|
, 2004 GUAM 8
No.
CVA03-003.
Argued
and Submitted Nov. 4, 2003.
Filed
May 11, 2004.
Appeal from the
Superior Court of
Guam
. Superior Court Case No. DM0419-02.
OPINION
OPINION
TYDINGCO-GATEWOOD, J.
1
[1]
The Defendant-Appellant, John W. Howerton (“Howerton”), appeals
from an order granting him joint legal and physical custody
of his minor child.
Howerton argues that the lower court erred in granting him joint
physical custody
but failing to order equal custodial time between him and the child's
mother, the Plaintiff-Appellee Noella Carter Howerton FN1
(“Carter”). Howerton further argues that in giving more custodial
time to Carter, the lower court erroneously applied the “tender
years doctrine.” We find that under a joint physical custody
plan, equal time, while preferred, is not required, and that in
considering deviation from an equal time arrangement, the trial court
may properly consider the best interests of the child.
We find that the custody
order was supported by substantial evidence. We further find that the
trial court did not apply the tender years doctrine in this case.
Accordingly, we affirm the lower court's decision.
FN1.
The case caption identifies the Plaintiff-Appellant as Noella Carter
Howerton. During a hearing regarding this matter, the
Plaintiff-Appellant informed the court that her name has been changed
to Noella Carter.
I.
[2]
The instant appeal arises out of a divorce-related dispute concerning custody
of the parties' minor child.
Carter and Howerton were married on
Guam
in 1998. Howerton is employed with the United States Army with the
rank of Lieutenant Colonel, and is the Inspector General for the Guam
National Guard. Carter is a senior flight attendant for Continental
Micronesia. Together they have one child
who was born on April 22, 1999. Carter has two other children
from previous relationships. Howerton does not have any other children.
The parties separated on July 3, 2002, and sought a divorce on the
ground of irreconcilable differences. They agreed to everything with
the exception of the custody
of their child.
The court, at an Order to Show Cause hearing on September 20, 2002,
ordered visitation pendente lite, giving Howerton visitation
with the child
on Tuesdays and Thursdays after work, and from Saturday mornings until
Sunday evenings on weekends that he was not working. Carter was given custody
of the child
during the remaining time.
[3]
At a bench trial on January 31, 2003, the court accepted testimony on
the issue of custody.
Carter argued for sole legal and physical custody,
while Howerton proposed a joint physical custody
plan wherein the child
would live with each parent on a week on, week off basis. The lower
court announced its decision regarding custody
from the bench, and thereafter, on February 27, 2003, issued an
Interlocutory Decree of Dissolution [with] Findings of Facts [and]
Conclusions of Law, incorporating its prior bench ruling. As set forth
in the Interlocutory Decree, the court found that the parties were
“equally fit to serve as parents of the minor child
with respect to finances, maturity, and emotional support.”
Appellant's Excerpts of Record, Tab A, p. 3 (Interlocutory Decree of
Dissolution, Findings of Fact, Conclusions of Law, Feb. 27, 2003). The
court ordered that both parents shall have “joint legal and physical
custody
of their minor child,”
and further ordered that custody
be as follows: The child
would reside with Carter, with Howerton “having visitation in
accordance with the following schedule:”
[1]
Tuesday and Thursday Evening from 5:00 pm until 8:00 pm
[2]
Weekends, when [Howerton] ··· does not have drill or other full
time duty, from 9:30 am Saturday until 8:00 pm on Sunday
[3]
Weekends, when [Howerton] has drill or full time duty, Saturday and
Sunday from 5:00 pm until 8:00 pm
Appellant's
Excerpts of Record, Tab A, pp. 5-6 (Interlocutory Decree of
Dissolution, Findings of Fact, Conclusions of Law, Feb. 27, 2003). The
court's custody
decision was essentially the same as the custody
arrangement which was imposed pendente lite.
[4]
A Final Decree of Dissolution of Marriage was filed on February 27,
2003, which incorporated the Interlocutory Decree by reference. See
Appellant's Excerpts of Record, Tab B, p. 1 (Final Decree of
Dissolution of Marriage, Feb. 27, 2003). Both the Interlocutory and
Final Decrees were entered on the lower court's docket. Howerton
appealed both decrees.
II.
[5]
“This court has jurisdiction over appeals from child
custody
orders” pursuant to Title 7 GCA § 3107(b). Lanser v. Lanser,
2003 Guam 14, ¶ 8 (citing Flores v. Cruz, 1998
Guam
30, ¶ 8).
III.
A.
Standard of Review.
[6]
We review child
custody
orders for an abuse of discretion, keeping in mind the best interests
of the child.
Lanser, 2003 Guam 14 at ¶¶ 8, 15; see also Flores v. Cruz,
1998 Guam 30, ¶ 8; see also In re Marriage of Condon, 62
Cal.App.4th 533, 73 Cal.Rptr.2d 33, 44 (Ct.App.1998) (“The standard
of appellate review of custody
and visitation orders is the deferential abuse of discretion
test.”). Under this standard, we do not substitute our own judgment
for that of the trial court; instead, we determine “whether
substantial evidence supports the trial court's decision.” Lanser,
2003 Guam 14 at ¶ 15; see also Flores, 1998
Guam
30 at ¶ 8. “Substantial evidence is relevant evidence that a
reasonable person may accept as sufficient to support a conclusion,
even if inconsistent conclusions may be drawn from the evidence.” Lanser,
2003
Guam
14 at ¶ 18 (quoting B.M. Co. v.. Avery, 2002
Guam
19, ¶ 13); see also Condon, 73 Cal.Rptr.2d at 44 (defining the
test as “whether the trial court could have reasonably concluded
that the order in question advanced the ‘best interests' of the child”)
(citation omitted).
B.
The Parties' Arguments.
[7]
Howerton presents two issues on appeal relating to the trial court's
decision regarding custodial time. The first is that the lower court
erred in failing to give Howerton equal time with the child
where the court awarded the parties joint physical custody.
The second issue relates to the trial court's decision in granting
Carter more time with the child.
Howerton argues that in failing to grant equal time, the lower court
erroneously applied the “child
of tender years” standard, which according to Howerton, does not
apply under
Guam
law. He further argues that even assuming the doctrine was applicable
in
Guam
, the doctrine is inapplicable where the mother does not stay at home
caring for the child.
Howerton contends that the doctrine is inapplicable in this case
because Carter is a career flight attendant and is not a stay-at-home
mother.
[8]
On appeal, Carter argues that the lower court's decision regarding
custody was correct. Carter essentially re-asserts much of the
testimony which was presented during the lower court hearing on the
custody issue.FN2
FN2.
For purposes of deciding this appeal, we do not consider any facts
Carter raised in her brief and during oral argument which are not part
of the lower court's record.
C.
Discussion.
1.
Equal Time.
[9]
Howerton argues that the lower court erred in finding that the parties
should have joint physical custody
but thereafter awarding him less than equal time with the child.
In discussing the issue, it is first relevant to describe the various
legally recognized joint custody
arrangements, as well as the type of arrangements contemplated under
Guam
law.
[10]
As this court has previously stated in Flores v. Cruz, joint custody
is “generally understood as a custody
arrangement that places both legal and physical custody
of a child
in the hands of both parents.” Flores, 1998
Guam
30 at ¶ 9. The
Flores
court further described a joint custody
arrangement as permitting both parents to “participate in reaching
major decisions affecting the child's
welfare.”
Id.
As defined in
Flores
, joint custody
appears to include both physical and legal custody.
[11]
It has been clarified that “properly analyzed, joint custody
is comprised of two elements-legal custody
and physical custody
····” Pascale v. Pascale, 140 N.J. 583, 660 A.2d 485, 491
(N.J.1995) (quoting Beck v. Beck, 86 N.J. 480, 486, 432 A.2d
63 (1981)) (internal brackets omitted). Other courts have similarly
held that “[e]mbraced within the meaning of ‘custody’
are the concepts of ‘legal’ and ‘physical’ custody.”
Taylor
v. Taylor, 306
Md.
290, 508 A.2d 964, 967 (Md.App.1986). This court has discussed issues
related to custody
in Flores v. Cruz, 1998 Guam 30 at ¶¶ 3-7, and more recently
in Lanser v. Lanser, 2003
Guam
14. Neither the Lanser court nor the
Flores
court differentiated between the concepts of joint physical and
joint legal custody.
See Lanser, 2003 Guam 14; Flores, 1998
Guam
30. Moreover,
Guam
statutes do not define either arrangement. See Flores, 1998
Guam 30 at ¶ 10 (identifying Title 19 GCA § 8404, entitled
“Criteria and Procedure in Awarding Custody,”
as the “principle custody
statute” under
Guam
law). The concepts of physical and legal custody
are, in fact, distinct, and courts often find it “helpful to
contrast joint legal custody
with joint physical custody.”
McCarty v. McCarty, 147 Md.App. 268, 807 A.2d 1211, 1213 (Md .
Ct.Spec.App.2002). For purposes of analyzing the issue in the present
case, it is similarly helpful to distinguish the two. Taylor,
508 A.2d at 966 (“While it is clear that both parents in a joint custody
arrangement function as ‘custodians' in the sense that they are
actually involved in the overall welfare of their child,
a distinction must be made between sharing parental responsibility in
major decision-making matters and sharing responsibility for providing
a home for the child.”);
see also Pascale, 660 A.2d at 491 (reaffirming the importance
in “break[ing] down the term joint custody
into legal and physical custody
in reviewing a court's determination of child
support”); Elsome v. Elsome, 257 Neb. 889, 601 N.W.2d 537,
544 (Neb.1999) ( “Many, if not most, states that have defined joint custody
differentiate between joint legal and joint physical custody.”).
[12]
Courts have defined joint legal custody
as carrying with it “the right and obligation to make long range
decisions involving education, religious training, discipline, medical
care, and other matters of major significance concerning the child's
life and welfare.” Taylor, 508 A.2d at 967; Pascale,
660 A.2d at 491 (“Joint legal custody,
mean[s] the authority and responsibility for making major decisions
regarding the child's
welfare.”) (internal quotation marks and citation omitted). “Joint
legal custody
means that both parents have an equal voice in making those decisions,
and neither parent's rights are superior to the other.” Taylor,
508 A.2d at 967; Brown v. Brown, 260
Neb.
954, 621 N.W.2d 70, 77 (Neb.2000) (“Joint legal custody
has been generally defined as joint authority and responsibility for
making ‘major’ decisions regarding the child's
welfare.”) (internal quotation marks and citation omitted).
[13]
By contrast, joint physical custody
“means the right and obligation to provide a home for the child
and to make the day-to-day decisions required during the time the child
is actually with the parent having such custody.”
Taylor, 508 A.2d at 967; Brown, 621 N.W.2d at 77 (“In
contrast [to joint legal custody],
joint physical custody
has been described as joint responsibility for ‘minor’ day-to-day
decisions ····”) (internal quotation marks, citations and
internal brackets omitted); Pascale, 660 A.2d at 491-92.
Moreover, under a joint physical custody
arrangement, there exists an “exertion of continuous physical custody
by both parents over a child
for significant periods of time .” Brown, 621 N.W.2d at 77
(citation omitted);
Taylor
, 508 A.2d at 967 (“Joint physical custody
is in reality ‘shared’ or ‘divided’ custody.”).
[14]
The child
custody
statutes are found in Title 19 of the Guam Code Annotated. Title 19
GCA § 8404 governs child
custody
in divorce cases. However, as was previously recognized by this court,
the section does not specifically address joint custody.
See Flores, 1998
Guam
30 at ¶ 10. Rather, the section speaks in terms such as “custodial
parent” and “non-custodial parent.” See Title 19 GCA §
8404(h) (1994) (“[I]n determining visitation of minor children
on Guam with noncustodial parents living on Guam, the court
shall, to the greatest degree possible, order visitation for minor children
(pendente lite and permanently) with non-custodial parents such that
the children
spend more or less equal amounts of time with the custodial parent
and the non-custodial parent during non-working, non-sleeping,
non-school time ····”) (emphasis added). Although the statutes
are silent as to joint custody
arrangements, this court has previously found that a review of Title
19 of the GCA, entitled “Parental Relations,” reveals a
legislative policy favoring the preservation of the “sanctity of
family life” by “the inclusion of both parents in the lives of
their children.”
Flores, 1998 Guam 30 at ¶ 11; see also Lanser, 2003
Guam
14 at ¶ 12. In light of this legislative policy, we have held that
joint custody
arrangements are preferred under
Guam
law. Flores, 1998 Guam 30 at ¶ 12; Lanser, 2003
Guam
14 at ¶ 12. We herein clarify that under
Guam
law there is a preference for both joint legal and joint physical custody
arrangements. The preference for either type of joint custody,
however, “is always secondary to the best interests of the child.”
Flores, 1998
Guam
30 at ¶ 12.5
[15]
The dispute in the present case involves the lower court's award of
physical, as distinguished from legal, custody.
Here, the trial court awarded joint physical custody
to the parties. Appellant's Excerpts of Record, Tab A, p. 5
(Interlocutory Decree of Dissolution, Findings of Fact and Conclusions
of Law, Feb. 27, 2003) (“The [p]arties shall have joint legal and
physical custody
of their minor child.”);
see also Appellant's Excerpts of Record, Tab B, p. 1 (Final
Decree of Dissolution of Marriage, Feb. 27, 2003) (incorporating the
Interlocutory Decree into Final Decree by reference). Howerton argues
that in light of this, the court erred in not giving the parties equal
custodial time over the child.
[16]
While the
Guam
statute which governs custody
upon dissolution of marriage does not address joint custody
arrangements (either physical or legal), see 19 GCA § 8404, it
does address custodial arrangements where joint custody
has not been awarded. In that context, the statute nonetheless favors
equality of time between the custodial and the non-custodial parent.
Title 19 GCA § 8404(h) specifically provides that, subject to various
exceptions:
It
is legislative policy that children
spend as much time with each of their parents as possible, when the
“parents are not living together.” Therefore, in “determining
visitation of minor children”
··· the court shall, to the greatest degree possible, order
visitation for minor children
(pendente lite and permanently) with non-custodial parents such
that the children
spend more or less equal amounts of time with the custodial parent and
the non-custodial parent during nonworking, non-sleeping, non-school
time ····
19
GCA § 8404(h) (emphasis added). However, in Lanser, this court
recently found that even if joint custody
is ordered, a joint custody
plan does not require an equal division of time between the
parents. Lanser, 2003 Guam 14 at ¶ 13 (stating that joint custody
“does not require that each parent have equal time with the children”).FN3
Accordingly, we reject Howerton's argument that the trial court was
required to grant equal time under a joint custody
plan as it is inconsistent with this court's prior determination that
an equal division of time is not required under a joint physical custody
plan where joint physical custody
has been ordered.
FN3.
This holding in Lanser v. Lanser, 2003
Guam
14, is not inconsistent with the law in other jurisdictions. Other
courts have similarly found that joint physical custody
does not require an equal division of time between the parents. See
Taylor v. Taylor, 306 Md. 290, 508 A.2d 964, 967 (Md.App.1986)
(describing joint physical custody
as “ ‘shared’ or ‘divided’ custody”
and recognizing that “[s]hared physical custody
may, but need not, be on a 50/50 basis, and in fact most commonly will
involve custody
by one parent during the school year and by the other during summer
vacation months, or division between weekdays and weekends, or between
days and nights”). Courts have so held even in light of statutes
which favor equal division custody
arrangements. See Stephenson v. Stephenson, 847 So.2d 175, 179
(La.Ct.App.2003) (“[
Louisiana
law] provides that to the extent feasible and in the best interests of
the child,
physical custody
of the children
should be shared equally. Yet, when the trial court finds that
a decree of joint custody
is in the best interests of the child,
the statute does not necessarily require an equal sharing of
physical custody
···· Substantial time rather than strict equality of time is
mandated by the legislative scheme providing for joint custody
of children.”)
(citations omitted) (emphasis added); In re Marriage of Smyka,
227 Mont. 408, 739 P.2d 489, 490 (Mont.1989) (interpreting an amended
statute which provides that the “allotment of time between parties
shall be as equal as possible” to mean that equal time is now
subordinate to the best interests of the child,
and that “depending upon the circumstances of the case, equal
physical custody
will not be awarded if such is not in the best interests of the children”)
(citation omitted); In re Marriage of Blonigen, 621 N.W.2d 276,
281 (Minn.Ct.App.2001) (finding that by statutory definition, joint
physical custody
is an arrangement whereby “the routine daily care and control and
the residence of the child
is structured between the parties” and further finding that “joint
physical custody
does not require an absolute equal division of time; rather it is only
necessary that physical custody
be the shared responsibility of the parents”) (citations omitted); Tilley
v. Tilley, 968 S.W.2d 208, 213 (Mo.Ct.App.1998) (“By statutory
definition, joint physical custody
means ‘an order awarding each of the parents significant periods of
time during which a child
resides with or is under the care and supervision of each of the
parties.’ Yet, joint physical custody
does not require a trial court to allocate each parent an equal amount
of time with the child.”)
(citations omitted); In re Marriage of Condon, 62 Cal.App.4th
533, 73 Cal.Rptr.2d 33, 46 n. 13 (Ct.App.1998) (finding that by
statute, a parent with joint physical custody
shall have “significant periods of physical custody
··· assur[ing] a child
of frequent and continuing contact with both parents,” but that “a
joint physical custody
order does not require a child
to spend an equal amount of time with each parent”).
[17]
Howerton argues on appeal that the custody
schedule ordered by the trial court “only gives him what amounts to
fairly limited visitation.” Appellant's Brief, p. 7 (July 23, 2003).
Howerton contends that the time allotment ordered in this case is
inconsistent with the policy under local law favoring joint custody.
Howerton further argues that the trial court's decision to depart from
an equal time arrangement was contrary to the best interests of the child.
He contends that “[i]n the absence of any factor showing the child's
best interests require otherwise, equal time should be ordered by the
[c]ourt.” Appellant's Brief, p. 7 (June 23, 2003).
[18]
First, we reject Howerton's argument that the custody
arrangement ordered in this case did not approximate a joint physical custody
plan. As stated earlier, joint physical custody
does not require equality of time. Rather, joint physical custody
requires that each parent get continuous physical custody
for significant periods of time. See Brown, 621 N.W.2d at 77
(defining a joint physical custody
order as an arrangement whereby there is an “exertion of continuous
physical custody
by both parents over a child
for significant periods of time”) (citations and internal brackets
omitted); see also Stephenson v. Stephenson, 847 So.2d 175, 179
(La.Ct.App.2003) (stating that the statutory scheme allowing for joint
custody
“does not necessarily require an equal sharing of physical custody”
but rather, mandates “ [s]ubstantial time rather than strict
equality of time”) (citations omitted and emphasis added). In the
present case, the custody
order allows Howerton several overnight visits a month, almost all day
during most weekends, and several afternoon visits per week. This custody
arrangement allows each parent substantial time with the child
and continuous physical custody
for significant periods of time. See Tracy v. Tracy, 961 S.W.2d
855, 858-59 (Mo.Ct.App.1998) (rejecting the mother's argument that the
trial court erred in granting primary physical custody
to the father, and finding that the plan, which allowed the mother
alternating weekend visitation, an extended period of custody
during the first half of the summer, and alternating holidays and
birthdays, was a joint physical custody
plan, and not a primary physical custody
plan with visitation); In re Marriage of Blonigen, 621 N.W.2d
276, 281 (Minn.Ct.App.2001) (stating that “[j]oint physical custody
does not require an absolute equal division of time,” and finding
that a custody
order which gave the mother “physical custody
of the children
from Sunday evening through Friday evening during the school year and
during the months of June and July,” and gave the father “physical
custody
of the children
every weekend from Friday evening through Sunday evening and during
the month of August” was a joint physical custody
arrangement); Nichols v. Ralston, 929 S.W.2d 302, 304-05
(Mo.Ct.App.1996) (characterizing a custody
arrangement where the father had custody
20% of the time, and the mother had custody
80% of the time, as a “joint physical custody”
arrangement in light of the statutory definition of joint physical custody
as “an order awarding each of the parents significant periods of
time during which a child
resides with or is under the care and supervision of each of the
parents”).
[19]
Further, while substantial time, and not equal time, is all that is required
under a joint physical custody plan, we agree with Howerton that under
Guam
law, equal time is preferred and should be granted to the
greatest extent possible. See 19 GCA § 8404(h). The holding of
Lanser that equal time is not required under a joint
custody plan does not affect the clear legislative policy that equal
time is preferred. Thus, because equal time is preferred under
Guam
law, we must decide under what circumstances the lower court may
deviate from an equal time arrangement upon awarding joint physical
custody to both parents.
[20]
We hold that a trial court may deviate from an equal time arrangement
if it is within the child's
best interests. Title 19 GCA § 8404(a) provides that the award of custody
in a non-joint custody
circumstance should be made in accordance with the best interests of
the child,
and section 8404(h) provides that a trial court should to the greatest
extent possible award equal time so long as the arrangement “is not
found by the court, on the evidence presented, to be injurious to the
welfare of the child.”
19 GCA 8404(h)(1). This court has explicitly held that the preference
for joint custody
“is always secondary to the best interests of the child.”
Flores, 1998
Guam
30 at ¶ 12. We similarly find that, when joint physical custody
is awarded, the preference for equal time is also secondary to the
best interests of the child.
[21]
Other courts have likewise found that a deviation from the preference
for equal time is permitted if it is within the child's
best interests. In In re Marriage of Smyka, 227 Mont. 408, 739
P.2d 489 (Mont.1987), the parents of a minor child
divorced and the trial court found it to be in the best interests of
the child
that the parents have joint custody
with the child's
primary residence with the mother subject to visitation by the father.
In re Marriage of Smyka, 227
Mont.
408, 739 P.2d 489, 490 (Mont.1987). That schedule was further amended
upon motion of the mother, where the trial court again found that
joint custody
was proper but the father's visitation was reduced by eight days per
year.
Id.
Under the final visitation schedule, the father was given 140 days
with the child,
and the mother was given 225 days.
Id.
Specifically, the father was awarded physical custody
from “Wednesday through Sunday twice a month, all of February and
July, half of October, and alternate holidays.”
Id.
at 941, 739 P.2d 489. The father appealed, contending that the
“trial court erred by granting him custody
of less than a full half of the child's
time while finding that joint custody
was appropriate.”
Id.
at 490. The father argued that by statute, the policy in
Montana
was to award “an equal allotment of custodial time,” and that the
trial court's decision to grant him less than full time was a
misapplication of the “best interest of the child
standard” set forth under statute.
Id.
The appellate court rejected the father's challenge. First, the court
cited the statutory language, which provided that
physical
custody
and residency of the child
shall be allotted between each parent in such a way as to assure the child
frequent and continuing contact with both parents. The allotment of
time between parties shall be as equal as possible; however, each case
shall be determined according to the best interests of the child
as the primary consideration.
Id.
(quoting MCA § 40-4-224(2)). Citing prior cases, the court found that
the statutory preference of equal time was subordinate to the best
interests of the child.
Id. at 490-91 (“[D]epending upon the circumstances of the
case, equal physical custody
during the school year will not be awarded if such is not in the best
interests of the child
···· [T]he statute requires that the equal time recommendation be
balanced by the practicalities of providing for the best interests of
the child.”)
(citations omitted). Ultimately, after reviewing the record, the Smyka
court affirmed the trial court's specific custody
and visitation award.
Id.
at 491; see also Stephenson, 847 So.2d 175, 178, 181 (finding
that the visitation scheme, allowing the father visitation “every
other weekend and each Wednesday afternoon ··· during the school
year and alternate weekly summer visitation,” achieved the paramount
goal of preserving the child's
best interest under the unique circumstances of the case).
[22]
We agree that a best interest analysis should be a factor in
structuring custodial time arrangements when joint physical custody
is ordered. Where equality of time is not required, but preferred,
under a joint physical custody
plan, the lower court's decision to depart from an equal time
arrangement should be made in accordance with the child's
best interests.
[23]
This court has not previously discussed the various factors a lower
court is to consider in determining allotment of custody
as the decision relates to the child's
best interests; thus, it is helpful to look to local statutes relating
to custody
as well as cases from other jurisdictions.
a)
Factors for Determining Custody.
[24]
Though governing the situation where a trial court awards physical custody
to one parent, and not joint custody,
the factors in 19 GCA § 8404(h) do provide some guidance on the
matter. Section 8404(h) states that a trial court should to the
greatest extent possible give equal time subject to the following
considerations:
(1)
The proposed visitation is not found by the court, on evidence
presented, to be injurious to the welfare of the child;
(2)
The non-custodial parent is willing to accept such visitation;
(3)
The non-custodial parent is not found by the Court to be an unfit
person to have such visitation;
(4)
The visitation is not found by the Court to interfere with the child's
schooling;
(5)
Unless the Court finds that it is not in the best interests of the child,
non-custodial parents or the children's
grandparents shall be given consideration in providing child-care
for their minor children
or grandchildren, when visitation orders are prepared;
(6)
In determining visitation rights under this subsection (h), the court
shall take into account the employment of each parent and the time the
child
spends in school or in extracurricular activities;
(7)
Based on proof presented, the court may take into account other
factors respecting visitation which would affect the welfare of the
minor child
or children;
···
Title
19 GCA § 8404(h).
[25]
As referenced above, under section 8404(h), in considering a deviation
from an equal time division when sole physical custody
is ordered, the lower court is to consider the following factors,
which are part and parcel of a finding regarding the child's
best interests: the child's
welfare, the parents' willingness to accept visitation, the parents'
fitness, the child's
schooling, the parents' jobs and the child's
extra-curricular activities. Courts in other jurisdictions have found
similar factors to be relevant in determining the child's
best interests in determining custody.
For instance, in Bah v. Bah, 668 S.W.2d 663, 666
(Tenn.Ct.App.1984), the court found that in determining where the best
interests of a child
lies when awarding custody,
the lower court should consider many factors including, but not
limited to:
(1)the
age, habits, mental and emotional make-up of the child
and those parties competing for custody;
(2) the education and experience of those seeking to raise the child;
(3) their character and propensities as evidenced by their past
conduct; (4) the financial and physical circumstances available in the
home of each party seeking custody
and the special requirements of the child;
(5) the availability and extent of third-party support; (6) the
associations and influences to which the child
is most likely to be exposed in the alternatives afforded, both
positive and negative; (7) and where is the greater likelihood of an
environment for the child
of love, warmth, stability, support, consistency, care and concern,
and physical and spiritual nurture.
Id.
(internal numbering added); see
also
Taylor
, 508 A.2d at 971-75 (discussing factors to consider in awarding custody);
FN4 Woodall
v. Woodall, 322 S.C. 7, 471 S.E.2d 154, 157 (S.C.1996) (discussing
factors to consider in awarding custody).FN5
FN4.
In Taylor, 306 Md. 290, 508 A.2d 964, the court found the
following non-exclusive factors to be relevant in determining whether
to grant joint physical custody:
(1) capacity of the parents to communicate and to reach shared
decisions affecting the child's
welfare; (2) willingness of parents to share custody;
(3) the relationship established between the child
and each parent; (4) the preference of the child;
(5) the potential disruption of the child's
social and school life; (6) the geographic proximity of the parental
homes; (7) the demands of parental employment; (8) the age and number
of children;
(9) the sincerity of the parents' request; (10) the financial status
of the parents; (11) the impact on state and federal assistance; and
(12) the benefit to the parents.”
Id.
at 971-74 (internal numbering added).
FN5.
In Woodall v. Woodall, 322 S.C. 7, 471 S.E.2d 154 (S.C.1996),
the court indicated that in determining custody,
the “family court must consider the character, fitness, attitude,
and inclinations on the part of each parent as they impact the child
···· [as well as the] psychological, physical, environmental,
spiritual, educational, medical, family, emotional, and recreational
aspects of the child's
life····” Id. at 157 (citation omitted).
[26]
In the case at bar, during the January 31, 2003 custody
hearing, the lower court stated that in determining custody
it looks at the following factors:
[F]itness;
mental health; the ability of the Parties to provide love and
affection and emotional ties; the ability of Parties to provide some
sense of permanence; the capability to financially provide a roof over
the child's
head, clothing, food; the ability of Parties to work with each other
and to facilitate a continued and close working relationship between
the two Parties for the interests of the child.
Transcripts,
vol. III of III, p. 102 (Bench Trial, Jan. 31, 2003). These factors
are consistent with the factors listed in 19 GCA § 8404(h) as well as
those relied upon by courts in other jurisdictions.
b)
The Trial Court's Consideration of the Factors.
[27]
Upon review of the record, it is also apparent that the court took the
relevant factors into consideration when determining custody.
Specifically, after enumerating the relevant factors, the court
pronounced: “I find it equal on both sides.” Transcripts, vol. III
of III, p. 102 (Bench Trial, Jan. 31, 2003). The court then stated
that it did “find more favorable to Ms. Howerton ··· a more
stable environment.” Transcripts, vol. III of III, p. 102 (Bench
Trial, Jan. 31, 2003). Notably, the court recognized that because
Howerton moved to
Japan
due to his job, he was at a disadvantage. The court thereafter decided
that the parties would have joint legal and physical custody,
with the custody
arrangement in place prior to trial to remain the same. Transcripts,
vol. III of III, p. 102-03 (Bench Trial, Jan. 31, 2003). The court
specifically found that the arrangement proposed by Howerton, with one
week on and one week off, to be inappropriate for a young child.
Transcripts, vol. III of III, p. 103 (Bench Trial, Jan. 31, 2003)
(“I do not agree that a week on, week off for a child
of tender years is in the child's
best interests.”).
[28]
There is evidence in the record which supports the trial court's
decision. For instance, Carter testified that Howerton (who is in the
military) moved to Japan for his job when the child
was around eight moths old, in January of 2000, and moved back in
April of 2002. See Transcripts, vol. III of III, pp. 17, 28, 66
(Bench Trial, Jan. 31, 2003). During his time away, Howerton had
little physical or telephonic interaction with the child,
as he would come to
Guam
every month or two for generally two or three days. Thus, it is
apparent that the child
spent the bulk of her young life solely in the care of Carter in
Carter's home. The testimony also revealed that Howerton had work duty
at least one weekend per month, had a rigorous physical training
program and often left the home at 4:00 a.m. to exercise, and returned
from work after 8:00 p.m. in the evenings. Howerton testified that
should he be required to work early in the morning or on the weekends,
he planned to bring the child
to the
Harvest
Baptist
Church
daycare center. Transcripts, vol. III of III, p. 74 (Bench Trial, Jan.
31, 2003). Howerton testified that on the days he had drill or other
non-regular work duty, the child
would be in the care of “strangers,” basically, non-relatives.
Transcripts, vol. III of III, p. 80-81 (Bench Trial, Jan. 31, 2003).
By contrast, Carter testified that when in her custody,
the child
was either cared for by herself, or, if she had to work, by Carter's
eldest daughter, who, according to the transcripts, has experience
with childcare and has a close relationship with the child.
Howerton also testified that being in the military, if he was
reassigned, he would have no choice but to move away from
Guam
. Transcripts, vol. III of III, p. 84 (Bench Trial, Jan. 31, 2003).
[29]
The evidence identified above supports the trial court's determination
that the child would find a more stable, and familiar, environment
with Carter, and that the stability of the child's environment was in
the child's best interests. See Stephenson, 847 So.2d at 181
(finding that the child's “best interest [wa]s served by the
stability he receive[d] in [the mother's] ··· home during the
school week.”).FN6
Furthermore, it has been recognized that “extended visitation at
infrequent intervals may not be ‘reasonable’ with regard to
infants or toddlers: ‘from a developmental perspective, very young
children should not be separated from their primary caretakers for
long blocks of time.” Condon, 73 Cal.Rptr.2d at 46 n. 13
(citation omitted).
FN6.
There was testimony which could arguably support a finding that
Howerton should be granted more time. For instance, after the
“Nine-Eleven Incident,” Carter was required to take overnight
flights. During ten nights out of the month she would leave the child
overnight with a caretaker, Mrs. Reyes. Transcripts, vol. III of III,
pp. 9-10 (Bench Trial, Jan. 31, 2003). Carter also testified that the
child did not appear to be uncomfortable after visitation with
Howerton. Transcripts, vol. III of III, pp. 53-54 (Bench Trial, Jan.
31, 2003). The court also specifically asked whether Carter was
willing to develop a good relationship with Howerton in the future, to
which Carter replies yes. Transcripts, vol. III of III, p. 56 (Bench
Trial, Jan. 31, 2003). Howerton also testified that he lives in a home
in Dededo in a secure complex, where the child has her own room (full
of toys, etc.). Transcripts, vol. III of III, p. 71-72 (Bench Trial,
Jan 31, 2003). He testified that the child has friends in the
neighborhood. Transcripts, vol. III of III, p. 71-72 (Bench Trial, Jan
31, 2003). Howerton also testified that he has changed his lifestyle
and no longer jogged as often and did not jog at 4:00 a.m. and was at
home a lot more than before. Transcripts, vol. III of III, p. 74
(Bench Trial, Jan 31, 2003). Notwithstanding this testimony favoring
an equal time arrangement, this court must affirm the trial court's
award so long as there is competent evidence in the record to support
the court's award. See Lanser, 2003
Guam
14 at ¶¶ 15, 18.
[30]
Accordingly, we find that the trial court did not err in deciding that
Howerton's proposed week on, week off plan was not within the child's
best interests. Overall, because there is some competent evidence in
the record supporting the trial court's decision, it cannot be
concluded that the trial court abused its discretion in deviating from
an equal time arrangement and in deciding to structure the joint custody
plan such that the child
would spend most nights with Carter with a few afternoon and overnight
stays with Howerton.
[31]
Finally, the fact that Howerton was found to be equally as fit as
Carter “did not relieve the trial judge of the burden of determining
which parent could best meet the present needs of the child[
].” See
Anderson
v. Anderson, 121
Ariz.
405, 590 P.2d 944, 946 (Ariz.Ct.App.1979) (rejecting the contention
that the trial court erred in placing physical custody
with the appellee where the court also found the appellant to be
“fit”). Thus, although both parents were found to be fit, the
trial court was still required to determine what type of joint custody
arrangement was within the child's
best interests, and was permitted to deviate from the preference for
equal time if such an arrangement was found to be within the child's
best interests. Here, the evidence supports the court's decision on
the custody
arrangement.
2.
Tender Years Doctrine.
[32]
Howerton also argues that the lower court erroneously applied the
tender years doctrine, which, according to Howerton, is inapplicable
under
Guam
law.
[33]
“The ‘tender years doctrine’ holds that young children,
generally those under the age of seven years, should be in their
mother's care.” Cynthia C. Siebel, Defining Fatherhood: Emerging
Case Law Reflection of Changing Societal Realities, WHITTIER J. OF
CHILD
& FAM. ADVOC., 125, 126 n. 5 (2003); Lee v. Lee, 798 So.2d
1284, 1289 (Miss.2001) (“[T]he tender years doctrine ···
essentially states that if the mother of a child
of tender years (i.e., early in development) is fit, then she should
have custody.”)
At common law, there was no presumption in favor of the mother.
Rather, “the father, as a matter of right, was entitled to the custody
of his children.”
Bazemore v. Davis, 394 A.2d 1377, 1380 (App.D.C.1978); Ex
Parte Devine, 398 So.2d 686, 688 (Ala.1981) (“At common law, it
was the father rather than the mother who held a virtual absolute
right to the custody
of their minor children.”).
“Towards the end of the nineteenth century, however, the traditional
rule that the father was always entitled to custody
began to give way to a standard under which the best interest of the child
controlled.” Bazemore, 394 A.2d at 1380. This standard
favoring the child's
best interests “evolved into a preference for the mother.”
Id.
Specifically, courts began to link the child's
welfare with custody
remaining with the mother, and a presumption arose that giving custody
to the mother was in the best interests of the child.
Id.
The doctrine, which was once a conclusive rule, eventually formed into
a presumption favoring the mother. See Devine, 398 So.2d at 691
(stating that the tender years presumption provides that “[a]ll
things being equal, the mother is presumed to be best fitted to guide
and care for children
of tender years”) FN7
FN7.
Whether the doctrine is useful for application in modern times is a
separate issue. In fact, the legal trend has been to abandon the
tender years doctrine. The doctrine “has been abolished, or is
disregarded, by most jurisdictions currently····” Cynthia C.
Siebel, Defining Fatherhood: Emerging Case Law Reflection of
Changing Societal Realities, WHITTIER J. OF CHILD
& FAM. ADVOC., 125, 126 n. 5 (2003); In re Marriage of Fynaardt,
545 N.W.2d 890, 893 (Iowa Ct.App.1996) (“[W]e no longer infer the
best interests of children
of tender years are better served by awarding custody
to their mother.”) (citation omitted).
[34]
In contending that the lower court relied on the tender years
doctrine, Howerton cites the trial court's pronouncement during the
hearing wherein it stated:
I
am going to award joint legal and physical custody
to both sides. But I am keeping visitation as is. As is. By ordering
this, the Court recognizes that as the child
matures, that-and is older-the child
is of tender years right now and I do not agree that a week on, week
off for a child
of tender years is in the child's
best interest. But I do agree that as the child
matures, that the non ···-the one who has less time-which would be
Colonel Howerton-that less time should increase to more time.
···
But
I do believe that it is in the best interest of this child,
because both parents have expressed that
Guam
will be their residence, that I grant joint legal and joint physical custody
with visitation as is.
Transcripts,
vol. III of III, p. 103 (Bench Trial, Jan. 31, 2003).
[35]
After reviewing the record, we disagree with Howerton's contention
that the lower court relied on the tender years doctrine. Under the
“tender years doctrine,” all things being equal, a court is
required to place a young child
in the custody
of the mother. In this case, the trial court stated that it did not
feel that the custody
plan proposed by Howerton, which consisted of a one-week on, one-week
off schedule, was in the best interests of the child
considering the child's
age. While the lower court indicated that the child
is “of tender years,” this reference to the child's
young age was made to emphasize that a ping-pong arrangement was
inappropriate in this case. This is further evident in the trial
court's question to Howerton during the hearing, which the court
characterized as an “important question,” to wit: “How do
you feel that it's in the best interest of a child
of tender years to go back and forth seven days on and seven days off?
How is it in the best interest of a three-year-old child
to have that?” Transcripts, vol. III of III, p. 93 (Bench Trial,
Jan. 31, 2003). The trial court's focus on the child's
young age was related to its determination that the child
would find a more stable environment under the custody
plan as ordered, as opposed to the week-on, week-off plan proposed by
Howerton.
[36]
Thus, because the court did not use the child's age for the purpose of
holding that the child should be in the mother's care because of
the age, but rather, considered the child's age to determine
whether Howerton's proposed arrangement was within the child's best
interests, the trial court did not apply the tender years doctrine as
Howerton asserts. Consequently, because the lower court did not apply
the tender years doctrine, we reject Howerton's argument that the
lower court's decision should be reversed on that ground. FN8
FN8.
We do note that Title 19 GCA § 9108 appears to be a codification of
the tender years doctrine in this jurisdiction. See Title 19
GCA § 9108 (1994) (“In awarding the custody
of a minor, or in appointing a general guardian, the court or officer
is to be guided by the following considerations ··· (b) As between
parents adversely claiming the custody
or guardianship, neither parent is entitled to it as of right; but
other things being equal, if the child
is of tender years, it should be given to the mother; if it is of
an age to require education and preparation for labor and business,
then to the father.') (emphasis added). Howerton identifies several
statutes which arguably indicate that legislative policy disfavors the
doctrine. See Title 19 GCA § 4106 (1994) (“The father and
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.”); Title 19 GCA § 4107 (1994) (“The
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.”); Title 19 GCA § 8404(a) (1994) (“Custody
should be awarded to either parent according to the best
interest of the child.”)
(emphasis added). Further, during oral arguments, Howerton alluded to
a contention that the doctrine may be constitutionally infirm in its
bias favoring women. However, because we find that the lower court did
not apply the doctrine, we find it unnecessary at this time to
determine the validity of the doctrine in this jurisdiction. We
further find it unnecessary to address Howerton's argument that even
assuming the doctrine applies in this jurisdiction, it should not be
applied where the mother and father are both employed full time
outside the home.
IV.
[37]
Overall, we find that equal time is preferred but not required under a
joint physical custody
arrangement. Furthermore, while equal time is preferred under
Guam
law, the lower court may deviate from an equal time arrangement if
doing so is within the child's
best interests. The evidence in the record supports the trial court's
determination that equal time was not in the child's
best interests, and that the child
should primarily reside with Carter. Thus, because the lower court's
decision was supported by substantial evidence, we find that the lower
court did not abuse its discretion in its custody
decision. Further, we find that the lower court did not apply the
tender years doctrine in this case. Accordingly, we reject Howerton's
contention that the lower court's decision should be reversed on the
ground that the court erroneously relied on the doctrine. In light of
the foregoing, we AFFIRM the lower court's decision regarding the custody
of the parties' minor child.
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