Burchard v. Garay

724 P.2d 486 (1986)

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Nature of the Case

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Facts

Ana Burchard (M) had sex with William Garay (F), and they had a child. F refused to believe that he was the father. The boy was born on September 18, 1979. M cared for the child while working at two jobs and continuing her training to become a registered nurse. F continued to deny paternity and did not visit the child or provide any support. M brought a paternity and support action. Blood tests established that F was the father, he stipulated to paternity and to support in the amount of $200 a month. Judgment entered accordingly on November 24, 1980. In December 1980, F visited his son for the first time. In the next month, he moved in with M and the child in an attempt to live together as a family; the attempt failed, and six weeks later he moved out. F asked for visitation rights; M refused and filed a petition for exclusive custody. F responded, seeking exclusive custody himself. The parties then stipulated that pending the hearing M would retain custody, with F having a right to two full days of visitation each week. M requested a ruling that F must prove changed circumstances to justify a change in custody. F claimed the court need only determine which award would promote the best interests of the child. The evidence at the hearing disclosed that William, Jr., was well adjusted, very healthy, well-mannered, good-natured and that each parent could be expected to provide him with adequate care. The court issued a statement of decision in which it impliedly ruled that the changed-circumstance rule did not apply because 'there has been no prior de facto nor de jure award of custody to either parent.' Applying the 'best interests' test, it awarded custody to F. F is financially better off, F has remarried, and he 'and the stepmother can provide constant care for the minor child and keep him on a regular schedule without resorting to other caretakers' and M must rely upon babysitters and daycare centers while she works and studies. M appealed from the order and sought a writ of supersedeas. The Court of Appeal, however, denied supersedeas and subsequently affirmed the trial court's order.