)
The court rejected the mother’s argument the burden fell on the
non-custodial parent, the father, to demonstrate the move
“contradicts the best interests of the child,” the test
announced in a prior Minnesota Supreme Court opinion, Auge v.
Auge, supra, 334 N.W.2d 393, 399. The court pointed out that
test only applies when the denial of a move “is tantamount to a
change of custody” (374 N.E.2d at p. 511) while the mother in
Otava had said she would remain in Minnesota if the court denied
her request. It further pointed out the Auge decision expressly
reserved the question whether the burden shifted to
non-custodial parents in proposed move-aways to foreign
countries. (Ibid.)
032 The appellate court did not rest its decision on either of
these grounds, however. Instead, it found the allocation of the
burden was irrelevant because the evidence was sufficient in
either instance to support a denial of the mother’s requested
move to Finland. “The move would seriously impair visitation
contacts with the boy’s father, and it would require the child
to sacrifice an important relationship with his brother. . . .
[] The trial court could reasonably find that harm in moving
the child was not outweighed by the value of contacts for the
child in Finland. The advantages for a move are unclear. They
relate mostly to the child’s financial circumstances, but there
was no evidence that a move to Finland would improve the
financial situation of appellant and the child. . . . [] In
addition, the supreme court has indicated that when removal is
contemplated the trial court must attempt to maintain such
visitation contacts as are `reasonable and necessary to maintain
a good relationship between the noncustodial parent and the
child.’ [Citation.] Present visitation arrangements can be set
aside `where reasonable alternative visitation is available and
where the advantages of the move are substantial.’ [Citations.]
The trial court here received ample evidence that if the child
moved to Finland, his father would be unable to maintain a
normal visitation relationship. Thus, no reasonable alternative
visitation arrangement was feasible.” (Id. at. p. 511.)
033 The Minnesota court’s rationale would have applied equally
to any move of substantial distance whether to another nation or
not. But in O’Shea v. Brennan (N.Y.Sup. 1976) 387 N.Y.S.2d 212,
a New York court invoked considerations unique to foreign
move-aways. Interestingly, as in the instant case the proposed
move in O’Shea was to Australia. This time the mother had
remarried to an Australian and desired to settle there with her
child and new husband. The father and mother had joint custody
although the mother had physical custody except during summers.
In her petition seeking relocation to Australia, the mother
consented to a longer visitation period with the father during
summers.
034 After reciting statutory provisions and court decisions
declaring trial courts are to make custody and visitation
rulings on the basis of the “best interests of the child” the
court discussed why it was not in the best interests of this —
or apparently any — child to be removed from the United States
to another country.
035 “Once the infant is removed to Australia, this court loses
its jurisdiction over her. The well-settled rule in New York
State is that the full faith and credit clause of the
Constitution does not apply to custody decrees. Once the infant
is before our court we will assume jurisdiction and as parens
patriae decide what is best for the child. The Australian
courts will exercise the same prerogative and will assume
jurisdiction over the infant.
036 “It is true that `nowhere in the world today is the right
of citizenship of greater worth to an individual than it is in
this country. It would be difficult to exaggerate its value and
importance.’ [Citation.] This court will jealously guard this
treasured birthright of the child. [Citations.] All Americans,
no matter what economic, social, religious or racial group they
happen to fall into, share in a priceless possession, the right
of being a citizen in this great country of ours. `I was born
an American, I will live an American, I shall die an American.’
(Daniel Webster, speech, July 17, 1850.)
037 “To award custody to the mother would, in effect, be to
completely deny to the infant the right to the love, parental
care, companionship and guidance of her father. Further, it
would deprive her of the right to be raised and educated in her
own country-which is part of her birthright. Moreover, it would
deprive the petitioner of the natural rights he has as a
father-since he would be completely cut off from his daughter by
a distance of many thousands of miles. [Citations.]
038 “The benefits, environment, educational opportunities,
cultural climate, as well as the economic standards of the
father are well known factors which would act toward the benefit
of the child if custody is awarded to the father. However,
these factors would be unknown if the mother is permitted to
remove the infant to Australia.
039 “The permanent removal of a domiciliary child must not be
permitted where it renders rights of visitation illusory.[] .
. . In view of the circumstances, I find that the mother is not
acting in the best interests of her daughter in attempting to
take her to Australia, where the child will be raised, educated
and brought up for all practical purposes as an Australian. . .
. [] . . . [T]he best interests of this seven-year-old child
require that custody be given to the father. . . .” (O’Shea v.
Brennan, supra, 387 N.Y.S.2d 212, 215-216.)
040 In Daghir v. Daghir (N.Y.A.D. 1981) 441 N.Y.S.2d 494, affd.
453 N.Y.S.2d 609, 439 N.E.2d 324, the New York courts once again
denied a move-away to a foreign country, this time France, and
even though it was to be limited to two years duration. Like
the Minnesota court in Otava the New York appellate court
elevated the loss of a strong father-child relationship over the
mother’s interest in joining her second husband who had taken a
job in France.
041 In The Matter of Marriage of Meier, the Oregon Supreme
Court denied approval of a relocation to Canada, announcing
custodial parents could justify such a move only by
demonstrating the best interests of the children would be better
served by permitting the move than by requiring them to remain
in their current place of residence. (The Matter of Marriage of
Meier (Or. 1979) 286 Or. 437, 595 P.2d 474; see also other cases
collected in Annot., Court-Authorized Permanent or Temporary
Removal of Child by Parent to Foreign Country (1984) 30
A.L.R.4th 548.)
042 From a review of these out-of-state opinions it is possible
to extract at least three concerns which make foreign
relocations different in kind from intrastate and even most
interstate move-away cases.
043 First, the cultural problem. In some cases, to move a
child from this country to another is to subject him or her to
cultural conditions and practices far different from those
experienced by American citizens or to deprive the child of
important protections and advantages not available in the other
country. To pose an extreme example, who could dispute a
proposed relocation of a female child to a country practicing
genital mutilation represents a “changed condition” requiring an
inquiry whether this move is in the “best interests” of that
child? Similarly, how about a move to a country where females
were not offered the opportunity for higher education or the
freedom to pursue careers? Or a move of any pre-teen or
teenager to a country where the language is one unfamiliar to
that child. Or, consider a proposed relocation of any child to
a nation governed by a dictator or any nation which denies its
citizens the freedoms and rights guaranteed in the United States
and other democracies.
044 Second, the distance problem. Except for Mexico or Canada,
foreign relocation cases in this state inevitably involve a move
to a different continent-typically eight thousand miles or
further and eight or more time zones away from California. With
those great distances come problems of expense, jet lag, and the
like. For a person of average income or below, an order
relocating his or her child to a faraway foreign country is
ordinarily tantamount to an order terminating that parent’s
custody and visitation rights.
045 Third, and most difficult, is the jurisdictional problem.
California court orders governing child custody lack any
enforceability in many foreign jurisdictions and lack guaranteed
enforceability even in those which subscribe to the Hague
Convention on the Civil Aspects of International Child
Abduction. Thus, the California courts cannot guarantee any
custody and visitation arrangements they order for the
non-moving parent will be honored.
046 In our view, a trial court confronted with a parent’s
request to relocate a child to a foreign jurisdiction should
consider all three of the above factors, in addition to those
affecting a domestic move-away. A move-away to certain cultures
may profoundly and adversely affect the “best interests of the
child” and could justify a denial of such a relocation. One
does not have to be as chauvinistic as the judge who wrote
O’Shea v. Brennan, supra, 387 N.Y.S.2d 212 to conclude the best
interests of an American child would be ill-served by a move to
a society that would subject him or her to oppressive practices
or deny the child important rights.
047 Similarly, except for those of considerable means, any
relocation to another continent is likely to represent a de
facto termination of the non-moving parent’s rights to
visitation and the child’s rights to maintain a relationship
with that parent. (See Otava v. Otava, supra, 374 N.W.2d 509,
511.) Thus, when a relocation would have this practical effect,
before allowing the move-away a trial court should require the
moving parent to satisfy the burden of showing the termination
of those rights would be in the best interests of the child. If
the moving parent cannot satisfy this burden, perhaps he or she
could tender an arrangement where the moving parent finances the
other parent’s visitation or the child spends alternate years in
the two countries, or some other plan which accommodates the
valuable relationship between the non-moving parent and the
child.
048 Finally, before permitting any relocation which purports to
maintain custody and visitation rights in the non-moving parent,
the trial court should take steps to insure its orders to that
effect will remain enforceable throughout the minority of the
affected children. Unless the law of the country where the
children are to move guarantees enforceability of custody and
visitation orders issued by American courts, and there may be no
such country, the court will be required to use its ingenuity to
ensure the moving parent adheres to its orders and does not seek
to invalidate or modify them in a foreign court.
049 Several courts which allowed relocation to a foreign
country likewise recognized the enforceability problem.
(Mitchell v. Mitchell (Ga. 1984) 252 Ga. 46, 311 S.E.2d 456,
459; Matter of Marriage of Ditto (Or.App. 1981) 52 Or.App. 609,
628 P.2d 777, 779-780; see also, In Re Marriage of Creedon
(Ill.App. 1993) 245 Ill.App.3d 531, 615 N.E.2d 19, 22-23.)
These courts required the relocating parent to post a
substantial financial bond which would be forfeited if the
parent failed to comply with the custody and visitation
arrangements ordered by the American court. Presumably the
parent would have forfeited this bond even if he or she obtained
a modification in those arrangements from the foreign court.
Another possibility available whether or not the move-away
parent has the funds to post a substantial bond would be to
terminate or reduce spousal or child support payments should the
moving parent frustrate the custody and visitation provisions in
the California court’s order and the foreign court refuses to
enforce those provisions. FN10 These measures also would be
appropriate if the move-away parent sought and obtained a
foreign court order inconsistent with the California order.
III.THE TERMS OF THE ORDER PERMITTING RELOCATION TO AUSTRALIA
ARE APPROPRIATE BUT THE ORDER FAILS TO GUARANTEE ENFORCEABILITY
IN AUSTRALIA OR TO ADEQUATELY SECURE ENFORCEMENT.
050 In the instant case, the first two factors unique to
foreign relocations are satisfied, for different reasons. On
its face, a move-away to Australia does not raise any
significant cultural problem. Courts do not have to hear expert
testimony to conclude the United States and Australia share
common cultural values and the move to Australia is unlikely to
expose the Condon children to any threatening cultural practices
or deny them fundamental civil and political rights. Nor did
Mr. Condon prove otherwise in the trial court. As to the
distance and accompanying expense problems, we explain below the
trial court implicitly dealt with them by fashioning an order
which finances the father’s visitation costs through reductions
in his substantial child and spousal support obligations.
051 The third concern-that of jurisdiction-remains, however.
We turn to it after explaining why we affirm the other terms of
the custody and visitation arrangements the court ordered.
While we are not certain the members of this court would have
permitted this relocation given the implications for the
relationship between father and children, we conclude under the
prevailing standard of review the substantive terms of the trial
court’s order fall within the permissible span of that court’s
discretion.
A. The Trial Court Did Not Abuse Its Discretion In Permitting
Relocation To Australia On The Terms Provided For The Father’s
Rights To Custody and Visitation.
052 The standard of appellate review of custody and visitation
orders is the deferential abuse of discretion test. (In re
Marriage of Burgess, supra, 13 Cal.4th 25, 32, citing Gudelj v.
Gudelj (1953) 41 Cal.2d 202, 208.) The Burgess court further
defined the test as “whether the trial court could have
reasonably concluded that the order in question advanced the
`best interest’ of the child.” (13 Cal.4th at p. 32.)
053 Great deference must be given to the trial court’s
adjudication of the facts, and in the instant case there is no
doubt the court made Herculean efforts to fairly balance all the
factors in the case. The court conceded the balance of
competing considerations was very close, and only slightly
favored its order allowing Ms. Cooper to move away to Australia
with the minor children. Nonetheless, the trial court took
extraordinary pains to craft measures calculated to minimize the
adverse effects of the move on the father-child relationship,
assuming those measures remain enforceable. FN11 Though the
case at bar was decided before the Supreme Court issued its
decision in In re Marriage of Burgess, supra, 13 Cal.4th 25
(Burgess) our decision is bound by that precedent. (9 Witkin,
Cal. Procedure (4th ed. 1997) Appeal, 928, pp. 964-965.) The
Burgess court held a custodial parent moving away with his or
her minor children is not burdened by any requirement to prove
the move was necessary. (Burgess, 13 Cal.4th at p. 36.)
However, the court then stated “[a] trial court may consider the
extent to which the minor children’s contact with their
noncustodial parent will be impaired by relocating,” though it
declined to state any particular formula for determining contact
and visitation, nor a requirement to “preserve the
predissolution status quo.” (Ibid.)
054 Acknowledging Burgess as the controlling law in the area of
move-away orders, it is nevertheless distinguishable on its
facts from the instant case. While Burgess dealt with an
initial custody order allowing a move-away of only 40 miles from
Tehachapi to Lancaster, both in the state of California, the
case at bar allows a trans-Pacific move-away to a foreign
country 8,000 miles away. Whereas the Burgess order was for
sole physical custody to the mother and a right of visitation by
the father, the court in the instant case made an order awarding
joint legal and physical custody to both parents. Finally,
Burgess involved a situation where both parents were equally
supportive of the other’s right to contact. In the present
case, the court found Ms. Cooper’s removal of the children from
California to Australia “showed no concern for the interests . .
. of the children for a relationship with [Mr. Condon].” These
distinguishing features require us to look carefully at the
decision below and to question applying too strict an
interpretation of Burgess on the instant case.
055 Footnote 12 in Burgess suggests “a different analysis may
be required when parents share joint physical custody of the
minor children under an existing order and in fact, and one
parent seeks to relocate with the minor children.” (Burgess,
supra, 13 Cal.4th at p. 40, fn. 12, italics in original.)
Whereas the issue under Burgess is “whether a change in custody
following relocation is `”essential or expedient for the welfare
of the child”‘” (id. at p. 38, original italics), the trial
court in a de facto joint custody situation may modify or
terminate the custody order if the best interest of the child
requires it to do so, and further “must determine de novo what
arrangement for primary custody is in the best interest of the
minor children.” (Burgess, supra, 13 Cal.4th at p. 40, fn. 12.)
056 Addressing this footnote, Brody v. Kroll (1996) 45
Cal.App.4th 1732, 1736, a case where the mother was the “primary
caretaker,” and actual joint custody existed between the
parents, the Court of Appeal held the trial court “should have
determined whether it was in [the child’s] best interest to give
the mother virtual sole custody and allow her to take the child
to Connecticut.” (Brody v. Kroll, supra, 45 Cal.App.4th at p.
1737.)
057 In a more recent case where the same Fourth District Court
of Appeal came to the opposite result, the court explained the
Burgess footnote. “[T]he `different analysis’ mentioned by
Burgess arises out of the disruption of the status quo which
necessarily inheres in a move-away case where there is genuine
joint physical custody since, in such an instance, it is
unavoidable that the existing custody arrangement will be
disrupted. One parent or the other must be given primary
physical custody. Accordingly, a `de novo’ determination-in
effect, a `reexamination’ of the basic custody arrangement-makes
sense.” (In re Marriage of Whealon (1997) 53 Cal.App.4th 132,
142.)
058 The facts of the instant case are somewhere in between
Brody and Whealon. The status quo at the time of the trial
court’s order was that court’s own temporary joint custody order
during the pendency of the trial. While the court found Ms.
Cooper was the children’s primary caretaker before the
separation, the children lived under actual joint custody from
the time of their return to America in February 1995, until
their departure for Australia late in 1996. The case at bar is
also distinct from both Brody and Whealon because it has to do
with an initial custody order and not a request for modification
of an existing custody order.
059 The court acknowledged Mr. Condon had a good relationship
with his sons. “The evidence shows a strong and bonded
relationship between the petitioner and the children no matter
what the prior circumstances were.”
060 Family Code section 3020 states it is the public policy of
California to assure minor children “frequent and continuing
contact” with both parents after the parents’ separation or
dissolution of marriage, and to encourage parents to “share the
rights and responsibilities of child rearing.” (Fam. Code,
3020, subd. (b).) The only exception to this policy is where
the contact “would not be in the best interest of the child, as
provided in Section 3011 [factors bearing on the best interest
of a child].” (Ibid.) The court did not find anything in the
facts of the instant case necessitating a restriction on the
contact between Mr. Condon and Bayard and Henry. On the
contrary, the court believed “that unless [Mr. Condon] has the
most frequent possible contact with the children his
relationship with them is likely to be damaged in ways that will
have profound effects on them for the balance of their lives.”
061 The court’s award of joint legal and physical custody of
the minor children to Mr. Condon and Ms. Cooper was technically
feasible under its order allowing Ms. Cooper to move away to
Australia. The question remains whether it was in the
children’s “best interest.” On one hand, joint legal custody,
dealing with decision-making power over the children’s health,
education, and welfare, can certainly be accomplished
transcontinentally. (Fam. Code, 3003.) FN12 The stickier
issue is joint physical custody. The Family Code states a
parent with joint physical custody of his minor children shall
have “significant periods of physical custody,” which shall be
manifested in such a way as to “assure a child of frequent and
continuing contact with both parents.” (Fam. Code, 3004.)
During the pendency of the trial Mr. Condon had physical custody
of his children for approximately two to four days a week. As a
result of the court’s order, Mr. Condon now has physical custody
of his children in California for twelve days, three times a
year and for a more extended six-week period, all coinciding
with the Australian school holidays, a total of nearly twelve of
the fifty-two weeks in the year. Additionally, he may exercise
custody rights in Australia for up to 15 days in any given
month. While it certainly does not constitute the weekly
“frequent and continuing contact” that existed during the
pendency of the trial, the total number of days certainly
remains a “significant period of physical custody,” in line with
the requirements of Family Code section 3004 FN13 and the
maintenance of a meaningful relationship between Mr. Condon and
the two boys.
062 The California Supreme Court in Burchard v. Garay (1986) 42
Cal.3d 531, 541 emphasized the importance of “stability and
continuity in the life of a child, and the harm that may result
from disruption of established patterns of care and emotional
bonds.” The child’s need for continuity and stability assumes
an “increasingly important role” when custody continues over “a
significant period” of time. (Id. at p. 538) The trial court
in the instant case correctly found Ms. Cooper had been the
children’s primary caregiver, and that they spent approximately
nine months of their respective lives away from Mr. Condon
before Ms. Cooper removed them to Australia in July, 1994.
Seemingly, the court weighed these facts in favor of allowing
Ms. Cooper to move away, implicitly addressing Burchard v. Garay
and finding little continuity or stability in the children’s
lives that would favor maintaining the status quo of two to four
days a week with Mr. Condon. The court described its function
as “not to reward or punish the prior behavior of any party, but
to judge each party’s current ability to provide care for the
children.”
063 True, the prior behavior of the parties directly bears on
custody determinations. Family Code section 3011 requires the
court, in evaluating the best interest of the child, to
consider, among other factors, the health, safety, and welfare
of the child; any history of abuse by one parent against the
child or against the other parent; and, the nature and amount of
contact with both parents. (Fam. Code, 3011, subds. (a)(b)
and (c).) FN14 It is more than apparent the court did consider
these factors in making its order allowing Ms. Cooper to
move-away to Australia. FN15 The court even expressly
acknowledged Ms. Cooper’s unauthorized removal of the children
to Australia in July 1994, in its statement of intended
decision, yet on balance found reasons justifying the proposed
permanent move away to Australia.
064 Recognizing the acknowledged importance of maintaining a
meaningful and ongoing relationship between Mr. Condon and his
children across some eight thousand miles, the trial court
imposed conditions which made that goal both logistically
possible and financially feasible. The boys journey to Los
Angeles four times a year and the father is also allowed
half-time visitation if business or holidays bring him to
Australia. The father can pay for his boys’ four annual trips
from Australia to Los Angeles out of a travel fund assembled
from reductions in his previous levels of spousal and child
support.
065 The trial court also recognized the fragility of the
balance favoring approval of the requested move away. It
specifically forbade Ms. Cooper from relocating to France, a
move she had favored at one time. Australia offers advantages
— a common language, the wife’s extended family, the boy’s
earlier significant residence there, and the like — which
France does not possess. France might have appealed to Ms.
Cooper because of career aspirations, but the court did not
consider a move to that country in the best interests of the
children. In that we agree with the trial court.
066 Applying the abuse of discretion standard Burgess
reaffirmed, by a close margin we conclude the careful balance
the trial court struck in this case could be reasonably found to
serve the best interests of the Condon children. But this
careful balance is reasonable only if it also is enforceable.
B. The Court Order Allowing Ms. Cooper To Move Away to
Australia With The Children Lacks Guaranteed Enforceability In
the Australian Courts.
067 Several factors present in this case underscore the
critical importance of effective, long term enforcement of all
the conditions the California court found it necessary to
include before it would authorize a move away to Australia. The
delicate balance the trial court struck depends on Ms. Cooper
placing her two boys on flights to Los Angeles four times a year
and resisting the temptation to move away once again to France.
Meantime Ms. Cooper once before defied the order of a California
court by secretly transporting her children to Australia and
keeping them there without allowing Mr. Condon any access until
the Australian courts ordered their return under mandatory
provisions of the Hague Convention on the Civil Aspects of
International Child Abduction.
068 The trial court’s order granting Ms. Cooper the right to
move away to Australia with the minor children assumed the
Australian court would honor it during the minor children’s
entire period of minority. There is no question the trial court
attempted to carefully balance all the competing factors in the
present case in order to fashion an appropriate judgment and
order. No matter how careful its judgment, however, for reasons
explained below, once Ms. Cooper relocates to Australia, the
California court has no way of guaranteeing its intricate order
will be enforced by the foreign court.
1. The legal basis for continuing jurisdiction over the
modification of child custody decrees in the California and
Australian courts.
069 The Uniform Child Custody Jurisdiction Act (UCCJA),
codified in Family Code sections 3400 to 3425, provides the
exclusive method for determining subject matter jurisdiction in
child custody cases in California. (In re Stephanie M. (1994) 7
Cal.4th 295, 310, citing Adoption of Zachariah K. (1992) 6
Cal.App.4th 1025, 1034.) Family Code section 3403 gives
California courts jurisdiction to make or modify child custody
determinations. FN16 (Brossoit v. Brossoit (1995) 31
Cal.App.4th 361, 368-369.) However, the UCCJA, as codified in
Family Code section 3414, subdivision (a) gives another state’s
court continuing jurisdiction over its child custody
determinations by preventing a California court from modifying
the decree as long as the first court does not concede
jurisdiction. FN17 The other state’s jurisdiction over the
modification of custody orders is exclusive, and continues as
long as at least one of the parties remains in that state. FN18
(Ibid.; Kumar v. Superior Court (1982) 32 Cal.3d 689, 700.) FN18
Federal law is substantially in accord with the UCCJA. FN19
070 The intent of the UCCJA has always been that its general
policies also apply to international custody disputes. (Fam.
Code, 3424; FN20 Plas v. Superior Court (1984) 155
Cal.App.3d 1008, citing Miller v. Superior Court (1978) 22
Cal.3d 923.)
071 The Hague Conference on Private International Law,
Convention on the Civil Aspects of International Child Abduction
(October 25, 1980) 19 Intl. Legal Materials 1501 (“Hague
Convention”), serves an analogous function to the UCCJA in
custody disputes involving countries that are signatories to the
convention. FN21 Unlike the continuing jurisdiction over
custody modifications under the UCCJA, however, the Hague
Convention protects a custodial parent from unlawful removal or
retention of minor children for only one year. (Hague
Convention, art. 12, 19 Intl. Legal Materials at 1502.) FN 22
Only within the first year after the removal of the children
from their habitual residence are courts of the country to which
the children were removed obligated to order the return of the
child forthwith. (Ibid.)
072 After one year, the rules change. The new country may
consider the children “habitually resident” in that country and
under the Hague Convention as enacted into Australian law the
local court may evaluate issues governing the appropriate
custody of the child. (Australian Family Law (Child Abduction
Convention) Regulations 1986 (Cth)- Reg. 16) FN23
073 That is, in effect, the Australian courts are free to
reconsider and modify the custody arrangements embodied in the
foreign court’s order.
074 Registration of the California court order with the
Australian courts provides some measure of protection, but not
absolute protection. According to Regulation 23(5) of
Australia’s Family Law Regulations, “[a]n overseas child order
registered in accordance with this regulation is enforceable
throughout Australia until the registration (including a
concurrent registration) has been canceled.” FN24 (Fam. Law
Regulations, Reg. 23(5).) An “overseas child order” registered
with the Australian court has the same force and effect as if it
were an order made by that court. (Fam. Law Act 1975 (Cth)
70H) FN25 Once an “overseas child order” is registered with
the Australian courts, the court must not exercise jurisdiction
over the making of “residence” (custody) or “contact” (access)
orders unless each person entitled to custody of the child
consents to the exercise, or “the court is satisfied that there
are substantial grounds for believing that the child’s welfare
requires that the court exercise jurisdiction in the
proceedings.” (Fam. Law Act 1975 (Cth) 70J(1)(b).) FN 26
075 The Full Court of the Family Court interpreted this statute
in its previous form, section 68(3), to be a prima facie test
for the exercise of jurisdiction. (In the Marriage of Domroese
and Leggett (1996) 20 Fam. L.R. 213, quoting In the Marriage of
Trnka (1984) 10 Fam. L.R. 213.)
076 Once an Australian court has exercised jurisdiction in a
proceeding for a custody or access order in relation to a child
subject to an “overseas child order,” it must not make a new
custody or access order unless it is satisfied: “(a) that the
welfare of the child is likely to be adversely affected if the
order is not made; or [] (b) that there has been such a change
in the circumstances of the child since the making of the
overseas child order that the residence order, contact order or
care order ought to be made.” (Fam. Law Act 1975 (Cth)
70J(2).) The Full Court in In the Marriage of Domroese and
Leggett stated the requirements of sections 68(3) and 68(4) of
the previous version of the Family Law Act were independent of
one another: “jurisdiction is exercised if a prima facie case is
made out,” and a revised custody order is only made by the
Australian court if “the higher test” of section 68(4) is
satisfied. (In the Marriage of Domroese and Leggett, supra, 20
Fam. L.R. 213.)
2. Australian law does not require the continued enforcement
of the California child custody order.
077 There are three areas where an Australian court can
disregard the continuing jurisdiction of a California court over
modifications to its child custody orders. These are: (1)
after the first year, under the Hague Convention as manifested
in the Family Law (Child Abduction Convention) Regulations; (2)
under Family Law Act 1975 (Cth) section 68(3) (now 70J(1))
which deals with the exercise of jurisdiction where a foreign
order has been registered; and, (3) by making a new order after
exercising jurisdiction over the foreign custody order (Fam. Law
Act 1975 (Cth) 68(4) (now 70J(2)).
078 The Australian Family Law (Child Abduction Convention)
Regulations control how an Australian court responds to orders
made through Hague Convention procedures for the return of
children illegally removed or retained from their “habitual
residence.” Regulation 16(1) requires the court to make an
order returning children who have been illegally removed to or
retained in Australia, provided less than one year has elapsed.
(Fam. Law (Child Abduction Convention) Regulations, Reg.
16(1)(a).) If more than one year has passed the court must
still make the return order, unless it is satisfied the child
has “settled in his or her new environment.” (Fam. Law (Child
Abduction Convention) Regulations, Reg. 16(1)(b).) Regulation
16(1)(b) gives parents who have been illegally denied custody of
their children after one year’s absence from their home no
assured method of securing the return of their children.
079 Mr. Condon points out in his letter brief the children are
now residents of Australia, having lived there since late 1996
pursuant to the order now on appeal, and are now attending
Australian schools. FN27 The children also have been
Australian citizens from birth, have resided there for several
periods in their lives, and have their mother’s family residing
in that country. Since the children have now been resident in
Australia for over a year, the Australian court would likely
consider them “settled” there in the meaning of Regulation 16(1)
and therefore not be required to make an order returning them to
California.
080 Even if the court did not consider Bayard and Henry settled
in Australia, under Family Law (Child Abduction Convention)
Regulations, Regulation 16(3) it could refuse to order their
return if it determined Mr. Condon was not exercising his
custody rights before their retention in Australia (Reg.
16(3)(a)(i)); had consented to the retention (Reg.
16(3)(a)(ii)); or it felt there was a “grave risk of harm” the
children would be exposed to “physical or psychological harm or
otherwise place [them] in an intolerable position” if they were
returned to California (Reg. 16(3)(b)). Regulation 16 of the
Family Law (Child Abduction Convention) Regulations does not
provide strong protection of California’s continuing
jurisdiction over its child custody determinations.
081 Aside from the Hague Convention, registration of the
California custody order is the other method of seeking
enforcement. Mr. Condon correctly focused on Australian Family
Law Act 1975 (Cth) sections 68(3) and 68(4) (now 70J(1-2)) in
his letter brief. These sections allow the Australian court to,
first, assert jurisdiction over the overseas custody order, and
later, make a new custody order once it determines the
children’s welfare would be adversely affected if it did not
act. While the court is not certain to exercise jurisdiction or
issue a revised order, it is well within its power to do so. Of
course, once an Australian court asserts jurisdiction, it can
look into the substance of the custody issues and modify the
California order, something the trial court below understood to
be solely within its power as long as one of the parties
remained in California.
082 Ms. Cooper correctly argues Kumar v. Superior Court, supra,
32 Cal.3d 689 is controlling law in California with regard to
continuing jurisdiction to modify child custody orders made in
California or other American states. Following Kumar and the
stated policy of Family Code section 3424 to extend the UCCJA to
the international arena, it is probable, indeed nearly certain,
a California court would enforce an Australian court custody
order that was registered here. Kumar, however, is not
controlling law for Australian courts. If an Australian court
believes the children’s welfare would be adversely affected by
its refusal to exercise jurisdiction over the California order,
it may assert jurisdiction. (Fam. Law Act 1975 (Cth) 70J(2).)
Once it has asserted jurisdiction over the foreign custody
order, the Australian court can modify the California order if
it is satisfied the children’s welfare would “likely” be
“adversely affected” by its inaction, or due to a “change of
circumstances.” (Fam. Law Act 1975 (Cth) 70J(2).) Ms. Cooper
only obfuscates the issue by quoting the first half of Family
Law Act 1975 (Cth) section 68(3), which includes everything
before the word unless: “a court in Australia shall not . . .
exercise jurisdiction . . . [unless].”
083 Indeed the facts are the children are now residents of
Australia, are now attending Australian schools, have been
Australian citizens from birth and previously resided for
significant amounts of time in Australia, and their mother and
her family all reside in that country. This gives that nation’s
courts what very well could be understood as “substantial
grounds for believing that the child[ren]’s welfare requires
that the court exercise jurisdiction in the proceedings.” (Fam.
Law Act 1975 (Cth) 70J(1)(b).) If an Australian court elected
to do so, it could easily undo the intricate matrix of
conditions the California court imposed in order to justify Ms.
Cooper’s move away to Australia. It is possible, although not
probable, an Australian court with less stake in the children’s
relationship with a California father, to consider it against
the best interests of those children to require them to travel
eight thousand miles and cross eight time zones four times a
year. Or an Australian court might have a different view about
the desirability of permitting one of its citizens and her
children to resettle in France if such a move would advance the
international reputation of one of that’s nation’s artists.
FN28
084 The trial court failed to evidence an understanding its
custody order might not be enforced by the Australian courts.
Whereas the court could be certain a similar order allowing a
party to move to any of the other 49 states of the union would
be enforced under the UCCJA as long as either one of the parties
remained in California, the enforceability of the order in the
instant case, especially after the children had resided in
Australia for more than one year, is uncertain at best. An
unenforceable order is no order at all and a custody order which
is guaranteed enforceability for only one year of the remaining
ten to twelve years of minority represents an abuse of
discretion by the issuing court. Such an order does not
adequately protect the interests of this state’s citizen, the
father, in maintaining a relationship with his children, nor
does it adequately preserve the policies this state’s
Legislature has declared should govern child custody
arrangements.
085 We do not mean to suggest the Australian courts necessarily
— or even probably — will overrule the California court’s
calculation of the best interests of the Condon children. But
that possibility exists. Nor do we assume Ms. Cooper will
disobey the California order or seek to modify its terms in the
Australian courts rather than this state’s courts. Indeed Mr.
Condon, who represented himself at oral argument in this court,
conceded his ex-wife thus far had complied completely with the
California order. Nonetheless, one year is only the beginning
for an order that has a dozen years to run. And an order a
party voluntarily obeys for a while is not the same as one which
is enforceable without choice for the duration.
086 In order to avoid this enforceability conundrum, Ms.
Cooper’s supplemental brief offers to concede the continuing
jurisdiction of the California court. The issue remains,
however, whether the Australian court will enforce a concession
of jurisdiction. Accordingly, we remand to the trial court to
obtain a concession of jurisdiction and furthermore to create
sanctions calculated to enforce that concession. At a minimum,
such sanctions should include the posting of an adequate
monetary bond within Ms. Cooper’s means and the potential
forfeiture of all or some support payments upon proof Ms. Cooper
is disregarding essential terms of the court order or has
violated the concession of jurisdiction by pursuing modification
of the California order in the courts of Australia or any other
nation. Mr. Condon should not, however, be permitted to
unilaterally terminate or reduce support payments because the
terms of the California orders have been violated. Rather he
will only be allowed to petition the trial court for such
relief.
087 These provisions should be incorporated in a revised order
approving Ms. Cooper’s move away to Australia. An unenforceable
order is no order at all, and thus is void. In the event Ms.
Cooper chooses to withdraw her offer to concede jurisdiction in
the California courts, the trial court shall impose a specific
requirement the parties address any requests for modification of
its order to the appropriate California court and furthermore to
provide for sanctions, including at least those described above,
should Ms. Cooper disobey this requirement or should the
Australian courts fail to enforce other terms of the California
order.
DISPOSITION
088 The judgment is reversed and the cause remanded to the
trial court with instructions it amend its order permitting Ms.
Cooper to move away to Australia with her children to
incorporate Ms. Cooper’s concession of continuing jurisdiction
in the California courts and appropriate sanctions to enforce
that concession including at least those described in this
opinion. If Ms. Cooper withdraws her offer to concede
jurisdiction, the amended judgment shall require Ms. Cooper to
address any proposed modifications of that judgment to
California courts and provide for appropriate sanctions for a
failure to do so or should the Australian courts fail to enforce
the terms of the California judgment. In other respects, the
terms of the judgment are affirmed. Both parties to pay their
own costs on appeal.
CERTIFIED FOR PUBLICATION
JOHNSON, Acting P.J.
We concur:
WOODS, J.
NEAL, J.
Footnotes
———————-
1. According to Mr. Condon’s solicitor, “The force of the
order is that my client cannot even ask me to try and
locate his children through their grandparents. I am now
not even able to write to Mr. and Mrs. Cooper.”
2. Pursuant to the court’s findings and order after the
hearing on October 5th and filed on November 28, 1995,
the trial court gave Mr. Condon custody of the minor
children on alternating weekends from Thursday afternoon
until Monday morning, every Tuesday after school until
7:00 p.m., and on alternating Thursdays after school
until Friday morning. Pick up and delivery was to take
place at school, or at the West Hollywood Sheriff’s
station when the children were not in school. Mr. Condon
could also enroll Henry in part time day care at his own
expense.
3. On December 7, 1995, the trial court issued an order
giving Mr. Condon custody of the children for ten days up
to and including Christmas 1995, with visitation to Ms.
Cooper. The trial court also ordered, pursuant to
stipulation of the parties, the parties may record one
another, telephonically, face-to-face, or otherwise, with
or without notice.
4. Mr. Condon’s four custody periods would correspond to the
Australian school calendar. In 1996, the breaks occurred
from April 1 through 12, July 1 through 12, September 30
through October 11, and December 20 through January 31.
Mr. Condon was also awarded physical custody in Australia
for up to 15 days a month if he gave Ms. Cooper two
weeks’ notice.
5. The court found the older son Bayard had spent
two-and-a-half of his seven years outside of California,
and found no evidence of the children having local
friends or acquaintances their own age in California.
6. Spousal support would be reduced to zero if Ms. Cooper
was still in Los Angeles on December 31, 1998.
7. The court’s order specified: “Petitioner shall pay all
cost of transportation to transport the children from
Australia to Los Angeles and return or to transport
himself to Australia and return but may utilize the funds
in the trust to do so. Any frequent flyer miles
accumulated by the children shall be under the control of
the petitioner to be utilized for the cost of travel of
the children between Australia and Los Angeles and
return. On any flight where an adult traveler is
required to accompany one or both of the children,
petitioner shall obtain or pay the cost of such
accompanying traveler for the transportation from
Australia to Los Angeles. Respondent shall obtain or pay
the cost of the accompanying traveler from Los Angeles
returning to Australia.”
8. A motion for reconsideration may only be considered
before final judgment is entered and while the case is
still pending in trial court. (Betz v. Pankow (1993) 16
Cal.App.4th 931, 937.)
9. Filed with Mr. Condon’s motion for new trial were a
declaration from his Australian solicitor Jonathan Harris
raising as an issue the enforceability of the California
custody and visitation order in an Australian court; a
Memorandum of Advice from an Australian Family Law
expert, Francis Grant, regarding the implications of a
move-away order to Australia; and, a declaration and
supporting materials from Dr. Len Bergantino regarding
Parental Alienation Syndrome.
10. We recognize in an ordinary domestic child custody case
the supporting parent’s duty to pay child support remains
even if the other parent fails to obey the custody and
visitation provisions of the court’s order. (Moffat v.
Moffat (1980) 27 Cal.3d 645 [obligation to pay child
support is unaffected by custodial parent’s interference
with visitation].) The non-custodial parent instead is
required to use other remedies, generally a court order
compelling the custodial parent to obey the visitation
arrangements or risk sanctions from the court. To allow
non-custodial parents to unilaterally curtail child
support payments would risk their children’s well-being
and in many cases impose the burden of their support on
California taxpayers.
These considerations do not apply, however, when the
custodial parent has moved to a foreign country. If the
custodial parent disobeys the California visitation order
and defies the jurisdiction of the California courts, the
non-custodial parent lacks the ordinary remedy of seeking
an enforceable motion to compel in the California courts.
Furthermore, since the children now reside in a
country several thousand miles away, California taxpayers
no longer bear the risk the loss of child support
payments will leave them to the public dole.
Nonetheless, we offer this alternative remedy only as
a last resort and then only if the non-custodial parent
establishes to the California court’s satisfaction the
custodial parent is disobeying the custody and visitation
orders that court imposed, and furthermore the foreign
court has refused to enforce those California orders.
11. This appeal is based upon a settled statement under
California Rules of Court, rule 7. The settled statement
was established by stipulation of the parties, and
contains a narrative setting forth all trial testimony,
reporter’s transcripts for two trial days, the statement
of intended decision, the judgment on bifurcated issues,
and the other documents required by California Rules of
Court, rule 7(c). The purpose of a settled statement is
“to provide the appellate court with an adequate record
from which to determine contentions of error.” (In re
Marriage of Fingert (1990) 221 Cal.App.3d 1575, 1580,
citing Maria P. v. Riles (1987) 43 Cal.3d 1281, 1296.)
Under the doctrine of “implied findings,” when parties
waive a statement of decision expressly or by not
requesting one in a timely manner, appellate courts
reviewing the appealed judgment must presume the trial
court made all factual findings necessary to support the
judgment for which there is substantial evidence. (See
In re Marriage of Arceneaux (1990) 51 Cal.3d 1130;
Hogoboom & King, Cal. Practice Guide, Fam. Law, 16:215,
p. 16-42.1.) The Court of Appeal in In re Marriage of
Fingert, supra, rejected the doctrine of implied findings
where a settled statement served as the record. (In re
Marriage of Fingert, supra, 221 Cal.App.3d at p. 1580.)
Because the instant case is, like Fingert, based upon a
California Rules of Court, rule 7 settled statement, we
need not presume all factual findings necessary to
support the judgment were made.
12. According to Family Code section 3003, “`[j]oint legal
custody’ means that both parents shall share the right
and the responsibility to make decisions relating to the
health, education, and welfare of a child.” In their
article, To Move or Not to Move: Psychological and Legal
Considerations in the Relocation of Children Following
Divorce (1996) 30 Fam. L.Q. 305, Dr. Judith Wallerstein
and attorney Tony Tanke concur with the notion that joint
legal custody can be shared even if physical custody is
changed as a result of relocation. (Id. at pp. 320-321.)
13. A joint physical custody order does not require a child
to spend an equal amount of time with each parent. (In
re Marriage of Birnbaum (1989) 211 Cal.App.3d 1508,
1515.) Hogoboom and King comment extended visitation at
infrequent intervals may not be “reasonable” with regard
to infants or toddlers: “from a developmental
perspective, very young children should not be separated
from their primary caretakers for long blocks of time.”
(Hogoboom & King, Cal. Practice Guide, Fam. Law
7:486.1, p. 7-132.) Yet these two boys are no longer
“infants or toddlers” and presumably can maintain a
valuable relationship with their father which comes in
longer doses four times a year.
14. Family Code section 3011 was amended in 1996, and this
amendment became effective after the decision in the
instant case. The 1996 amendment expanded the categories
of abusers and recipients of abuse in subsection (b), and
added subsection (d) which considers the “habitual or
continual illegal use of controlled substances or
habitual or continual abuse of alcohol by either parent.”
(Fam. Code, 3011, subd. (d), as amended by Stats. 1996,
ch. 835 (A.B. 2474) and Stats. 1996 ch. 836 (S.B. 384)
1.5.)
15. The court considered such factors as his physical
violence, their mutual verbal violence, her drug-taking
and the amount of time the children spent with their
father.
16. Family Code section 3403 reads in part: “(a) A court of
this state which is competent to decide child custody
matters has jurisdiction to make a child custody
determination by initial or modification decree if the
conditions as set forth in any of the following
paragraphs are met:
“(1) This state (A) is the home state of the child at
the time of commencement of the proceeding, or (B) had
been the child’s home state within six months before
commencement of the proceeding and the child is absent
form this state because of removal or retention by a
person claiming custody of the child or for other
reasons, and a parent . . . continues to live in this
state.
“(2) It is in the best interest of the child that a
court of this state assume jurisdiction because (A) the
child and the child’s parents, or the child and at least
one contestant, have a significant connection with this
state, and (B) there is available in this state
substantial evidence concerning the child’s present or
future care, protection, training, and personal
relationships.”
17. Family Code section 3414 provides in part: “(a) If a
court of another state has made a custody decree, a court
of this state shall not modify that decree unless (1) it
appears to the court of this state that the court which
rendered the decree does not now have jurisdiction under
jurisdictional prerequisites substantially in accordance
with this part or has declined to assume jurisdiction to
modify the decree and (2) the court of this state has
jurisdiction.”
18. As the Kumar court noted, “Application of the provisions
of section 5163 [now 3414] to the instant case compels
the conclusion that New York has continuing jurisdiction
to modify its decree so long as [father] resides there
and continues to assert and exercise his
custody/visitation rights.” (32 Cal.3d at p. 700; see
also, Bodenheimer, Interstate Custody: Initial
Jurisdiction and Continuing Jurisdiction under the UCCJA
(1981) 14 Fam.L.Q. 203, 214-215.)
19. The Parental Kidnapping Prevention Act (28 U.S.C.
1738A, subd. (d)) states that “[t]he jurisdiction of a
court of a State which has made a child custody
determination consistently with the provisions of this
section continues as long as the requirement of
subsection (c)(1) of this section continues to be met and
such State remains the residence of the child or of any
contestant.”
20. Family Code section 3424 reads: “The general policies of
this part extend to the international area. The
provisions of this part relating to the recognition and
enforcement of custody decrees of other states apply to
custody decrees and decrees involving legal institutions
similar in nature to custody rendered by appropriate
authorities of other nations if reasonable notice and
opportunity to be heard were given to all affected
persons.”
21. Article 1 of the Convention reads: “The objects of the
present Convention are-[] . . [] b to ensure that
rights of custody and of access under the law of one
Contracting State are effectively respected in the other
Contracting States.”
22. Article 12 of the Convention states: “Where a child has
been wrongfully removed or retained in terms of Article 3
and, at the date of the commencement of the proceedings
before the judicial or administrative authority of the
Contracting State where the child is, a period of less
than one year has elapsed from the date of the wrongful
removal or retention, the authority concerned shall order
the return forthwith. The judicial or administrative
authority, even where the proceedings have been commenced
after the expiration of the period of one year referred
to in the preceding paragraph, shall also order the
return of the child, unless it is demonstrated that the
child is now settled in its new environment.” (Italics
added.)
Even under the Hague Convention, the court of the
requested state (here Australia) is not bound to order
the return of the child if the person opposing its return
establishes the parent requesting return “was not
actually exercising the custody rights at the time of the
removal or retention, or had consented to or subsequently
acquiesced in the removal or retention” or “there is a
grave risk that his or her return would expose the child
to physical or psychological harm or otherwise place the
child in an intolerable situation.” (Hague Convention,
art. 13, a and b.)
23. Regulation 16 of the Australian Family Law (Child
Abduction Convention) Regulations 1986 (Cth) reads as
follows:
“(1) Subject to subregulations (2) and (3), on
application under regulation 14, a court must make an
order for the return of a child:
“(a) if the day on which the application was filed is
less than 1 year after the day on which the child was
removed to, or first retained in, Australia; or
“(b) if the day on which the application was filed was
at least 1 year after the day on which the child was
removed to, or first retained in, Australia unless the
court is satisfied that the child is settled in his or
her new environment.
“(2) A court must refuse to make an order under
subregulation (1) if it is satisfied that:
“(a) the removal or retention of the child was not a
removal or retention of the child within the meaning of
these Regulations; [][][][] . . .
“(3) A court may refuse to make an order under
subregulation (1) if a person opposing return establishes
that:
“(a) the person, institution or other body making
application for return of a child under regulation 13:
“(i) was not actually exercising rights of custody
when the child was removed to, or first retained in,
Australia and those rights would not have been exercised
if the child had not been so removed or retained; or
“(ii) had consented or subsequently acquiesced in the
child being removed to, or retained in, Australia; or
“(b) there is a grave risk that the return of the
child to the country in which he or she habitually
resided immediately before the removal or retention would
expose the child to physical or psychological harm or
otherwise place the child in an intolerable situation; or
“(c) the child objects to being returned and has
attained an age and degree of maturity at which it is
appropriate to take account of the child’s views; or
“(d) the return of the child would not be permitted by
the fundamental principles of Australia relating to the
protection of human rights and fundamental freedoms.
“(4) For the purposes of subregulation (3), the court
must take into account any information relating to the
social background of the child that is provided by the
Central Authority or other competent authority of the
country in which the child habitually resided immediately
before his or her removal or retention.
“(5) The court to which an application for the return
of a child is made is not precluded from making an order
for the return of a child to the country in which he or
she habitually resided immediately before his or her
removal or retention only because a matter mentioned in
subregulation (3) is established by a party opposing
return.”
24. Furthermore, Family Law Regulation 23(8) states that
“[n]othing in this regulation precludes a court having
jurisdiction under the Act from receiving evidence of an
order made in any overseas jurisdiction (whether or not
such jurisdiction is a prescribed overseas jurisdiction)
that gives a person the right to have a child live with
him or her, or the right of custody of, access to or
contact with, the child.”
25. The Family Law Reform Act 1995 (Cth) went into effect on
June 11, 1996. The Reform Act fundamentally changed the
Family Law Act 1975 (Cth), especially with regard to the
concepts of custody and access. (The Laws of Australia:
Family Law (1993) Guardianship, Custody and Access,
17.7, 2.) Following the lead of the Children Act 1989
(UK), instead of custody orders, Australian courts now
issue parenting orders, which are further broken down
into residence orders, contact orders, and child
maintenance orders. (Ibid.) The stated purpose behind
the change is to “displace concepts of custody and access
which `carry ownership notions’ and which may lead to
`the belief that the child is a possession of the parent
who is granted custody.'” (Ibid.) There are not many
reported decisions interpreting the new statutory
language.
26. Section 70J(1)(b) replaced section 68(3)(b) which read:
“Where an overseas custody order is so registered, a
court in Australia shall not, where it becomes aware of
the order, exercise jurisdiction . . . unless: [] . .
.
“(b) the court is satisfied that there are substantial
grounds for believing that the welfare of the child will
be adversely affected if the court does not exercise
jurisdiction in the proceedings.” (Italics added.)
The Full Court of the Australian Family Court declined
to interpret the difference between “must not exercise”
and “shall not exercise,” or “child’s welfare requires”
and “child’s welfare will be adversely affected” in the
case of In the Marriage of Domroese and Leggett (1996) 20
Fam. L.R. 213, other than to say that the court would
have a “slightly different responsibility.”
27. Prior to oral argument in this case we asked the parties
to address the issue whether the California court’s order
regarding custody and visitation was enforceable in
perpetuity under Australian law, international treaties
or agreements.
28. There was evidence in the trial court Ms. Cooper was a
very successful artist in her native country and
furthermore that she had opportunities to advance her
career in France.