ANA MARIE BURCHARD, Plaintiff and Appellant, v. WILLIAM GARAY, Defendant and Respondent, 42 Cal. 3d 531

Opinion BROUSSARD, J. This case concerns the custody of William Garay, Jr., age two and one-half at the date of trial. Ana Burchard, his mother, appeals from an order of the superior court awarding custody to the father, William Garay. As a result of a brief liaison between Ana and William, Ana became pregnant. Early in her term she told William that she was pregnant with his child, but he refused to believe that he was the father. William, Jr., was born on September 18, 1979.

After the birth, Ana undertook the difficult task of caring for her child, with the help of her father and others, while working at two jobs and continuing her training to become a registered nurse. William continued to deny paternity, and did not visit the child or provide any support. In the spring of 1980 Ana brought a paternity and support action. After court-ordered blood tests established that William was the father, he stipulated to paternity and to support in the amount of $200 a month. Judgment entered accordingly on November 24, 1980. In December of that year William visited his son for the first time.

In the next month he moved in with Ana and the child in an attempt to live together as a family; the attempt failed and six weeks later he moved out. William asked for visitation rights; Ana refused and filed a petition for exclusive custody. William responded, seeking exclusive custody himself. The parties then stipulated that pending the hearing Ana would retain custody, with William having a right to two full days of visitation each week. At the onset of the hearing Ana requested a ruling that William must prove changed circumstances to justify a change in custody.

William opposed the motion, arguing that the court need only determine which award would promote the best interests of the child. The court deferred ruling on the motion. The evidence at the hearing disclosed that William, Jr., was well adjusted, very healthy, well mannered, good natured, and that each parent could be expected to provide him with adequate care.

After hearing the evidence, the court issued a statement of decision in which it impliedly ruled that the changed-circumstance rule did not apply because “there has been no prior de facto nor de jure award of custody to either parent.” Applying the “best interests” test, it awarded custody to William. Its decision appears to be based upon three considerations.

The first is that William is financially better off—he has greater job stability, owns his own home, and is “better equipped economically ... to give constant care to the minor child and cope with his continuing needs.” The second is that William has remarried, and he “and the stepmother can provide constant care for the minor child and keep him on a regular

schedule without resorting to other caretakers”; Ana, on the other hand, must rely upon babysitters and day care centers while she works and studies. Finally, the court referred to William providing the mother with visitation, an indirect reference to Ana’s unwillingness to permit William visitation. Pursuant to the court order William took custody of the child on August 15, 1982. Ana appealed from the order, and sought a writ of supersedeas. The Court of Appeal, however, denied supersedeas and subsequently affirmed the trial court’s order. We granted a hearing in August 1984.

Ana did not seek supersedeas, and William, Jr., remained in his father’s custody pending this appeal. We begin with a brief

summary of our decision. The petition for hearing raised the question whether the changed-circumstance rule applies in a case such as this. We conclude that it cannot apply. The rule requires that one identify a prior custody decision based upon circumstances then existing which rendered that decision in the best interest of the child. The court can then inquire whether alleged new circumstances represent a significant change from preexisting circumstances, requiring a reevaluation of the child’s custody. Here there is no prior determination; no preexisting circumstances to be compared to new circumstances.

The trial court has no alternative but to look at all the circumstances bearing upon the best interests of the child. But although we conclude that the trial court correctly ruled that the case was governed by the best-interest standard, we find that it erred in applying that standard. The court’s reliance upon the relative economic position of the parties is impermissible; the purpose of child support awards is to ensure that the spouse otherwise best fit for custody receives adequate funds for the support of the child.

Its reliance upon the asserted superiority of William’s child care arrangement suggests an insensitivity to the role of working parents. And all of the factors cited by the trial court together weigh less to our mind than a matter it did not discuss—the importance of continuity and stability in custody arrangements. We therefore reverse the order of the trial court. Upon beginning a more detailed analysis, we first consider the function of the changed-circumstance rule in child custody proceedings.

In deciding between competing parental claims to custody, the court must make an award “according to the best interests of the child” (Civ. Code, § 4600, subd. (b)). This test, established by statute, governs all custody proceedings. (In re B.G. (1974) 11 Cal.3d 679, 695-696 [114 Cal.Rptr. 444, 523 P.2d 244].) The changed-circumstance rule is not a different test, devised to supplant the statutory test, but an adjunct to the best-interest test.

It provides, in essence, that once it has been established that a particular custodial arrangement is in the best interests of the child, the court need not reexamine that question. Instead, it should preserve the established mode of custody unless some significant change in circumstances indicates that a different arrangement would be in the child’s best interest. The rule thus fosters the dual goals of judicial economy and protecting stable custody arrangements. (In re Marriage of Carney (1979) 24 Cal.3d 725, 730-731 [157 Cal.Rptr. 383, 598 P.2d 36, 3 A.L.R.4th 1028]; Connolly v.

Connolly (1963) 214 Cal.App.2d 433, 436 [29 Cal.Rptr. 616].) “The change of circumstances standard is based on principles of res judicata.” (Sharp, Modification of Agreement-Based Custody Decrees: Unitary or Dual Standard? (1982) 68 Va.L.Rev. 1263, 1264, fn. 9.) The rule established in a majority of jurisdictions, which we here endorse, applies that standard whenever custody has been established by judicial decree. A minority of states limit the standard further, applying it only when custody was determined through an adversarial hearing.

No state, so far as we have ascertained, applies the changed-circumstance standard when there has been no prior judicial determination of custody. Ana argues that the trial court erred in failing to apply the changed-circumstance rule in the present case. But on close review of her argument it becomes clear that Ana does not claim that there has been a prior custody determination, and that the court should have examined only events which occurred subsequent to that determination.

Instead, she argues simply that because she has had custody for a significant period, she and William do not start on an equal basis; instead, he should have the burden of persuading the court that a change in custody is essential or expedient for the welfare of the child. We agree in substance with this argument: in view of the child’s interest in stable custodial and emotional ties, custody lawfully acquired and maintained for a significant period will have the effect of compelling the noncustodial parent to assume the burden of persuading the trier of fact that a change is in the child’s best interest.

That effect, however, is different from the changed-circumstance rule, which not only changes the burden of persuasion but also limits the evidence cognizable by the court. We illustrate this distinction by reference to In re Marriage of Carney, supra, 24 Cal. 3d 725, the case Ana cites when she contends that the changed-circumstance rule can apply without a prior custody determination. When William and Ellen Carney separated in 1972, they entered into a written agreement under which Ellen relinquished custody of their two sons to William.

In 1976 William was severely injured, his legs paralyzed, and the use of his hands and arms impaired. When in 1977 William filed for dissolution of the marriage, Ellen requested sole custody of the children, although she had not seen them nor contributed to their support since 1972. The trial court granted her request on the ground that William, because of his handicap, would be unable to have a normal father-son relationship with his boys. Our opinion first noted that the statutory preference for maternal custody of a child of tender years has been repealed; under Civil Code

section 4600 “the sole concern, as it should be, is ‘the best interests of the child.’” (P. 730.) That issue, we observed, arose here in a “special way” (ibid.), for although there had been no prior court order, Ellen was in effect asking for a change in an established mode of custody to which she had agreed. We therefore inquired whether William’s handicap represented a change in circumstances sufficient to justify a change in custody.

The trial court’s conclusion that William’s handicap would prevent him from raising his children properly, we found, was based not upon the evidence at trial, but upon a misunderstanding concerning the capabilities of handicapped persons, and a stereotyped view that a father must be able to engage in physical activities with his sons. We explained how handicapped persons can in fact engage in many activities with their children. But on a deeper level, we observed, “the stereotype is false because it fails to reach the heart of the parent-child relationship. ...

Its essence lies in the ethical, emotional, and intellectual guidance the parent gives to the child throughout his formative years, and often beyond. . . . [William’s] capacity to do so is entirely unrelated to his physical prowess: however limited his bodily strength may be, a handicapped parent is a whole person to the child who needs his affection, sympathy, and wisdom to deal with the problems of growing up.” (P. 739.) We therefore reversed the order depriving William of custody.

The Carney decision, it is clear, did not turn on any difference in result between the changed-circumstance rule and the best-interest standard. We spoke in terms of changed circumstances simply because William Carney’s injury occurred after he had held custody for a significant time. There is not the slightest suggestion that the best interests of the children required an award to the mother, and that she lost only because she did not also prove a significant change in circumstances.

In sum, Carney had nothing to say on the importance of protecting prior custody determinations by forbidding the courts from reconsidering the circumstances which led to those determinations. Instead, it spoke of the importance of protecting established modes of custody, however created, not by limiting the breadth of the evidence, but by requiring the noncustodial party to show that a change would be in the best interests of the child.

Consequently, we do not read Carney as requiring use of a changed-circumstance test in cases where there has been no prior custody determination, but as one affirming the importance of stability in custody arrangements, placing the burden upon the person seeking to alter a long-established arrangement. The contrary view of Carney—that it extends the changed-circumstance rule to protect a “de facto” custody—is in our opinion unsound, unworkable, and potentially harmful.

It is unsound because, absent some prior determination of the child’s best interests as of some past date, the courts have no warrant to disregard facts bearing upon that issue merely because such facts do not constitute changed circumstances. It is unworkable because, as we have explained, absent such a prior determination the courts have no established basis on which they can assess the significance of any change. And it is potentially harmful because it could compel the court to make an award inconsistent with the child’s best interest.

In most cases, of course, the changed-circumstance rule and the best-interest test produce the same result. When custody continues over a significant period, the child’s need for continuity and stability assumes an increasingly important role. That need will often dictate the conclusion that maintenance of the current arrangement would be in the best interests of that child. But there will be occasional cases where it makes a difference. Consider, for example, a case in which a couple separate, and in the emotional turmoil of the separation the less suitable spouse takes custody of the child.

In a later custody proceeding, the noncustodial parent may be able to prove that the custodial parent is unable to provide proper care, but not that his or her ability to do so has deteriorated since the separation. In such a case the changed-circumstance rule might require the court to confirm a custody not in the best interest of the child. Or, to take another example, a child may be born out of wedlock to a woman who for some reason is not able to give it suitable care.

The changed-circumstance rule would require the father, when he seeks custody, to prove not only that the mother is unsuitable, but that she has become more so since the baby’s birth. In this example, the changed-circumstance rule again might require the court to endorse a custodial arrangement harmful to the child. We conclude that custody in the present case should be decided on the basis of the best interests of the child without requiring William to prove in addition that changed circumstances render it essential that he receive custody.

We therefore turn to examine the decision of the trial court to determine whether it abused its discretion in deciding that the best interests of the child required it to award custody to William. The trial court’s decision referred to William’s better economic position, and to matters such as homeownership and ability to provide a more “wholesome environment” which reflect economic advantage.

But comparative income or economic advantage is not a permissible basis for a custody award. “[T]here is no basis for assuming a correlation between wealth and good parenting or wealth and happiness. ’ ’ (Klaff, The Tender Years Doctrine: A Defense (1982) 70 Cal. L. Rev. 335, 350; see Mnookin, Child Custody Adjudication: Judicial Function in the Face of Indeterminacy (1975) 39 Law. & Contemp. Probs. 226, 284.) If in fact the custodial parent’s income is insufficient to provide proper care for the child, the remedy is to award child support, not to take away custody.

The court also referred to the fact that Ana worked and had to place the child in day care, while William’s new wife could care for the child in their home. But in an era when over 50 percent of mothers and almost 80 percent of divorced mothers work, the courts must not presume that a working mother is a less satisfactory parent or less fully committed to the care of her child.

A custody determination must be based upon a true assessment of the emotional bonds between parent and child, upon an inquiry into “the heart of the parent-child relationship . . . the ethical, emotional, and intellectual guidance the parent gives to the child throughout his formative years, and often beyond.” (In re Marriage of Carney, supra, 24 Cal.3d 725, 739.) It must reflect also a factual determination of how best to provide continuity of attention, nurturing, and care.

It cannot be based on an assumption, unsupported by scientific evidence, that a working mother cannot provide such care—an assumption particularly unfair when, as here, the mother has in fact been the primary caregiver. Any actual deficiency in care, whether due to the parent’s work or any other cause, would of course be a proper consideration in deciding custody.

But the evidence of such deficiencies in the present case is very weak—the testimony of William, disputed by Ana, that on one occasion Ana left the child alone briefly while she cashed a support check, and that sometimes the child was delivered for visitation in clothes that were shabby or too small. But these matters are trivial. The essence of the court’s decision is simply that care by a mother who, because of work and study, must entrust the child to daycare centers and babysitters, is per se inferior to care by a father who also works, but can leave the child with a stepmother at home.

For the reasons we have explained, this reasoning is not a suitable basis for a custody order. The trial court recited other grounds for its order. One was that William was “better equipped psychologically” to care for the child. Ana has had emotional problems in the past, and reacted bitterly to the separation, but William’s conduct has not been a model of emotional maturity. After they separated, Ana objected to William seeing the child and did not communicate about matters involving the child.

But after William obtained custody pursuant to the trial court’s order, he proved equally obdurate to Ana’s visitation rights, leading the court to amend its order to spell out those rights. All of these grounds, however, are insignificant compared to the fact that Ana has been the primary caretaker for the child from birth to the date of the trial court hearing, that no serious deficiency in her care has been proven, and that William, Jr., under her care, has become a happy, healthy, well-adjusted child.

We have frequently stressed, in this opinion and others, 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 showing made in this case is, we believe, wholly insufficient to justify taking the custody of a child from the mother who has raised him from birth, successfully coping with the many difficulties encountered by single working mothers. We conclude that the trial court abused its discretion in granting custody to William, Sr., and that its order must be reversed.

We acknowledge the anomalous position of an appellate court, especially a supreme court, in child custody appeals. Over four years have passed since the trial court awarded custody to William.

Our decision reversing that order returns the case to the trial court which, in deciding the child’s future custody, must hold a new hearing and determine what arrangement is in the best interests of the child as of the date of that hearing. (See In re Marriage of Carney, supra, 24 Cal.3d 725, 741; In re Marriage of Russo (1971) 21 Cal.App.3d 72, 93-94 [98 Cal.Rptr. 501] and cases there cited.) Thus, the effect of our decision is not to determine finally the custody of William, Jr., but is to relieve Ana of the adverse findings of the trial court and of the burden of proving changed circumstances since the trial court order, and to make clear that in deciding the issue of custody the court cannot base its decision upon the relative economic position of the parties or upon any assumption that the care afforded a child by single, working parents is inferior.

The order is reversed. Bird, C. J., Reynoso, J., and Grodin, J., concurred. Justice Mosk’s concurring opinion restates Professor Sharp’s arguments in favor of the majority rule. (See conc, opn., pp. 548-550, citing Sharp, op. cit. supra, 68 Va.L.Rev. 1263, 1271-1288.) These arguments were not advanced to support, and do not support, an extension of the changed-circumstance standard to cases of de facto custody. California followed the minority standard from 1962, when Loudermilk v.

Loudermilk (1962) 208 Cal.App.2d 705 [25 Cal.Rptr. 434], was decided, until 1979 when Loudermilk was overruled by In re Marriage of Carney, supra, 24 Cal.3d 725, 731, footnote 4. The parties use the term “de facto custody” to refer to custody established without a court order. Strictly speaking, Ana’s custody of William, Jr., was “de jure,” since under Civil Code

section 197 as a matter of law an unmarried woman acquires sole custody of her child at birth when there is no presumed father. Ana suggests at one point that the paternity judgment is the critical event establishing custody, and that the trial court should have focused on whether circumstances had changed since rendition of that judgment. The custody of William, Jr., however, was not at issue in that proceeding; the stipulated judgment says nothing on the subject, and there is no showing that William, Sr., by agreeing to that judgment, acknowledged that Ana’s custody was in the best interest of their child.

The risk of harm to the child would be reduced, but not eliminated, by requiring a rather long period of custody before it becomes “significant” enough to invoke the changed-circumstances rule. Carney involved five years between custody and trial, but Speelman v. Superior Court (1983) 152 Cal.App.3d 124 [199 Cal.Rptr. 784] found a nine-month period sufficient. The present case involves a period of sixteen months if dated from the child’s birth, seven months if from the paternity judgment, and five months from the date of separation.

In theory, however, the duration between a prior custody determination and a later trial is immaterial to the application of the changed-circumstance rule. Once it has been determined that a particular custody serves the child’s best interests, a party seeking to change custody must show a change in circumstances, whether he brings his action two weeks after the determination or ten years later. The child’s need for and right to stability and continuity have been widely recognized. (See, e.g., Michael U. v.

Jamie B. (1985) 39 Cal.3d 787, 795, fn. 7 [218 Cal.Rptr. 39, 705 P.2d 365] (opn. of Broussard, J.); In re Marriage of Carney, supra, 24 Cal.3d 725, 730-731; Hafer v. Superior Court (1981) 126 Cal.App.3d 856, 866 [179 Cal.Rptr. 132]; In re Marriage of Levin (1980) 102 Cal.App.3d 981,988 [162 Cal.Rptr. 757]; Adoption of Michelle T. (1975) 44 Cal.App.3d 699, 706-707 [117 Cal.Rptr. 856, 84 A.L.R.3d 654]; Uniform Child Custody Jurisdiction Act, 9 West’s U. Laws.

Ann. (1979 ed.) Matrimonial, Fam. & Health Laws, comrs. note, p. 112; Musewicz, The Failure of Foster Care: Federal Statutory Reform and the Child’s Right to Permanence (1981) 54 So.Cal.L.Rev. 633, 647; Goldstein et al., Beyond the Best Interests of the Child (new ed. 1979) pp. 31-52; Fanshel & Shinn, Children in Foster Care (1978) pp. 477-478; Pike et al., Permanent Planning for Children in Foster Care (1977) pp. 1-2.) To avoid the danger that the changed-circumstances rule might dictate a result harmful to the child’s best interests, Justice Mosk’s concurring opinion suggests two possible ways to modify that rule.

The first is that “when the noncustodial parent shows that custody has remained unchanged but inadequate since its inception, he need prove only that a change is essential or at least expedient for the welfare of the child in order to obtain custody.” (Conc, opn., p. 550.) We assume that “welfare of the child” is equivalent to “best interests of the child.” If so, this proposal would permit the noncustodial parent to prevail by showing that a change in custody would promote the best interests of the child as demonstrated by either changed or unchanged circumstances.

So modified, the changed-circumstances test is identical to the statutory best-interests test. Justice Mosk’s second proposal would eliminate the changed-circumstances requirement entirely, even for cases in which custody was established by judicial decree. In all cases, he suggests, the noncustodial parent need only show “present necessity to change custody for the child’s welfare.” (Conc, opn., fn. 1, p. 551.) Again, this is analytically identical to the best-interests test.

We find it paradoxical that the concurring opinion would advocate applying the changed-circumstance test in a case of de facto custody, a setting in which that test had never been applied in the past, yet recommend that in future cases we consider abolishing any requirement for proof of changed circumstances and apply a standard logically identical to the best-interest test even when custody was established by judicial decree. Atkinson, Criteria for Deciding Child Custody in the Trial and Appellate Courts (1984) 18 Fam.L.Q. 1, 15.

Steinman, Joint Custody: What We Know, What We Have Yet to Learn, and the Judicial and Legislative Implications (1984) 16 U.C.Davis L.Rev. 739, 740. We suspect that any presupposition that single working parents provide inferior care to their children will in practice discriminate against women. Divorced men are more likely to remarry than divorced women, and far more likely to marry a nonworking spouse. Conduct by a custodial parent designed to frustrate visitation and communication may be grounds for changing custody. (Speelman v.

Superior Court, supra, 152 Cal.App.3d 124, 132.) During the six-week period when Ana and William lived together, Ana remained the primary caregiver, and the couple continued the daycare and babysitting arrangements Ana had made.