Filed 10/16/13 Marriage of Warren CA2/6 

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS 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 This opinion has not been certified for publication 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. 

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA 

SECOND APPELLATE DISTRICT 

DIVISION SIX 

In re Marriage of KARIN and JASON 

WARREN. 

2d Civil No. B244870 

(Super. Ct. No. D325275) 

(Ventura County) 

KARIN WARREN, 

 Appellant, 

v. 

JASON WARREN, 

 Respondent. 

 Parents have joint physical custody of their minor children. Mother filed 

an order to show cause in which she requested that she be allowed to move with the 

children from Ventura to Orange County. The trial court denied mother's request for a 

move-away order and ordered a change in custody arrangements upon mother's move. 

Mother appeals. We affirm. 
2 

FACTS 

 Karin and Jason Warren were married in December 2000 and separated in 

November 2007.1

 They have two minor children of the marriage: Riley, born October 

2001, and Kalli, born September 2005. 

 The parties entered into a stipulated judgment of dissolution in August 

2008. The judgment provided for joint legal and physical custody of the children. Jason 

had the children three nights a week and Karin had them three nights a week. The parties 

had the children on alternate weekends. The judgment also provided that "[n]either party 

shall change the residence of the minor child[ren] from the [C]ounty of Ventura or Los 

Angeles County without the written consent of the other party or without a prior court 

order." 

 In June 2012, Karin filed an order to show cause in which she sought to 

move with the children to Orange County. Jason sought a change in child custody: 

Karin have the children every Monday and Tuesday; Jason have the children every 

Wednesday and Thursday; and the parties alternate Friday through Sunday. 

 Karin claimed she needed to relocate with the children because the only 

teaching job she could find is in Orange County. She said Jason originally approved the 

relocation, but changed his mind when she made an adverse comment about his 

girlfriend. She claimed to be the primary custodial parent. 

 Jason declared Karin's request was not made in good faith. The move was 

not for employment, but so that she could be with her boyfriend. Jason claimed the move 

would not be in the best interest of the children because: It would reduce his time with 

them; it would disrupt their education, especially for Riley who has special educational 

needs; it would disrupt the stability of the children's lives, all of whom have lived in 

Ventura County where all their friends and activities are. Jason denied Karin was the 

 1 Hereafter we refer to the parties by their first names, not out of disrespect 

but to ease the reader's task.
3 

primary custodial parent. He said the children spent approximately equal time with the 

parties. 

 The trial court ordered the parties to mediation. The mediator testified: 

The parties have "fairly equal" custody time with their children. The children have a 

good relationship with both parents and the co-parenting relationship is working and 

effective. Relocation could affect their relationship with their father. The children are 

connected to their school community through friends and activities. They have a bond 

with large extended family in Ventura County that could be impacted if the children are 

relocated. Riley has special needs and currently has an education plan at his school to 

meet those needs. The children need stability and continuity in their schedule, which 

they currently have. 

 The trial court found: Both parties love their children and want what is 

best for them. But, as is often the case, each parent views what is best for the children 

through a prism of his or her own desires and interests. "In this case it is the Mother's 

perspective which has been most distorted by this view." The court found that Karin's 

stated need for employment is genuine. The court, however, concluded: "Considering 

the children's interest in stability and continuity in the custodial arrangement, the distance 

of the proposed move, the ages of the children, their relationship with each of their 

parents, the relationship between the parents, the reasons for the proposed move and the 

current custodial arrangement, the Court finds that the best interests of the children are 

served by remaining in their existing community, with their existing school, peer and 

familial ties. While Mother's move to Orange County has the potential to affect the 

mother/child relationship, her bond with each of the children appears to be sufficiently 

strong and well-established that any significant impairment of relationship is unlikely." 

 The court ordered that upon relocating out of Ventura County, Karin will 

have physical custody every other weekend during the school year. During the summer, 

the parties will alternate weeks. The order also specified custody for school breaks, 

holidays and birthdays. Finally, the court ordered that "[n]either party shall change the 
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residence of the children out of Ventura County without the written permission of the 

other party or a court order." 

DISCUSSION 

I. 

 Jason notes that the statement of facts in Karin's opening brief is almost 

entirely bereft of citations to the record. California Rules of Court, rule 8.204(a)(1)(C) 

requires such citations. Jason urges us to dismiss the appeal for failure to comply with 

the rule. Given the importance of custody orders to the children involved, we decline to 

do so. 

 Karin's statement of the facts consists of a view most favorable to her. It 

may be helpful at the outset to state how we must view the facts on appeal. 

 In viewing the evidence, we look only to the evidence supporting the 

prevailing party. (GHK Associates v. Mayer Group, Inc. (1990) 224 Cal.App.3d 856, 

872.) We discard evidence unfavorable to the prevailing party as not having sufficient 

verity to be accepted by the trier of fact. (Ibid.) Where the trial court or jury has drawn 

reasonable inferences from the evidence, we have no power to draw different inferences, 

even though different inferences may also be reasonable. (9 Witkin, Cal. Procedure 

(5th ed. 2008) Appeal, § 370, pp. 427-428.) The trier of fact is not required to believe 

even uncontradicted testimony. (Sprague v. Equifax, Inc. (1985) 166 Cal.App.3d 1012, 

1028.) 

II. 

 Karin contends the trial court applied the wrong standard when it made a de 

novo determination of the children's best interest. 

 Where a party who has sole physical custody seeks to relocate with the 

parties' children, the party opposing the move bears the burden of showing there has been 

a substantial change of circumstances rendering it "essential or expedient" for the welfare 

of the children that there be a custody change. (In re Marriage of Burgess(1996) 13 

Cal.4th 25, 38.) Where, however, the parties share joint physical custody and one party 
5 

seeks to move away, neither party has the burden, and the trial court must determine 

custody de novo based on the best interest of the children. (Id. at p. 40, fn. 12.) 

 Karin claims that she has primary physical custody of the children. She 

argues that having primary physical custody entitles her to the presumption that she can 

determine the residence of the children pursuant to In re Burgess, supra, 13 Cal.4th, page 

38. 

 But the presumption in Burgess applies to a parent who has sole physical 

custody. Here the parties have joint physical custody. No presumption applies, and the 

trial court makes a de novo custody determination. (In re Burgess, supra, 13 Cal.4th at p. 

40, fn. 12.) The term "primary physical custody" has no legal meaning within the context 

of a move-away order. (In re Marriage of LaMusga (2004) 32 Cal.4th 1072, 1081, fn. 1; 

In re Marriage of Richardson (2000) 102 Cal.App.4th 941, 945, fn. 2.) Physical custody 

is either sole or joint. (Ibid.) Here it is joint. 

 In any event, Karin's argument that she has primary physical custody is 

based on her view of the evidence. Both Jason and the mediator testified that the parties' 

physical custody time was approximately equal. To the extent it may make a difference, 

we must presume the trial court found the parties custody time was approximately equal. 

(See GHK Associates v. Mayer Group, Inc., supra, 224 Cal.App.3d at p. 872.) 

 Karin argues the trial court erred in treating the matter as an initial 

custody determination. Karin points to no specific finding of the trial court. She 

apparently concludes that the trial court treated the matter as an initial custody 

determination because it made a de novo determination based on the best interest of the 

children. But a de novo determination based on the best interest of the children is also 

the correct standard where, as here, the parties share joint physical custody. (In re 

Marriage of Burgess, supra, 13 Cal.4th at p. 40, fn. 12.) The trial court applied the 

correct standard. 

III. 

 Karin contends the trial court abused its discretion in changing the custody 

arrangement in Jason's favor. 
6 

 The trial court's well-written order reflects it carefully considered the 

declarations and testimony of both parties and the custody mediator. Based on the 

evidence, the trial court decided it is in the best interest of the children that they have the 

stability provided by continuing to reside in Ventura County. This is a reasonable 

resolution of this custody dispute. 

 Karin's contention that the trial court abused its discretion is based on a 

view of the evidence most favorable to her. Suffice it to say, we must view the evidence 

in a light most favorable to the judgment or order. (GHK Associates v. Mayer Group, 

Inc., supra, 224 Cal.App.3d at p. 872.) The trial court did not abuse its discretion. 

 The judgment (order) is affirmed. Costs are awarded to Jason. 

 NOT TO BE PUBLISHED.

 GILBERT, P. J. 

We concur: 

 YEGAN, J. 

 PERREN, J. 
William Q. Liebman, Judge 

Superior Court County of Ventura 

______________________________ 

 Alison Minet Adams for Appellant. 

 Vanessa Kirker Wright for Respondent.