California Court Denies Custody to Mother, Citing Her Efforts to Alienate Father from Child

“This case presents an issue that would vex Solomon himself.” That’s how the Fourth District Court of Appeals described In re Marriage of Keith, a child custody case that ultimately turned on the parents’ efforts (or lack thereof) to facilitate their daughter’s relationship with each other.Holly and Keith married in 2004, had a child (Daughter) in 2005 and separated a year later. Unbeknownst to Keith, Holly and Daughter then moved to Arizona. Holly also obtained a restraining order against Keith, accusing him of physical abuse. An Orange County court later order quashed the restraining order and required her to return to California.

Back in California, a court granted Holly a new restraining order against Keith as well as sole legal and physical custody of Daughter. Keith completed a court-ordered batterer’s intervention program and was permitted monitored visits with Daughter. After the couple divorced in 2008, Holly sought permission to move back to Arizona with Daughter. Keith opposed the move, claiming that Holly had sought to isolate him from Daughter and destroy their relationship, first by claiming that he had assaulted Holly, then by moving “surreptitiously” from Irvine to La Quinta and finally by seeking to move to Arizona.

In a child custody evaluation completed prior to trial, Dr. W. Russell Johnson recommended that Holly be granted primary physical custody – with Keith being granted “liberal” visitation rights – if she remained in California. If Holly were to move Arizona, however, Johnson concluded that Keith should be granted primary physical custody. In the latter situation, “[Daughter]’s best interests require that she be placed in her father’s physical custody because he is more likely than her mother to support her relationship with her non-residential parent,” Johnson determined. The trial court granted Keith primary physical custody.

The Fourth District affirmed the decision on appeal. The court explained that a trial court considering a custody issue has “the widest discretion to choose a parenting plan that is in the best interest of the child,” but must weigh the health, safety, and welfare of the child, as well as any history of abuse by one parent of the other. Because Holly had obtained a restraining order against Keith, the court said that there was a presumption that granting her primary physical custody was in Daughter’s best interest. Keith rebutted this presumption, however, by showing that he had completed the batterer’s intervention program and had not been accused of physical violence since that time.

He also showed that he would be in a better position to facilitate a relationship between Daughter and Holly if he were awarded primary custody, according to the court. “Substantial evidence supports the court’s findings that awarding primary physical custody to Keith would be in Daughter’s best interest, because it would assure her health, safety, and welfare, and because it would assure Daughter’s frequent and continuing contact with both parents,” the court explained, citing Holly’s previous moves to Arizona and La Quinta without notice to Keith.

It further noted that Keith’s home environment was more stable than Holly’s, and that he had a “larger and broader family support system in place.”

While it may not be possible in all circumstances, a couple considering divorce and related child custody issues can often avoid protracted and acrimonious litigation with alternatives such as mediation and collaborative divorce. With offices throughout the region, Bay Area divorce lawyer Lorna Jaynes provides innovative legal tools to resolve family law disputes.