California Court Says Child’s Best Interests Served by Equal Co-Parenting Plan – In re Marriage of Erb

The ultimate goal in resolving child custody and co-parenting issues is to reach a resolution that is in the best interests of the child. In In re Marriage of Erb, California’s Fourth District Court of Appeals explained that sometimes that means limiting the amount of contact former spouses have with each other.

Mother and Father were divorced in February 2004. The parties agreed that they would share legal custody of their then two-year old daughter (Daughter) and that Mother would have primary physical custody over the child, while Father would keep visitation rights.

Four years later, Father asked that the arrangement be changed so that Daughter would spend Wednesday nights with him and that his time with her be increased gradually until both parents shared equal time. A trial court agreed to increase Father’s time with Daughter to a more limited extent. Mother retained primary physical custody.

Following further litigation, however, the trial court agreed to a co-parenting plan submitted by Daughter’s independent counsel in June 2011. The plan provided for equal sharing of time with Daughter by Mother and Father under a “2-2-5-5” arrangement. Mother got two days with Daughter, Father got the next two days, then Mother got five days with Daughter and Father got the next five days.

Based largely on input from Daughter’s attorney – who interviewed Mother, Father, Daughter, her step-parents and a number of other family members – the trial court ruled that it was in Daughter’s best interests to put an end to the contentious litigation between her parents that had then been going on for seven years. “[W]e can’t go on like this,” the court said simply. It noted that the 2-2-5-5 plan would both add stability to Daughter’s everyday life and limit the number of exchanges between Mother and Father in an effort to avoid further disputes.

Mother nevertheless appealed the decision, arguing that there had been no change in circumstances to support the court’s decision to modify the parties’ co-parenting plan. However, the appellate court upheld the trial court’s ruling.

“Under California’s statutory scheme governing child custody and visitation determinations, the overarching concern is the best interests of the child,” the Fourth District explained. Among those factors to be considered in determining the child’s best interests, according to the Court, are health, safety and welfare, abuse by one parent against the child or the other parent and the nature and amount of contact with the parents. Once a custody decision is made, a parent seeking to change the arrangement must show that there has been “some significant change in circumstances” requiring the change for the best interests of the child.

Here, the Court said that Father was not required to show a change in circumstances because he sought only to modify the terms of the co-parenting plan, not physical custody over the child. Indeed, the original trial court order provided for shared physical custody. Under the terms of the new co-parenting plan, the time divided between Mother and Father changed, but the custody situation did not.

The Court also ruled that there was substantial evidence to support the trial court’s finding that the new co-parenting plan was in Daughter’s best interests. The Court noted in particular that the plan was designed to put an end to “the seemingly never-ending litigation and other conflicts between Mother and Father” by limiting the number of non-school exchanges of the child.

This case is a good example of just how complicated and time consuming it can be to resolve child custody and co-parenting arrangements. Parties to a divorce can limit the extent of these disputes – and work on maintaining a positive co-parenting relationship – through alternatives to litigation such as mediation and Collaborative divorce. With offices throughout the Bay Area, California divorce lawyer Lorna Jaynes provides innovative legal tools to resolve family law disputes without the bitterness and acrimony engendered by the adversarial process.