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If It Please the Court

This post isn’t about child custody cases. It’s not about family law at all. Oh, and it’s not about religion, either.

When I was young — and I swear to you that once, I was — I saw a comedy routine by a Christian comedian. I don’t remember many of the details, but I think he was making fun of Christian Scientists because they believed that they could just wish the world to be as they wanted it to be, regardless of reality.

In his routine, he told of a Christian Scientist who stepped off a curb in front of a bus. He didn’t look both ways first because in keeping with his religious beliefs, if he wanted the road to be clear and his passage safe, that’s what would be.

As he lay there on the gutter, he said, “I didn’t just get hit by no bus! My left leg bone isn’t sticking out of my right ear!” Or something like that, followed by uproarious laughter.

Notwithstanding the doctrine of the separation of Church and State, this seemingly ignorant approach to life has served the courts quite well for the last couple of decades. It’s apparently not meant as a joke; nobody’s laughing; and the courts take this approach with a perfectly straight face.

The Daily Journal — a publication which has the monopoly on the Daily Appellate Report and therefore doesn’t have to answer its phones or talk to anyone if it doesn’t want to, even to let them sign up for services — had a story today that shows how the doctrine works in our system of “law.” The article, “New Standard for ‘Move-Aways’ in Child Custody Battles,” notes:

Traditionally, a parent seeking to change custody arrangements bears the burden of demonstrating that a “change of circumstances” necessitates the requested change…. Over the last decade, however, several California courts have espoused a more fluid approach, opting not to apply the “change of circumstances” standard. (Stacy D. Phillips, et al, “New Standard for ‘Move-Aways’ in Child Custody Battles” (October 29, 2009) Daily Journal, p. 6.)

There are procedures for altering the law in a constitutional democracy when the law isn’t working as well as we’d like. Admittedly, the procedures themselves don’t work very well, because they depend upon the Legislative branch of government, which has largely abandoned its traditional role of legislating in favor of devoting its meager resources to finding ways to get lobbyists to pony up more of the cash Legislators so desperately crave.

Yet, technically-speaking, the law of the land — and thus the law the courts should be following — has the Legislative Branch passing laws while the courts merely apply the laws to the cases before them, or, if the laws are vague, they will provide, in the process of applying the laws to the cases before them, an interpretation of the law. They will explain the meaning of the Legislature’s law; they (theoretically) won’t make up one out of whole cloth.

Under this system, if the law isn’t working out so well, that’s a bummer: the courts have no authority to change the law. Changing and repealing laws that aren’t working out, like the job of passing them in the first place, is left to the Legislature.

In California, “the Legislature” arguably includes ordinary citizens with or without much common sense who may or may not be swayed by false or misleading advertising, who have registered to vote, and who then actually do go and vote on referenda.

This is how laws get made because in either a republic (i.e., representative democracy) or straight-out democracy, those who govern do so only in accordance with the will of the governed. The United States started out as a republic and has been increasingly evolving towards a straight-out democracy, with California leading the charge to eliminate the republican form of government.

(Aside: Benjamin Franklin, immediately following the Constitutional Convention in 1787, where the United States Constitution came into being, was asked: “Well Doctor, what have we got, a republic or a monarchy?” Franklin replied, “A republic if you can keep it.”)

Well, that’s how it’s supposed to be.

In actuality, when a court in California needs a law that doesn’t exist, or doesn’t like the way an existing law is working out, it makes up a new one, or just refuses to follow existing law, or both. In many such cases, an appellate court then gets a chance to look at the trial court’s decision. If the appellate court likes what the trial court did, it may also choose to ignore the law, accept a new one made up by the trial court, make up its own new one, or all of the above.

In the particular case discussed by the Journal article, notwithstanding the trial court’s failure (refusal?) to follow the law,

The court of appeal nonetheless affirms the trial court order, ruling that the mother did not need to show a change of circumstances based on the reasoning that “the [trial] court did not change custody,” but merely changed the parenting plan. The court of appeal further states that despite the fact that the court gave the mother permission to relocate the child, “the court continued joint custody with a modified co-parenting arrangement.” The court essentially concluded that changing a 50-50 division of custodial time to a 75-25 division, caused by one parent moving with the child to another state, did not amount to a change in custody, and that therefore, the moving parent was not required to show a change of circumstances. (Phillips, supra, at 6, citing Niko v. Foreman, 144 Cal.App.4th 344 (2006), alteration in the original.)

The article goes on to note that this case has caused confusion and controversy for three years now and ponders the question of what the court was trying to do and why. But regardless of what the court was trying to do, what it did do is ignore what it didn’t like about the law as it stood.

Now, when the parties disagree with the actions of an appellate court in California, if the parties have enough money and energy, there is still recourse to the California Supreme Court.

The rule in the California Supreme Court? If you guessed that it’s the same rule the appellate court follows, you’d be wrong, because the appellate court can’t refuse to hear an appeal, but the Supreme Court can. So long as the California Supreme Court is happy with the result in the appellate court, or is too busy to correct any abuse of the law at that point in time, the Supremes will refuse to hear the case.

If some other appellate court in a different district of California has upheldthe law and the California Supreme Court likes one of the decisions over the other, it may decide to put an end to things by taking the case and publishing an opinion supporting what the Supremes want the law to be. It might even be what the law had always been. I mean, they might actually affirm that the law is what the law says it is. (Hey, anything is possible!)

In Niko, the Supremes refused to hear the case. This left the holding of the appellate court, which had liked the decision of the trial court, in place.

Now, mind you, the lower courts would not join my analysis of how the law really works in California. Not at all. As far as they’re concerned, they did not ignore the law; they did not make new law; they merely “clarified” the law. Besides, the “changed circumstances” rule was not legislative in the first place.

Wha…huh?!

That’s right. “The change of circumstances standard is based on the principles of res judicata.” (Burchard v. Garay, 42 Cal.3d 531, 535 [724 P.2d 486], quoting Sharp, “Modification of Agreement-Based Custody Decrees: Unitary or Dual Standard?” (1982) 68 Va.L.Rev. 1263, 1264, fn. 9.)

So what’s all this poppycock about laws being made by the Legislature and courts are supposed to just apply them?

Well, as I said above, that’s how it’s supposed to work. As I also noted, that’s not how it really works.

And, probably, it couldn’t really work that way. After all, the laws passed by the Legislature are incomplete. They probably could not help but be otherwise, since they are general principles and as such cannot necessarily be directly applied to every case that comes before the courts. It would probably always be the case that intermediary rules would need to be developed by the courts.

But, for one thing, those rules should — I mean, in our representative democracy and even following mob rule a straight-out democracy, they should — be tied in some way to the actual laws passed by the Legislature or by referenda. And for another, there should be some consistency to them. At the very least, when the court changes them, the court should admit that they changed them and explain why.

The prime argument against Niko is that it refuses to call a spade a spade. Let’s face it: when one parent moves to another state with the children of a marriage, how can a court say it is not a change in custody? How can a 50-50 custodial arrangement that becomes a 75-25 arrangement not reflect a change in custody? If parents make an end-run around the “change of circumstances” rule by arguing that a move-away merely marks a change in the “parenting plan,” both judicial decisions and custodial arrangements themselves will lack stability and continuity. (Phillips, supra, at 6.)

So it goes. When the courts decide they do not like what will happen if they follow the law, there really is just one rule that remains constant: the courts will do as they please, to obtain the result they want.

And not even God can help you if what you want is not what they want. Because both the comedian and the Christian Scientist he joked about were wrong. Neither of them could remake the world just by saying they had.

Only the courts have that power.

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