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FLORES V. CRUZ, 1998 Supreme Court of the Appeal from the Superior Court of OPINION SIGUENZA. [1] This
appeal arises out of the Superior Court's determination that sole legal custody
of a child should be awarded to the Appellee, Maria Annie Flores. The trial
court based its determination on a finding that the Appellant, Harold J. Cruz,
lacks the maturity to share legal custody of the minor child and that parties
are unable to communicate. Mr. Cruz contends otherwise asserting the Superior
Court's decision regarding his immaturity was based on events occurring prior to
the birth of his son. He also argues that inadequate consideration was given to
his behavior as a father when determining his custodial rights. He further
contends that the communication and cooperation difficulties are principally on
the side of the mother, Ms. Flores. [2] We
agree. The trial court when considering Mr. Cruz's sexual behavior, did not
analyze how his past conduct adversely affected the welfare of the child. Nor
was an examination conducted weighing his past sexual affairs before the birth
of his child against his more recent behavior as a father. We further decide
that the communication difficulties, largely attributable to Ms. Flores, were
not considered and that the trial court failed to weigh this factor in its
analysis. Accordingly, we reverse and remand this matter back to the trial court
for consideration consistent with this opinion. PROCEDURAL AND FACTUAL BACKGROUND [3] Harold
J. Cruz and Maria Annie Flores were engaged to be married over an eight-month
period. The engagement subsequently ended when Ms. Flores discovered that Mr.
Cruz had several sexual relationships with other partners, resulting in several
pregnancies. At the end of her relationship with Mr. Cruz, Ms. Flores was also
pregnant. She eventually gave birth to Tyler Jose Flores on June 20, 1994. [FN1] FN1. Mr.
Cruz attempted to be present when the child was born, but was removed from the
labor room by hospital security per Ms. Flores's request. [4] On July
28, 1994, Ms. Flores filed a complaint in which she sought sole custody of the
child as well as a restraining order against Mr. Cruz based on allegations that
he physically abused her in March of 1994. [FN2] In his answer and counterclaim,
Mr. Cruz prayed for joint legal custody with physical custody to be awarded to
mother, reasonable visitation rights to the father, and child support of $150
per month. FN2.
Despite allegations of physical abuse in March, 1994, such allegations were not
made until July 28, 1994. These allegations were never substantiated.
Accordingly, the trial court's reference to the allegations should not have had
any bearing on the proceeding. [5] On
August 5, 1994, an Order to Show Cause hearing was conducted based on harassment
allegations of Ms. Flores [FN3]. Consequently, on August 12, 1994, mutual
restraining orders were issued to keep the parties from "molesting,
annoying, or disturbing the peace of each other." On September 27, 1994, a
hearing was held at which time Mr. Cruz's visitation hours were increased. At a
subsequent hearing held on February 1, 1995, the court ordered pendente lite
joint custody and further increased Mr. Cruz's visitation. Mr. Cruz and Ms.
Flores have since shared joint legal custody of FN3. During
trial, Ms. Flores illustrated Mr. Cruz's harassment prior to the restraining
order as follows: she stated "but prior to that (the restraining order)
Every little thing, whether it be a bag or the clothes or the food
or-everything, where my child was going, what I was doing, uhm ... if he had
trouble finding a sitter for Tyler, he would call me up." By Ms. Flores's
own accounts, the harassment was predominately in relation to the child.
Transcript at 13 (February 12, 1997). [6] During
the period of temporary joint legal custody, Ms. Flores alleges three incidents
that were cumbersome when dealing with Mr. Cruz, indicating an inability to
cooperate. [FN4] Ms. Flores and Mr. Cruz were apparently able to solve these
issues and otherwise cooperate as to issues surrounding FN4. One
incident related to the child's birthday party. During the party, Mr. Cruz
failed to tell Ms. Flores that he was aware that the police were planning to
call her in reference to one of the previous harassment incidents. Ms. Flores
felt that he should have notified her and that perhaps his motives for
participating in the party were questionable as he may have attended just to
gain her good graces before the police called. Another incident occurred when
Mr. Cruz attempted to trade visitation days with Ms. Flores as he thought that
he was scheduled to have Tyler on Mother's day. Ms. Flores regarded the incident
as harassment because she misunderstood what Mr. Cruz was attempting to do.
Transcript at 27 (February 12, 1997). The final incident occurred when Mr. Cruz
returned [7] The
trial court conducted a custody hearing on February 12, 1997. After taking
testimony from both parties and hearing argument, the court awarded sole legal
custody to Ms. Flores. Consequently, a timely Notice of Appeal was filed. ANALYSIS [8] This
court has jurisdiction over this matter pursuant to 48 U.S.C. § 1424-3(d)
(1984) and 7 GCA § 3107(b) (1994). The court reviews custody matters keeping in
mind the best interest of the child. 19 GCA § 8404 (1994). The factual findings
of the trial court are reviewed for an abuse of discretion. Farrell v. Farrell,
819 P.2d 896, 898 ( I. [9] Although
case authority does not appear to fix a standard definition of joint custody, it
is generally understood as a custody arrangement that places both legal and
physical custody of a child in the hands of both parents. See In Re Marriage of
Lampton, 704 P.2d 847, 849 (Colo.1985) (en banc); See also In Re Marriage of
Burham, 283 N.W.2d 269, 271 ( [10] The
principal custody statute, 19 GCA § 8404 states in pertinent part: In actions
for divorce, separation, annulment, separate maintenance, or any other
proceeding where there is at issue a dispute as to the custody of a minor child,
the court may, during the minority of the child, make such order for the custody
of such minor child as may seem necessary or proper. In awarding the custody,
the court is to be guided by the following standards, considerations and
procedures: (a)
Custody should be awarded to either parent according to the best interest of the
child. (b)
Custody may be awarded to persons other than the father or mother whenever such
award serves the best interest of the child. Any person who has had de facto
custody of the child in a stable and wholesome home and is a fit and proper
person shall prima facie be entitled to an award of custody. While 19 GCA
§ 8404 does not expressly provide for the issuance of joint legal custody, the
language of the statute reflects the legislature's intent to accord the trial
court broad discretion in determining custody. The legislature gave the trial
court discretion to "make such order for the custody of such minor child as
may seem necessary or proper." [11] Not
only is joint custody permitted by The father
and the mother of a legitimate unmarried minor child are equally entitled to its
custody, services and earnings. If either the father or mother be dead or unable
or refuse to take the custody or has abandoned his or her family, the other is
entitled to its custody, services and earnings. Other
sections of Title 19 further support this preference for joint custody. 19 GCA
§ 4107 (1994) states "[t]he husband and father, as such, has no rights
superior to those of the wife and mother, in regard to the care, custody,
education, and control of the children of the marriage, while such husband and
wife live separate and apart from each other." Likewise, the legislature's
stated purpose in the series of statutes that address the Termination of the
Parent-Child Relationship, provides in pertinent part "[i]mplicit in this
Article is the philosophy that wherever possible family life should be
strengthened and preserved and that the issue of severing the parent-child
relationship is of such vital importance as to require a judicial
determination...." 19 GCA § 4301 (1994). [12] Given
the trial court's latitude granted through the broad discretionary language of
19 GCA § 8404 and the legislature's preference toward inclusion of both parents
in the lives of their children, this court determines that not only can an award
of joint legal custody be granted by Guam's trial courts, it is preferred. This
preference, however, is always secondary to the best interest of the child. II. [13] In
ruling upon this matter, the trial court stated that Cruz's past was "not
determinative in this custody issue." [14] We
agree that trial courts may look to the sexual behavior of a party for purposes
of determining custody. See Bialac v. Bialac, 240 Cal.App.2d 940, 50 Cal.Rptr.
12 (1966); [15] It is
uncontested that Harold Cruz's past behavior as a fiancé is both egregious and
immature. However, in the context of determining custody, we cannot characterize
this behavior in the same manner. Our review of the trial court's order
indicates that Cruz's conduct was never reviewed in context as it pertains to
the child's welfare. Further, the record reveals that no evidence was presented
indicating that Cruz's sexual behavior which occurred before the birth of [16]
Assuming Cruz's past behavior was shown to have an adverse effect on the child's
welfare, the analysis as presented would not be acceptable to this court. We are
disturbed by the absence of consideration of Cruz's level of maturity since the
birth of his son and during the period of temporary joint custody. We believe
such an examination would be a more accurate and important assessment of his
ability to raise his son. [17]
Maturation is a process of development that occurs over time. While Cruz's
sexual behavior may have demonstrated a want of maturity in the eyes of the
trial court, this conduct was representative of a period of time prior to the
child's birth. As to the time period after the child's birth, the record,
although quite sparse, provides some indication of growing maturity on Cruz's
part. For instance, contention has occurred because the child was dressed in
girl's clothing. Mr. Cruz explained that due to the visitation schedules,
clothing he had provided for his son was not returned. Instead of arguing over a
matter which he considered petty, he solved the issue by taking steps ensuring
that he always has proper clothes on hand for his son and resolved a source of
discord between the parties. Such action of avoiding conflict shows good
judgment and maturity. [18] As
stated earlier, the record is limited as to affirmative examples of Mr. Cruz's
maturity. The record is also silent as to whether Mr. Cruz's sexual promiscuity
has continued since the birth of his son. As these issues directly pertain to
the best interests of raising [19] In sum,
the trial court erred by finding Mr. Cruz's past sexual behavior was indicative
of his maturity. Likewise, the trial court's characterization of Mr. Cruz, again
based on his sexual conduct, as the least responsible of the parties cannot be
supported by the record. None of these findings has been shown to adversely
affect the welfare of the child. In addition, the court's consideration of this
behavior appears to be incomplete as no consideration was given to Cruz's
maturity after the child's birth. III [20]
Generally, agreement and cooperation between the parties are the foundations
upon which any joint custody arrangement rests. In Re Marriage of Lampton, 704
P.2d 847, 849 (Colo.1985) (en banc); In Re Marriage of Burham, 283 N.W.2d 269,
275 ( [21]
However, "[t]he ability to cooperate does not require the absence of
tension or hostility...." 1 Jeff Atkinson, Modern Child Custody Practice §
6.09 (1986). Instead, it requires "that the parents put the interest of the
child before their own interests (or anger)." [22] Whether
the parties could cooperate and communicate was the factor that the trial court
considered when it awarded sole custody to Ms. Flores. The court specifically
found that the relationship between the parents was neither open nor free. The
Superior Court also stated in its ruling that "[t]he parties have
difficulty communicating and cooperating, and their relationship is less than
amicable." [23] Our
review of the record leads to a different conclusion. While it is clear that Ms.
Flores does not wish to continue to collaborate with Mr. Cruz in raising their
child, the custody hearing was held to determine the best interests of the child
and not that of the parents. She contends that "because of the past
problems in the adult interpersonal relationship of Appellant Cruz and Appellee
Flores, that chances for good and open communication are not present because of
continuing negative feelings between the parties." Appellee Brief, Pg. 9.
However, her actions belie her words. Notwithstanding her feelings that Mr. Cruz
is untrustworthy and manipulative, the parents managed to cooperate, in limited
instances, throughout the duration of the pendente lite joint custody period
without court intervention. [24] Mr.
Cruz and Ms. Flores have demonstrated the ability to cooperate with one another
in matters regarding their son when the lines of communication have been opened.
This court is generally not concerned with how the parties feel about one
another. What is of consequence is that the parties are able to put their
personal differences aside and work for the benefit of their son. The record
reflects such an ability, despite the fact that it may be personally
disagreeable to Ms. Flores. For example, both parties testified that visitation
schedules were modified in order to accommodate each others work and travel
schedules. Significantly, successful modification of their schedules occurred
without attorney or court involvement. [25] In
Appellee's brief, it was stated "[a]s a result of this mistrust, she does
not want to be forced to sit down and make decisions with a person who has so
manipulated her." Appellee Brief, Pg. 4. The record is clear that Ms.
Flores' has acted consistent with this statement by trying to avoid contact with
Mr. Cruz. Her own testimony reveals Ms. Flores did not provide her address or
phone number to Mr. Cruz during the year preceding the hearing. Transcript at
28-29 (February 12, 1997). This was at a time when temporary joint custody was
in effect and both parents had decision making responsibilities for the child
and communication was essential to his welfare. We believe it is fortunate that
an emergency affecting [26]
Obviously, meaningful communication could not have taken place under such
conditions. Under any type of custodial relationship, let alone joint custody,
parents must engage each other in order to cooperate for the best interests of
the child. It is quite apparent that when the lines of communication have been
silent, it has been the result of Ms. Flores' refusal to open them. [27]
Alternatively, it is undisputed that Mr. Cruz "attempted to reconcile the
differences between himself and Plaintiff, but she was not receptive to such
efforts." [28] The
tension between Mr. Cruz and Ms. Flores is predicated on their failed
relationship. In Appellee's brief, it was contended "[a]nd it is the
destruction of the relationship and the complete lack of trust it created that
is the foundation of Appellee Flores's inability to feel comfortable in sitting
down with Appellant Cruz and trying to make major decisions regarding CONCLUSION [29] As
noted in the trial decision, "[i]t is well settled that joint legal custody
of a minor child is a desirable arrangement and is very effective in some
cases." .
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