Filed 6/26/13 County of San Diego v. Mark W. CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. COURT OF APPEAL, FOURTH APPELLATE DISTRICT DIVISION ONE
STATE OF CALIFORNIA

COUNTY OF SAN DIEGO, Plaintiff,

v. MARK W., Defendant and Respondent; SUZANNE G., Objector and Appellant. D061225

(Super. Ct. No. DF192808)

APPEAL from an order of the S uperior Court of San Diego County, Darlene A. White, Commissioner. Affirmed. Suzanne G., in pro. per., for Objector and Appellant. No appearance for Defe ndant and Respondent.

Mark W. and Suzanne G. are the parents of twin sons, R. and M. (born 2005). After their birth, the County of San Diego f iled this action to requ ire Mark to pay child support for the children. Ev entually, the family court en tered a final custody order,2 placing the children with Suzanne during the we ek. Suzanne appeals an order changing physical custody of the children from her cu stody during the week, to Mark's custody. Suzanne claims Mark did not pr ove a substantial change of circumstances. We disagree and affirm the order.
FACTUAL AND PROCEDUR AL BACKGROUND In September 2011, the family court orde red that Mark and Suzanne share legal custody of the children. The court ordered th at during the school year, the children reside with Suzanne during th e week and with Mark on the weekends. The family court stated that its orders were a final adjudi cation of custody and visitation under Montenegro v. Diaz (2001) 26 Cal.4th 249 ( Montenegro ). In November 2011, Mark filed an ex pa rte application seeking immediate removal of the children from Suzanne. The family court set the matter for hearing and reappointed William M. Benjamin as counsel for the children. The family court ultimately heard the matter in Ja nuary 2012. As relevant to this appeal, the family court found a "substantial change in circumstances" that warrant ed a change in the prior

" Montenegro order." Specifically, the court noted that R. "has been spiraling downward both in academics and in behavior such that it would be detr imental to both children not to make the modifications set forth herein." The court switched custody, so that Mark would have the children during the week and Suzanne would have the children on the weekends. Based on this swap , the children were to be enro lled in a school where Mark resided. Suzanne timely appealed.3 DISCUSSION Suzanne asserts the trial court erred in changing physical custody because Mark did not prove a substantial change of circumstances. We disagree. Child custody orders are modifiable whenever the court finds a change is "necessary or proper" in the child's best interests. (Fam. Code, §§ 3022, 3088, undesignated statutory references are to th e Family Code.) Courts must look at all circumstances bearing on the child 's best interests, with the primary focus on the child's health, safety and welfare. (§ 3020; In re Marriage of Burgess (1996) 13 Cal.4th 25, 31– 32 ( Burgess ).) There is no preference or presum ption in favor of any particular arrangement for custody or vis itation. (§ 30 40, subd. (c).) Custody arrangements under an existi ng order can only be changed upon a showing of a substantial change in circumstances so affecti ng the child that modification is essential to the child's welfare. ( Burgess , supra , 13 Cal.4th at p. 37.) Absent such a showing, any modification constitute s an abuse of discretion. ( Ibid. ) The moving party has the twofold burden of showing how ci rcumstances have changed and why the custody modification woul d be in the child's best interests. ( In re Marriage of McLoren (1988) 202 Cal.App.3d 108, 111–112, 114 [standa rd applies to requests to change legal or physical custody].) We review a deci sion modifying custody under an abuse of discretion standard. ( Burgess , supra , 13 Cal.4th at p. 32.) A greater showing is required to modify a permanent custod y order than is required to modify a temporary custody order. ( Montenegro , supra , 26 Cal.4th at pp. 256–257.)4 In support of his request to change phys ical custody of the children, Mark filed a declaration generally stating that R.'s behavior while at school has deteriorated causing R. to be suspended a number of times. He clai med that the children needed to be removed from Suzanne because she mental ly abused and physically harm ed them. Counsel for the children filed a declaration stating that the ch ildren expressed no fear as to either parent and he observed no discomfort between th e children and Suzanne. He spoke to the principal at the children's school and learned that while "[R.] had some behavior issues last year, they were not as pronounced as th ey are this year." Among other things, R. behaves aggressively, hides from the staff, yells and hits other children. Counsel believed that "[n]either parent 's explanation for R.'s sudden spiking of behavior issues seem[ed] plausible, standing alone." He no ted that R.'s behavior would likely not be tolerated at R.'s school for many more days. Counsel made a number of recommendations to the court, including reversi ng the current parenting plan so that the children would reside with Ma rk during the school week. This evidence supported the family co urt's order as it revealed that the circumstances have changed and that the custody modification was in the best interests of the children. Suzanne complain s that Mark's sole basis for seeking a change in physical custody was her alleged abuse of the childre n, but that the evid ence did not support Mark's allegations. Significantly, the fam ily court made no finding on Mark's abuse allegations. Rather, after considering all th e evidence, the court used a best interests analysis to conclude "it wo uld be detrimental to both children not to make the5 modifications set forth herein." We conclude the family court did not abuse its discretion by ordering the change of physical custody. As an aside, we feel compelled to note the comment of minor's counsel that "[t]he level of hostility between the parents has incr eased, not subsided, and both boys have clearly been exposed to same." Thus, it appe ars this case, as with tragically too many others, involves "parents [who] pursue their an imosity toward each ot her to the detriment of their children." ( In re Marriage of Candiotti (1995) 34 Cal.App.4th 718, 722.) We urge the parents to set aside their diffe rences for the benefit of the children.
DISPOSITION The order is affirmed.

M C INTYRE, Acting P. J.
WE CONCUR: O'ROURKE, J. AARON, J.