MCLE courses


Case of the Month Archive

January 2020

Trial court made assumptions unsupported by the evidence. . .


In reversal, Fourth District holds that trial court erred by determining that award of sole legal and physical custody to mother of the parties' severely disabled child meant that she was incapable of being sole or joint custodian of their two other children and by failing to recognize the bond between the three children.


In re Marriage of McKean

(October 16, 2019; ordered published November 8, 2019)

California Court of Appeal 4 Civil G055601 (Div 3) 41 Cal.App.5th 1083254 Cal.Rptr.3d 726, 2019 FA 1913, per O'Leary, PJ (Fybel and Ikola, JJ, concurring). Orange County: Hurwitz, J, reversed. For appellant: Richard Masson, CFLS, (949) 852-8121. For respondent: J. Michael Jacob, (714) 848-8817. CFLP §§G.27.5, G.138.39.


In 2004, Tanya McKean and her three daughters were in a car accident that killed the oldest daughter and left another daughter, Si., severely brain damaged. After litigation, that child received an award of $20,000 a month for her treatment, therapy, and caregivers. Tanya was awarded a $2.4 million settlement and the children's father, Scott, received $1.2 million in settlement. The accident proved to be equally destructive of Scott and Tanya's marriage. In June 2009, Scott filed for divorce.


In the years that followed, the parents repeatedly litigated their custody and visitation issues. Hurling accusations and recriminations at each other, they were completely unable to agree on anything relating to Si.'s care. In 2015, the trial court issued a custody order that gave Tanya sole legal custody of Si., with joint physical custody to Tanya and Scott, along with joint legal and physical custody of their other daughter, Sa., and their son, W.. At that time, the trial court noted that there was a bond between the three children and that Sa. And W. should spend equal time with both parents.


In 2016, Tanya sought a modification of the timeshare for all three kids, sole physical custody of Si., and various amounts of visitation for Scott. In response, Scott sought sole legal custody of Si., but maintenance of the existing physical custody orders for all three kids and the legal custody orders re Sa. and W. Alternatively, he asked for the appointment of a medical guardian to make decisions regarding Si.'s health care. Neither Scott nor Tanya asked to change the existing custody orders regarding Sa. and W..


In findings and orders after trial, the trial court found that Tanya and Scott were unable to co-parent Si., and that her medical needs made "parallel parenting" impossible. Moreover, the court said, the parents' inability to communicate was "terribly deleterious" to Si.'s best interests. The trial court further found that Tanya's having sole legal and physical custody of Si. would mean that she was incapable of having sole or joint custody of Sa. and W. An example of this, the lower court said, was Tanya's having left Sa. at a dance team workshop in Las Vegas (in the care of the dance teacher), while she rushed home to be with Si., who had had a seizure in Scott's care. The court also determined that there could be no bond between Si., Sa., and W. because of Si.'s condition and that any "bonding" would simply amount to Sa.'s and W.'s "parentification" of Si. when they were with her. The lower court noted that neither parent had asked for a custody change for Sa. and W., but determined that a change would be in their best interests. Accordingly, the trial court awarded sole legal and physical custody of Si. to Tanya, sole legal and physical custody of Sa. and W. to Scott, and visitation for each parent as arranged by them in writing.


Tanya appealed, and the Fourth District reversed.


We know what's best. . .
Tanya contended that the lower court's orders granting Scott sole legal and physical custody of Sa. and W. were an abuse of discretion because they were not supported by evidence of changed circumstances. The justices agreed. They noted that a trial court may not modify an existing final child custody order, such as these, without a finding that a significant change of circumstances shows that a modification would be in the child's best interests. The moving party, the panel continued, has the burden of showing how the circumstances have changed and why a modification would be in the kids' best interest; he or she must make a "'threshold showing of detriment'" (quoting Christina L. v. Chauncey B. (2014) 229 Cal.App.4th 731) before ordering a custody change as in the child's best interests. The justices explained that in determining what is in the child's best interests, the trial court must consider primarily the child's health, safety, and welfare, but also the preference for the child to have frequent and continuing contact with each parent, if consistent with the child's best interests.


Too much sua sponte, too little evidence. . .
The panel noted that the trial court had not been asked for a custody mod re Sa. and W., but made those orders sua sponte. It based that decision on only "one specific event," the incident in Las Vegas where Tanya left Sa. at the dance workshop. The trial court had reasoned that Tanya had simply abandoned Sa. there, which justified her losing custody of Sa. However, the justices disagreed. They pointed to evidence showing that Tanya had made sure that Sa. didn't have to miss her workshop by arranging for her trusted dance instructor to take care of her and bring her home. And, they commented that Tanya had done "everything a parent could be expected to do under the circumstances." Thus, that incident could not suffice as a showing of detriment justifying the lower court's custody change. Moreover, the panel continued, the evidence also showed that Tanya made sure that she spent an equal amount of time parenting Sa. and W. by hiring nursing help to care of Si. while she participated in their school and family activities. It showed that she made time for them to be alone with her and have her undivided attention every day, and had been a room mom at their elementary school. Equally important, Scott had not contended otherwise. Summing up, the panel concluded that there was no evidence that Tanya's responsibilities in caring for Si. and her medical needs had resulted in her inability to properly care for Sa. and W.


More than one way to bond. . .
Tanya also argued that the lower court failed to properly consider the bond between the kids or Sa. and W.'s interests in the stability of their current custody arrangement. The panel agreed. They noted that the trial court failed to address the harm that Sa. and W. might suffer by losing Tanya as a custodial parent. And, as they had already stated, there was no evidence that the two had been detrimentally shortchanged by the time that Tanya spent caring for their sister. The panel noted that trial courts should not make orders separating siblings unless there is compelling evidence that the circumstances require it. Here, there was no such evidence; there was only the trial court's speculation regarding the effect that Si.'s medical condition had on the kids' ability to bond with her. Moreover, there was no evidence that the bond was simply a parentification relationship. The justices reminded the lower court that "a disability is not automatically evidence of compelling circumstances" that require a custody change. Here, the testimony had shown that Si. was able to recognize her parents, appreciate her social surroundings, and feel emotions such as happiness and fear; Si.'s cognitive state was that of a one year old to 18-month-old child. Given all that, the justices found that the trial court failed to apply the proper legal standard and had made assumptions that were not supported by the evidence. Accordingly, the justices reversed the order granting sole legal and physical custody of Sa. and W. to Scott, and reinstated the former order as to their custody.





In referring to this state's policy against separating siblings, absent compelling circumstances, the justice cite In re Marriage of Heath (2004) 122 Cal.App.4th, 18 Cal.Rptr.3d 760, where the Second District held that the trial court erred by separating two brothers based on the assumption that the autism of one by would negatively impact the other. The panel there noted that no custody evaluation had been done, no expert testimony ad analyzed the impact that the autism had on the non-autistic brother, and no proof of compelling circumstances had been offered to support the trial court's order. The justices determined that a "real analysis" of the relationship between the brothers was needed, and since that had not happened, the order splitting custody had to be reversed. Similarly, in McKean, there had not been a custody evaluation, although there was expert testimony. And, as in Heath, the justices here caution trial courts not "to judge a familial relationship based upon a preconceived notion of what a 'normal' sibling relationship looks like."


This case involves the disability of a child and its effect on a custody order. However, it has long been the rule that a trial court must not treat a parent's physical handicap as prima facie evidence of his or her unfitness, but must consider the parent's actual capabilities in determining what is in the child's best interests. In In re Marriage of Carney (1979) 24 Cal.3d 725, 157 Cal.Rptr.383, after the parents separated, they agreed that the father would have custody of their two sons. In 1976, the father was in a serious automobile accident that left him a quadriplegic. Meanwhile, the mother had been living in New York since the separation and had not seen the children for five years. She flew to California to attend the 1977 disso trial, where the trial court ordered that custody be awarded to her because the father's physical handicap rendered him unable to have a "normal relationship with his sons." The father appealed, but the appellate court affirmed in an unpublished opinion. The California Supreme Court granted review, and unanimously reversed. The high court found that a trial court may not rely on a parent's physical handicap as prima facie evidence of parental unfitness or of probable detriment to the child. Instead, the court should inquire into the parents' "actual and potential physical capabilities," the adaptations that the disabled parent and other family members have made, and whether the handicap would actually have a substantial negative impact on the children's best interests. Concluding that the lower court failed to make such an inquiry, the Supremes reversed the custody order as an abuse of discretion. Note that the Carney decision has been codified in Fam C §3029 since January 1, 2011. And it was followed in Manela v. Superior Court (Manela) (2009) 177 Cal.App.4th 1139, 99 Cal.Rptr.3d 736, where the appellate court held that a father's right to privacy with regard to his medical records was outweighed by the state's compelling interest in protecting a child's best interests. The justices found that it was "vitally important" for the trial court to obtain all possible information about a parent's medical condition and its potential to adversely affect his or her ability to care for the child. Because the father's alleged seizure disorder was relevant to those interests, the trial court should consider it before making any custody orders.



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