In re Marriage of Carney
157 Cal. Rptr. 383, 24 Cal.3d 725, 598 P.2d 36 (1979)

  • William and Ellen were married and had two kids. Then they separated.
    • Ellen willingly gave custody of the kids to William. This was an informal agreement, not backed by a court order.
    • William moved to California and started living with another woman named Lori. She acted as their stepmother.
  • A few years later, William was injured in an accident and was in a wheelchair with limited mobility. After he recovered, he filed for an official divorce from Ellen.
  • Ellen moved for an order awarding her custody of both children.
    • Ellen admitted that she had not visited the children once, nor contributed to their support in the five years since she separated from William.
  • The Trial Court granted the divorce and awarded custody of the children to Ellen. William appealed.
    • William argued that it was in the best interests of the children to remain with him.
    • The Trial Court gave great weight to Williams’ physical handicap and its presumed adverse effect on his capacity to be a good father.
      • The Court found that there could be no “normal relationship between the father and the boys” unless William engaged in vigorous sporting activities.
  • The California Supreme Court reversed.
    • The California Supreme Court noted that since the children had been living with William for five years, in order to justify a change in custody, there must be a persuasive showing of changed circumstances affecting the children.
      • Basically, the Court wasn’t considering the issue as if it were a brand new custody determination, but instead as if it were a modification to an existing custody order.
        • In general, in order to modify a custody order, there must be a material change in circumstances.
      • Ellen unsuccessfully argued that since there was never an official custody order, the Court should be making their decision de novo, and on a level playing field.
    • The Court evaluated Ellen and Williams’ relative situations and found that William made more money, had a larger house, and was able to spend more time with the children than Ellen was. That implied it was in the children’s best interests to remain with William.
    • The Court found that the Trial Court’s reliance on William’s physical handicap was impermissible.
      • “If a person has a physical handicap, it is impermissible for the court simply to rely on that condition as prima facie evidence of the person’s unfitness as a parent or of probable detriment to the child.”
      • The Court noted that custody determinations can only be made on the basis of conduct, not conjecture. The courts can’t just assume that there will be a detriment to the child, they have to actually look at what is really happening.