Should I Stay or Should I Go?


A recent move away case, In re Marriage of Winternitz, is the latest in a long line of move away cases. During the dissolution proceedings, the parties agreed to use a child custody evaluator, Dr. Frank Leek, to determine whether or not it would be in the child’s best interest to move to San Diego with Mother. Dr. Leek recommended the move and the trial court permitted Mother and child to move to San Diego. The trial court added that the move was subject to a custody modification without a change of circumstance if a custody modification would be in the child’s best interest. This is interesting in that, generally, after a full trial and a determination by the court as to the child’s best interest in order to change custody, one needs to show a change of circumstance, which is not an easy requirement to meet and, thus, makes changing custody very difficult.


After the trial, Father moved to San Diego to be closer to the child. Fast forward several years and Mother files a request to move again with the minor child and Father requested the court change custody of the child to him. The court appointed Dr. Robert Simon who recommended that the court deny the move and award Father primary custody. Apparently, some procedural mistakes were made in the report but the trial court admitted the report into evidence nonetheless because Mother was not able to show that the evaluator was biased. Mother appealed and the appellate court, after reviewing several prior cases, ruled that it should not engage in “appellate micromanagement of every communication or act by the evaluator”. The appellate court ruled that the technical errors in the evaluation went to the weight of the report, not its admissibility. Thus, the take away from this case is that evaluation reports need not be perfect and that litigants, should they want an evaluation thrown out and an evaluator replaced, should focus on proving a real bias. Showing some technical and procedural problems, as in this case, appears to not be enough.

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