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Jane J. v. Superior Court  Summary

 

Opinion published on 6-5-15

 

Factual summary

 

In this writ petition, parties Mother and Father married and had two boys together.  The parties dissolved their marriage in 2009.  At that time the boys were ages seven and nine.  Mother lived in Wisconsin with the two children and Father was employed by the military and stationed in Hawaii.  In their martial settlement confirmed by the Wisconsin family court, Wife received primary custody over the boys.  The boys were in Mother’s care 92% of the time.  Thereafter Father was stationed in the Middle East and had little contact with the boys.  In 2012, the Wisconsin court granted Mother’s move-away to California.

 

In December 2013, Father returned to the United States and resided in Alabama.  One month later he filed a request to modify the 2009 Wisconsin custody order arguing Mother blocked his access to the children.  After a continuance, the court held a hearing on Father’s modification request in February 2015.  Father argued a change of custody was necessary for the boys to have a relationship with him. 

 

The court granted Father’s changed custody request.  It found Mother blocked Father’s access to the children and it was time for Father to have a parental role.  Most important, the court found the Wisconsin custody order was not a final order and it was unnecessary for Father to show changed circumstances.  The court declined Mother’s request the children stay in California until the school year finished.  Mother requested and received an immediate stay and thereafter filed her writ petition.

 

Dennis’s Analysis

 

The court of appeal started with the mandate custody decisions are reviewed for an abuse of discretion and whether the trial court did so here.  In answer to that question, the court of appeal determined the trial did not exercise its discretion properly. 

 

The error in this case had its ultimate genesis in the trial court’s misconceived notion it was not required to find changed circumstances.  A consequence of that “erroneous understanding of the applicable law,” the trial court discounted Father’s initial burden to address the disruptive impact of the out-of-state move-away.   The court was unable to weigh present with prior circumstances when it believed in error changed circumstances did not apply.  The court’s misapplication of the law prevented its consideration of the move’s effect on the children’s existing educational, physical, emotional, and familial relationships.  In essence the trial court’s failure to apply the correct standard flowed to and tainted the entirety of its analysis.

 

 

 

 

 

 

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