Supreme Court Upsets Child Custody Award Tied to Income

In a victory for single working mothers, the California Supreme Court ruled Monday that child custody awards cannot be based on the comparative incomes of the parents in the dispute or the assumption that care provided by a single parent is inferior.

The justices unanimously overturned an order denying custody to an unwed nurse’s trainee working at two jobs in favor of a father with greater job stability, his own home and a new wife willing to stay home to care for the child.

“Comparative income or economic advantage is not a permissible basis for a custody award,” Justice Allen E. Broussard wrote for the court.

“If in fact the custodial parent’s income is insufficient to provide a proper care for the child, the remedy is to award child support, not to take away custody.”

The court noted that at present, more than 50% of all mothers and 80% of divorced mothers are employed and said that judges deciding custody cases “must not presume that a working mother is a less-satisfactory parent or less fully committed to the care of the child.”

Chief Justice Rose Elizabeth Bird, in a separate concurring opinion, said the reasoning of the trial court in the case had been “discriminatory” and was based on “outmoded notions . . . which unfairly penalize working mothers.”

Dispute Between Couple

The ruling came in a dispute between William Garay of Rancho Cucamonga and Ana Marie Burchard of Pomona over custody of William Garay Jr., now 7.

After the boy’s birth out of wedlock in 1979, Burchard cared for the child, worked at two jobs and continued her training to become a nurse. She later brought a paternity and support suit against Garay.

Garay stipulated to paternity and began providing $200 a month support. The couple lived together briefly but then separated, and each sought custody of the child in subsequent proceedings.

Los Angeles Superior Court Judge Carlos Teran determined that it was in the “best interests” of the child that custody be awarded to Garay, a restaurant manager who, among other things, was “better equipped economically . . . to give constant care” to the boy.

The judge noted that Garay had recently married and the stepmother could provide continuous care, where Burchard would have to rely on baby sitters and day-care centers while she worked and studied.

The child has since resided with Garay for four years and currently attends school, according to attorneys in the case.

A state appellate court upheld the custody award, but the Supreme Court reversed the decision, ordering further proceedings to determine what arrangement is in the best interests of the child.

The justices, deciding one of the key legal issues in the case, said that when there has been no official award of custody, a non-custodial parent like Garay had not needed to show that there were “changed circumstances” that warrant his obtaining custody.

When one parent like Burchard has maintained lawful custody for a significant period, the other need show only that a change is in the child’s best interests, the justices said.

The court went on to say that the trial court had erred in relying on Garay’s superior economic position to award him custody. Such considerations weigh less than “continuity and stability” and other factors, the justices said.

Four Years

The court carefully noted that it had been four years since the boy was awarded to his father and that its decision should not be interpreted as finally determining who should have custody.

In a separate concurring opinion, Justice Stanley Mosk, joined by Justice Malcolm M. Lucas, agreed that the trial court order should be reversed. But he objected that the court had gone too far in virtually overturning a previous ruling that said a child could only be removed from custody after a showing that circumstances had changed and a transfer of custody was necessary.

Arnold H. Johnson of Claremont, the attorney representing Garay, said he was confident that the father would be able to maintain custody in further proceedings.

“The child has been in a fine, stable and secure environment,” he said. “There are many, many factors involved in this case . . . and comparative economic status is just one minor consideration.”

Attorneys for Burchard were not immediately available for comment.

Prison Sentences

In other action, the court ruled unanimously that mentally disordered sex offenders are not entitled to reduced prison sentences for good behavior they had exhibited while undergoing treatment in state hospitals.

The justices, ruling in a companion case, said that such credit also may be denied to prisoners committed for treatment on the grounds they were incompetent to stand trial.

The court said that in neither case were inmates being denied equal protection of the law, because addicted drug offenders are given good behavior credit for the time they undergo treatment.

Under the law, any prison sentence for either sex offenders or incompetent defendants is reduced by the actual time previously spent in hospital confinement. The issue in these two cases was whether further reductions of up to one-third that time should be made for good conduct during that confinement.

Sex Offenders

According to briefs filed with the court, the ruling will affect several hundred inmates who were committed under a since-abandoned program for mentally disordered sex offenders, as well as an undetermined number of criminal defendants held in hospitals until found fit to stand trial.

The mentally disordered sex offender program allowed judges to order hospital commitments for convicted sex offenders found dangerous because of mental disorders. If and when they were found no longer dangerous, or not amenable to further treatment, they were subject to prison sentence for the offense they committed.

The law creating the program was repealed by the Legislature in 1981 but still applies to inmates sentenced under its provisions.