Winternitz v. Winternitz CA4/1
185 Cal. Rptr. 3d 458, 235 Cal. App. 4th 644 (2015)
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Rule of Law:
A trial court has the discretion to admit a custody evaluator's report despite procedural flaws, as such flaws affect the weight of the evidence, not its admissibility. In a child custody relocation case, a court does not abuse its discretion by placing controlling weight on one 'LaMusga' factor, such as which parent is more likely to foster the child's relationship with the other parent, after considering all relevant factors.
Facts:
- Tami Winternitz (Mother) and Dr. William Winternitz (Father) divorced, and a 2005 court order found that Mother had engaged in alienating tactics against Father but still permitted her to relocate with their children to San Diego.
- In response to the 2005 move, Father relocated his orthopedic surgery practice to San Diego to remain close to his children.
- Years later, Mother sought a court order to move again, this time with their only remaining minor child, Jamison, from San Diego to Chico, California.
- Mother's stated reasons for the proposed move were to live with her new fiancé, Evan Said, who had been rehired for a job in Chico.
- Mother also claimed she was unable to find employment in San Diego and could not afford a home there, having already purchased one in Chico.
Procedural Posture:
- Tami Winternitz (Mother) filed a move-away request in the San Diego County Superior Court, seeking to relocate with her minor child, Jamison, to Chico, California.
- William Winternitz (Father) opposed the request and filed a motion to modify custody, seeking to become Jamison's primary physical custodian.
- The family court appointed Dr. Robert Simon as a child custody evaluator.
- Dr. Simon submitted his evaluation report, recommending that the move-away request be denied and that primary custody be granted to Father.
- During the evidentiary hearing, Mother made an oral motion to strike Dr. Simon's report, alleging it was procedurally defective and biased.
- The trial court denied the motion to strike the report, ruling that the issues raised went to the evidence's weight, not its admissibility.
- After the hearing, the trial court denied Mother's move-away request and granted Father primary physical custody of Jamison.
- The trial court also denied Mother's separate requests for an award of need-based attorney fees.
- Mother (appellant) appealed the custody order and the denial of attorney fees to the California Court of Appeal.
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Issue:
Did the family court err in denying the mother's request to relocate with her child by admitting a flawed custody evaluation report and prioritizing the child's relationship with the father over other factors, including the child's stated preference?
Opinions:
Majority - McIntyre, J.
No. The family court did not err in denying the mother's request to relocate. Procedural flaws in an expert's report go to the weight of the evidence, not its admissibility, and the court properly exercised its discretion in weighing the child's best interests under the 'LaMusga' framework. The court found that objections to the custody evaluator's report, such as procedural mistakes and missing records, were matters for cross-examination and went to the weight of the evidence, not its fundamental admissibility. The trial court correctly applied the two-step 'LaMusga' analysis by first finding that Father met his burden of showing the move would cause substantial detriment to his relationship with Jamison. It then properly conducted a best-interests analysis, and it was within the court's discretion to give controlling weight to the factor of which parent would better facilitate an ongoing relationship with the other, especially given the prior judicial finding of Mother's alienating behavior. Finally, the court fulfilled its statutory duty by considering Jamison's stated preference to move, even though it ultimately ruled against that preference in its determination of her best interests.
Analysis:
This decision reinforces the significant discretion afforded to trial courts in contentious child custody relocation cases. It clarifies that procedural missteps by a court-appointed evaluator do not automatically render the evaluator's report inadmissible; instead, they become grounds for impeachment and are factored into the weight the court gives the evidence. The case also underscores the principle from 'In re Marriage of LaMusga' that a parent's presumptive right to move is subordinate to the court's power to prevent a move that is detrimental to the child's welfare. The ruling signals that in cases with a history of parental alienation, courts may give determinative weight to which parent is more likely to foster the child's relationship with the other parent.
