J.M. v. G.H.

228 Cal. App. 4th 925, 175 Cal. Rptr. 3d 371, 2014 WL 3854227, 2014 Cal. App. LEXIS 710
CourtCalifornia Court of Appeal
DecidedJuly 29, 2014
DocketNo. B242123
StatusPublished
Cited by29 cases

This text of 228 Cal. App. 4th 925 (J.M. v. G.H.) is published on Counsel Stack Legal Research, covering California Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
J.M. v. G.H., 228 Cal. App. 4th 925, 175 Cal. Rptr. 3d 371, 2014 WL 3854227, 2014 Cal. App. LEXIS 710 (Cal. Ct. App. 2014).

Opinion

Opinion

JOHNSON, J.

J.M. appeals from a judgment on reserved issues granting joint physical custody of his son Joey to J.M. and G.H., Joey’s mother, and allowing her to take Joey with her to live in Israel during the school year. Finding no abuse of discretion, we affirm.

BACKGROUND

We use the parties’ first names to simplify and humanize our opinion in this intensely contested custody case. (In re Marriage of Smith (1990) 225 Cal.App.3d 469, 475, fn. 1 [274 Cal.Rptr. 911].)

J.M. (Jonathan) and G.H., an Israeli citizen, met in 1996 and soon were living together. They never married. When G. gave birth to Joey in September 2005, Jonathan signed a voluntary declaration of paternity and the birth certificate. The couple separated in late 2007, when Joey was two, and Jonathan moved into another house in the summer of 2008, while G. and Joey were in Israel visiting G.’s family. In July 2008 Jonathan married Michelle H., and lives with her and her son, his stepson Ryan. Before Michelle H., Jonathan had been married to three other women, and Jonathan has three adult children from two of those earlier marriages.

In July 2009, when Joey was nearly four, Jonathan filed a petition to establish his paternity of Joey, requesting joint legal and physical custody and reasonable visitation. In October 2009, he filed an order to show cause requesting sole legal custody and shared physical custody (with primary custody to him), after G. and Joey returned from a summer 2009 trip to Israel three weeks after the agreed-upon date of September 3, 2009. In response, G. requested sole legal and physical custody of Joey, with the right to move to Israel with Joey, and reasonable visitation for Jonathan in the United States and Israel. She represented that her visa to remain in the United States was set to expire in November 2010.

After a hearing in March 2010, the trial court granted the paternity petition as to status only, reserving all other issues. The parties agree that a June 2010 interim order divided physical custody equally. Appellant’s appendix (Jonathan’s) contains an unsigned (and explicitly temporary) custody order proposed by G. In June 2011, the parties stipulated to the appointment of a privately compensated temporary judge for all purposes.

[929]*929On March 2, 2012, after 12 days of trial, the trial court issued a 29-page amended statement of decision on the bifurcated issues, making factual findings, awarding Jonathan and G. joint legal and physical custody of Joey, and allowing G. to relocate to Israel with Joey during the school year. Joey was to live with Jonathan during most of the summer and longer school holidays, as well as during visits in Israel.

The court acknowledged that Jonathan and G. shared custody equally, both were competent parents, and Joey was well bonded to both. Two parents living in the same location would be ideal for Joey, but as G. had indicated her intent to relocate, the standard was Joey’s best interest under those circumstances. “[S]o long as the court does not find that the party intending to move is moving in bad faith, instead of assessing what would be the very best circumstances for the child, the court must determine how the child’s interest will best be served by that living arrangement which causes him the least detriment after one parent moves away.” Based on the evidence, including an expert child custody evaluation by Dr. Anthony Aloia and the testimony at trial, both Jonathan and G. were “fully adequate to care for [Joey’s] organizational, educational[,] social, emotional, physical and moral needs,” so “the tipping factor becomes comparing the level of detriment the child will suffer under each scenario.”

G. had returned late from Israel with Joey after the summer of 2009 because G.’s father was diagnosed with cancer, and she wished to stay with her family until tests were completed. While the court found this “entirely reasonable,” it rioted that G. could also have accommodated Jonathan’s offer to fly to Israel and bring Joey back. G. showed “a sense of ownership of the child on her part and her determination to do things the way she chose rather than acting more cooperatively.” Nevertheless, this did not damage Joey. Further, there was no showing that G. would not comply with future orders, as she did return with Joey after her family obligations were met and allowed Jonathan immediate time with Joey, and had always returned with the child each time they had traveled to Israel.

The court also found that as soon as the parties separated in late 2007, G. expressed her desire to return to Israel and her family to raise Joey. Still, Jonathan paid for a lawyer to help G. get a green card and permanent resident status in the United States. When the support she received from Jonathan fell below what she considered adequate, she decided to return to Israel and stopped her efforts. G.’s current immigration status requires her to leave the United States when the custody case is concluded.

The court found that G. was not negligent in abandoning her immigration claim, because “the claim itself was probably based on false contentions.” G. [930]*930admitted that she had falsely stated that she attended Tel Aviv University and had been a captain in the Israeli army (although she did serve). As her qualifying work was with one of Jonathan’s companies, he would be in a position to disclose the misrepresentations, and would use that power to control her. G. simply did not wish to remain in the United States as a permanent resident, and had good faith reasons to relocate to a country where she could obtain employment independent of Jonathan, be near her family for emotional and financial support, and find a better environment to raise Joey.

The court found a variety of events (including the false statements on the visa application) showed G.’s “situational ethics and [that she] will deviate from truth if it is in her interest.” G. had taken prizes that she had not won at a charity picnic, and encouraged Joey to say he was six to get on a ride at Legoland when he was a few months shy of that age. None of these events, however, was directly related to her parenting. Joey, who had been primarily raised by G., had been troubled by lying about his age, which showed that he had internalized a positive value system.

An earlier order had required G. and Jonathan to use a Web site (Ourfamilywizard.com) to communicate about Joey. While G. used the Web site less than Jonathan and often did not respond to his frequent and detailed e-mails, the court found “generally credible that the email system was simply too difficult for her in the way it was established,” given her dyslexia and ADHD (established by an expert’s declaration). The parties’ tendency to “engage in mutual verbal combat” was not inflicted on or shared with Joey. G.’s and Michelle’s mutual animosity showed no alienation of Joey or attempts to interfere with each other’s relationship with him.

Jonathan also intended to move away from his house in Beverly Hills (to Santa Barbara, La Jolla, or Carmel), which diminished his ability to provide stability in physical surroundings. Whichever parent Joey lived with, Joey would experience a new home, school, and friends. A move to Israel would reduce his time with his stepbrother Ryan, and the court weighed that detriment against the greater detriment if he were not permitted to relocate to Israel with his mother.

The court found no evidence that G. had mental health or disability issues causing harm to Joey.

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Cite This Page — Counsel Stack

Bluebook (online)
228 Cal. App. 4th 925, 175 Cal. Rptr. 3d 371, 2014 WL 3854227, 2014 Cal. App. LEXIS 710, Counsel Stack Legal Research, https://law.counselstack.com/opinion/jm-v-gh-calctapp-2014.