In Re Marriage of Birnbaum: Modifying Child Custody Arrangements by Ignoring the Rules of the Game

I. INTRODUCTION

Courts must often make difficult child custody decisions following the dissolution of marriages.’ In these instances, courts act not only as mediators between the parents and themselves, but also as mediators between the parents and the child. The courts’ goal in child custody suits is to determine the living arrangements that will most benefit the child. The issues involved are complex-mainly because courts must examine a variety of factors in making child custody decisions.

Typically, once trial courts issue custody orders, it is very difficult for appellate courts to modify them. This difficulty arises in modifying original custody orders because courts are required to adhere to strict requirements established by statutes and case law. These laws require the party requesting modification to show that it is in the best interests of the child to change the pre-existing custody arrangement, as well as to prove that there has been a change in circumstances. This Note examines Birnbaum v. Birnbaum (In re Marriage of Birnbaum),' in which a California Court of Appeal ignored these requirements. The Birnbaum court was able to evade these established rules because of the vague statutory definition of joint custody and the definition's effect on the standards for modification of such custody orders. In Birnbaum, the appellate court upheld the trial court's modification of the custody agreement by avoiding the "modification" requirements, and instead labeling the order a "rearrangement of the children's residential timetable." Legal analysis suggests, however, that this change in the parenting arrangement was, in fact, a modification, and that the court improperly avoided the strict laws governing modification of child custody agreements.

This Note examines and criticizes the Birnbaum decision. By not following the applicable judicial precedent and statutes, the Birnbaum court failed to advance the policy concerns underlying child custody laws. These laws were designed to guard the child's best interest by fostering stable custody arrangements as well as judicial economy. The author argues that courts, in child custody cases, should follow the statutorily and judicially defined modification requirements. These requirements, when correctly enforced, protect the important interests underlying child custody cases. To ensure that these policies are furthered, the author proposes that the California legislature adopt more precise definitions of joint custody and more specific limitations on child custody modification.

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