Filed 8/29/22 Marriage of Rodgers CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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or ordered published for purposes of rule 8.1115. 

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

In the Marriage of SOLOMON 

RODGERS and YVONNE M. 

RODGERS.

SOLOMON RODGERS,

Respondent,

v.

YVONNE M. RODGERS,

Appellant.

 D079456

 (Super. Ct. No. DN178794)

APPEAL from an order of the Superior Court of San Diego County, 

Matthew Brower, Judge. Reversed.

The Appellate Law Firm and Berangere Allen-Blaine for Appellant.

Goldberg Jones and Siobhan H. Curley for Respondent. 

Yvonne M. Rodgers (Mother) appeals a change of custody order 

granting Solomon Rodgers, Jr., (Father) physical custody of their two younger 

children, L.R. and A.R. She contends the court abused its discretion by 

engaging in an analysis of the best interests of the children without first 
2

finding a substantial change in circumstances that made it essential to the 

welfare of the children to change the custody arrangement. We agree, and we 

accordingly reverse.

FACTUAL AND PROCEDURAL BACKGROUND

Mother and Father share three children, S.R., L.R., and A.R., who 

were 16, 12, and 8 years old respectively at the time of the hearing. An 

October 29, 2018 custody order granted parents joint legal custody and 

granted physical custody of S.R. to Father and physical custody of L.R. and 

A.R. to Mother. Father had visitation with L.R. and A.R. on the first, third, 

and any fifth weekend from Friday night to Sunday night. Father also had 

visitation for half of summer, alternating holidays, and two weeks of vacation 

each year. 

On May 5, 2021, Father filed a request for order to change the custody 

arrangement so that he would have physical custody of L.R. and A.R., and his 

child support payment would be reduced.1 Other than the proposed 

visitation for Mother on the second and fourth weekends of each month, half 

the summer, alternating holidays, and two weeks of vacation, he asked for 

the children to remain in his care at all times. 

In his supporting declaration, Father explained L.R. told him in 

February 2021 that she was under stress from playing a “parental role” at 

Mother’s house; she was expected to get ready for school and also help her 

sibling A.R. log into Zoom and assist with his day-to-day activities. Father 

reported that L.R. told him there was lack of structure in Mother’s home, 

giving as an example that they must take their clothes from a clean pile of 

laundry in their room until the pile is gone. Father also explained that L.R.’s 

1 Father’s request does not seek a move-away order or seek any changes 

to custody of S.R. 
3

grades suffered; and she was earning F’s in English and in literature, D’s in 

math and science, and a zero credit in physical education.2 L.R. had a total 

of 69 absences from seven classes,3 which Father asserted demonstrated a 

lack of educational and emotional support under Mother’s care. 

Father reported that A.R. has an Individualized Education Plan (IEP). 

Mother said A.R. was diagnosed with a learning disability and potentially 

autism but refused to share those records with Father when requested. 

Father told the court there had been multiple reports to child welfare 

services regarding the quality of Mother’s care of children, but he declined to 

provide any details and asked the court to subpoena the records. 

Father also said he was concerned about Mother’s mental well-being 

because of statements she made to him, such as, “My kids are my oxygen.” 

In his declaration, Father contrasted Mother’s parenting with his own. 

He facilitates L.R.’s monthly orthodontic appointments. When Mother failed 

to take A.R. for a needed hearing test or to purchase eye-glasses for the 

children, he handled those needs. Father further detailed his involvement in 

L.R.’s education, explaining he communicates directly with her teachers and 

helps her catch up on schoolwork to help improve her grades. 

The custody dispute came for hearing on August 10, 2021. The court 

heard testimony from Father, Mother, and S.R., as well as Mother’s friend, 

2 It is unclear whether the court considered the documentary evidence 

attached to the petition. The court told the parties there were no exhibits 

formally admitted, so it was strictly limiting the evidence to the testimony of 

the witnesses it heard. The records for L.R.’s grades are an undated printout from the internet and that the progress grades for physical education and 

science differ in appearance from the other subjects. 

3 The record shows 18 absences in journalism, 12 absences in English, 

12 absences in science and physical education, and five absences each in 

math, literature, and social studies. 
4

Richard Lovato, Jr. Father’s testimony was consistent with the information 

he provided in declarations, including his descriptions of his involvement in 

the children’s medical and orthodontic care. He was motivated to seek a 

change in custody because L.R. was asking to live with him, but Mother 

would not let her. He believed L.R. wanted to live with him because Mother’s 

living space is smaller and L.R. shares a room with an older sister, does her 

own laundry unsupervised, and has clothes in the middle of the floor. He 

believed there was no help with homework and L.R. had to help care for her 

younger brother; she just did not want to live with Mother. 

Father also testified that his home was big enough for all the children 

to have their own rooms; L.R. would be able to start gymnastics and A.R.

would be able to start baseball, and he and his wife would help their children 

with their education. He already was helping L.R. with homework on the 

weekends, which they would scan to submit to teachers. He described 

himself as structured and rigid, with set bedtimes and supervision, in 

contrast to Mother’s style, which is “very loose” because she has her own 

schoolwork to do and she tries to be “their friend.” He noted that Mother 

struggles financially; Father buys the children clothes and takes care of their 

medical needs. He admitted these same concerns had been ongoing since 

2012. 

When pressed, Father told the court he wanted the change in custody 

so that he could work more closely on their educational needs and their 

mental health, but also because financially he could support them; clothing is 

always an issue, and he would provide more supervision. He said, “Just 

overall in general[,] their wellbeing. But education[ ] and their healthcare 

[are] my . . . reasons.”
5

Father knew A.R. had an IEP, but he could not remember how many 

IEP meetings he attended since 2017, if any. He testified he was not sure if 

he was ever made aware of those meetings. 

Mother testified that Father’s contact information was on all school 

records. She tried to secure therapy for L.R. during the pendency of the 

divorce, but Father refused the therapists she selected. A.R. receives services 

through the Regional Center, packaged with his IEP, focusing on speech, fine 

motor skills, and social interactions. 

Mother blamed Father for losing her job because he refused to watch 

the children while she underwent training for work. Before the divorce was 

final, father stopped paying her rent and she was evicted, so she lived in her 

car for a year and a half with the children. She also spent some time living 

with her mother-in-law and her sister.4 

She also explained she had been furloughed from YMCA for about a 

year and a half because of COVID. Before that job, in which she worked 

doing in-home respite care, she was a military youth counselor. The YMCA 

terminated her employment two months before the hearing. She believed 

Father was seeking custody of the children because he had just bought a 

home in Temecula and he did not want to pay as much in child support. 

Mother testified that L.R. was doing average to very well in school until 

COVID. Because she and Father sometimes split weeks over holiday weeks, 

sometimes when L.R. was with him, she was not doing homework, and she 

fell behind. Mother asked Father to make sure he would help L.R. with 

homework. 

4 These events all predated the final custody order. Mother’s living 

arrangements stabilized by 2015. 
6

Mother had ensured A.R. was getting services since he was about three 

years old; she enrolled A.R. in after school programs with art shows and field 

trips and other social activities. She also had a nanny who worked with A.R. 

She attended all of A.R.’s IEP meetings and secured A.R. an In-Home 

Supportive Services (IHSS) program approval. 

During COVID, they shared the children every other week for a 

particular month, and in November, Father kept the children for a couple 

weeks, but other than that, L.R. and A.R. were with Mother. 

Mother felt that Father used his financial status to sway the children 

by telling them he would provide them with their own rooms, all the toys 

they wanted, a pool to play in, and travel to other countries. 

Mother told the court she loved her children passionately, and she said,

“my children are my heart,” and “[t]hey are my oxygen because I love them.” 

Mother admitted she said Father was trying to kill her when he brought the 

custody motion, but she meant he was causing her anxiety, and she made the 

comment metaphorically. 

S.R. testified that after his father took custody, he attended New 

Mexico Military Institute, where he did not perform well. Then he 

transferred to Escondido Charter High School for his ninth and tenth grade 

years. He did pretty well there academically, which he attributed to the 

flexibility of the program because he could choose which days to attend in 

person as well as the pace of the work and overall workload. He said Father 

makes sure he completes his homework, and Mother also tries to make sure 

he keeps his grades up by checking grades and the work he submits. 

He would prefer to live with his Mother because of the convenience of 

being near schools, and because he prefers her neighborhood and likes being 

with his siblings. He said he dislikes some of the structure at his father’s 
7

house, like waking up at the same time each day no matter what, and 

working during the same times every day, even on days off. He said he 

thinks his parents could do better at communication and not arguing. 

Richard Lovato, Jr., testified regarding his observations of the parents’

exchanges of the children. He also testified that he saw A.R. upset with 

Father for cutting his hair, noting that any drastic change can “set off” a child 

with autism. 

Following arguments by the attorneys, the court addressed the factors 

outlined in In re Marriage of Burgess5 and Marriage of LaMusga6 because 

Father planned to move the children out of the county. When it addressed 

the seventh Burgess factor, the court turned to the reason for the proposed 

move: “The father is proposing this move so that the children could have 

their educational needs more fully addressed.” The court also referenced the 

need for clothing and L.R.’s mental health. It concluded the eight factors that 

go toward a move-away were supported. Then it went through the four 

LaMusga factors. It concluded it would grant the move-away request. It 

wanted to keep the siblings together. 

The court ordered the parents to share legal custody. It awarded 

Father primary legal custody to select the children’s school location in the 

event of a disagreement between him and Mother and stated, “Once that 

school location is decided the mother has coequal legal custody rights . . . .” 

The written order provides that “[t]he children shall primarily reside 

with the father.” It also states, “The mother . . . shall care for the children all 

but the first weekend of each month from Friday at [5:00] [p.m.] to Sunday at 

5 In re Marriage of Burgess (1996) 13 Cal.4th 25 (Burgess).

6 Marriage of LaMusga (2004) 32 Cal.4th 1072 (LaMusga).
8

[7:00] [p.m.] [¶] . . . The child shall be in the father’s care at all other times 

not specified.”7 The order also provides that “[s]hould mother relocate her 

primary residence to the children’s community[,] the physical custody 

arrangement of the children will be a week on and a week off rotation 

between the parents with the exchanges occurring on Fridays at 7:30 p.m.” It 

retained the holiday, summer, and vacation visitation schedule that had been 

in place. 

The court commented that the reason for its legal custody decision 

turned on the poor coparenting practices and in particular “the poor grades 

that children had when primarily in the care of their mother.” It noted that 

“[w]hether the cause of those poor grades stemmed from COVID or 

alternatively predated COVID was a little difficult to discern, but I think it’s 

probably the latter. And the reason I say that is because [S.R.]’s grades were 

failing grades even before COVID. So it makes it more likely in my view that 

L.R.’s grades also were slipping and her performance in school was slipping 

similar to her brother’s [pre-COVID].” 

The court also said that the parenting environment at Mother’s was not 

very structured, which “created in all likelihood a detrimental effect on the 

children’s grades.” The court told the parties that having “a little bit less 

structure from time to time” was acceptable, but there is “a need for parents 

to encourage through structure of their children to succeed in school. And so 

7 The language of the written order appears internally contradictory. 

Although it states the children shall primarily reside with Father, it also 

states Mother shall care for the children at all times other than the first 

weekend of the month. It appears the court intended to award primary 

physical custody to Father at all times other than the weekends, and Mother 

was to care for the children all weekends other than the first weekend of each 

month. However, that is not what the order says.
9

I think we need to empower that to occur, and the best way I see as being 

able to do that is from the legal custody that I put in place.” 

The court stayed the move-away order for 30 days, but the legal 

custody order was effective as of the date of the hearing. 

Mother appealed on September 8, 2021. 

DISCUSSION

A. Legal Principles

In an initial custody determination, the court applies a “ ‘best interest’ ”

analysis, which gives the court wide discretion to choose a parenting plan in 

the best interests of the children based on all the circumstances. 

(Ragghanti v. Reyes (2004) 123 Cal.App.4th 989, 996 (Ragghanti); Fam. 

Code,8 § 3040, subd. (a).) Once an arrangement has been deemed by the 

court to be in the best interest of the child, the court should not revisit that 

analysis. Instead, the custodial arrangement should be maintained unless 

there is a significant change in circumstances indicating a different 

arrangement would be in the child’s best interest. (Burgess, supra, 13 

Cal.4th at p. 38.) 

Accordingly, “ ‘[o]rdinarily, after a judicial custody determination, the 

noncustodial parent seeking to alter the order for legal and physical custody 

can do so only on a showing that there has been a substantial change of 

circumstances so affecting the minor [children] that modification is essential 

to the [children]’s welfare. [Citation.] As we have explained: “The [changed 

circumstance] rule requires that one identify a prior custody decision based 

upon circumstances then existing which rendered that decision in the best 

interest of the child. The court can then inquire whether alleged new 

8 Further undesignated statutory references are to the Family Code.
10

circumstances represent a significant change from preexisting circumstances, 

requiring reevaluation of the child’s custody.” ’ ” (In re Marriage of Biallas 

(1998) 65 Cal.App.4th 755, 761 (Biallas).) Thus, when a noncustodial parent 

seeks a change in custody, he or she must offer “proof that, due to a 

substantial change in circumstances, it would be in the best interest of the 

child to change the custody order.” (Id. at p. 759, citing Burgess, supra, 13 

Cal.4th at pp. 37-38.) 

This test is an adjunct test that provides that the established custody 

arrangement should be preserved unless a change in circumstances indicates 

a different arrangement would be in the child’s best interests. (Ramsden v. 

Peterson (2022) 76 Cal.App.5th 339, 344.) “The changed circumstances test 

requires a threshold showing of detriment before a court may modify an 

existing final custody order that was previously based upon the child’s best 

interest.” (Ragghanti, supra, 123 Cal.App.4th at p. 996.) “ ‘The reasons for 

the rule are clear: “It is well established that the courts are reluctant to 

order a change of custody and will not do so except for imperative reasons; 

that it is desirable that there be an end of litigation and undesirable to 

change the child’s established mode of living.” ’ ” (Christina L. v. 

Chauncey B. (2014) 229 Cal.App.4th 731, 738 (Chauncey B.).)

Further, “[i]n a ‘move-away’ case, a change of custody is not justified 

simply because the custodial parent has chosen, for any sound good faith 

reason, to reside in a different location, but only if, as a result of the 

relocation with that parent, the child will suffer detriment rendering it 

‘ “essential or expedient for the welfare of the child that there will be a 

change.” ’ ” (Burgess, supra, 13 Cal.4th at p. 38.) In move-away situations, 

“the trial court has broad discretion to modify orders concerning contact and 

visitation to minimize the minor children’s loss of contact and visitation with 
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the noncustodial parent in the event of a move, e.g., by increasing the amount 

of visitation with the noncustodial parent during vacations from school, 

allocating transportation expenses to the custodial parent, or requiring the 

custodial parent to provide transportation of the children to the noncustodial 

parent’s home.” (Id. at p. 40; see also § 3011, subds. (a)(1) & (a)(3) [factors a 

court must consider regarding effects of relocation on best interest of a 

minor].) However, a custodial parent’s decision to move away is not a change 

of circumstances. (Biallas, supra, 65 Cal.App.4th at p. 762.)

We review custody and visitation for an abuse of discretion. (Burgess, 

supra, 13 Cal.4th at p. 32.) “This discretion may be abused by applying 

improper criteria or by making incorrect legal assumptions.” (Jane J. v. 

Superior Court (2015) 237 Cal.App.4th 894, 901 (Jane J.).) “Because the trial 

court must exercise its discretion in light of important policy considerations, 

appellate courts are less reluctant to find an abuse of discretion when custody 

is changed than when custody is originally awarded. Reversals of changed 

custody orders have not been uncommon. [Citation.] This is because, 

‘ “[w]hen custody continues over a significant period, the child’s need for 

continuity and stability assumes an increasingly important role.” [Citation.] 

This principle avoids an endless round of emotionally and financially 

draining litigation in family law courts.’ ” (In re Marriage of C.T. & R.B.

(2019) 33 Cal.App.5th 87, 97.)

B. Analysis

Father was the custodial parent of S.R., and Mother had physical 

custody of L.R. and A.R. Further, Father was moving away from the area 

where L.R. and A.R. resided. Thus, different criteria were required for S.R.
12

than for L.R. and A.R.9 With respect to L.R. and A.R., Father was required 

to demonstrate there had been such a significant change from preexisting 

circumstances that affected them that a change in physical custody was 

essential to their welfare. (See Burgess, supra, 13 Cal. 4th at p. 38; Biallas,

supra, 65 Cal.App.4th at p. 761.) Then, after Father had met this threshold 

requirement, the court could reevaluate the custody arrangement based on 

the best interests of the children. (Biallas, at p. 761.)

Mother contends Father failed to demonstrate a change in 

circumstances, and the trial court failed to find one. We agree. It is unclear 

from the record before us what the court concluded the changed 

circumstances were that precipitated a modification to the custody 

arrangement, and thus permitted a broader consideration of the children’s 

best interests. 

Father’s petition alleged L.R. was under stress during virtual learning 

from playing a “parental role” because she was expected to help A.R. log into 

Zoom while also getting ready for school, and because there was a lack of 

structure in Mother’s home, including for example, requiring L.R. to take her 

clothes from a pile of clean laundry. Father also alleged L.R.’s grades 

suffered, and she lacked educational and emotional support at Mother’s. He 

also explained that Mother had indicated A.R. was diagnosed with a learning 

disability and potential autism; Mother had taken responsibility over A.R.’s 

apparent autism diagnosis, and A.R. had an IEP. However, Father does not 

9 Although Father never requested an order granting him permission to 

move away to Temecula, in his bid for physical custody of L.R. and A.R., the 

court treated the request as having been made. Mother does not challenge 

the court’s order granting Father continued physical custody of S.R. with 

increased visitation for Mother. Accordingly, we do not address this issue in 

our opinion. (See § 7501 [custodial parent has right to change residence of 

child unless removal would prejudice child’s rights or welfare].)
13

articulate any specific, substantial change in circumstances of Mother’s 

parenting or home structure since the initial custody award. He admitted at 

the hearing that his concerns were the same he had since 2012, well before 

the custody order was entered in 2018. 

Father’s appellate brief references “various changes of circumstance,”

including educational, physical, and mental needs that were remaining 

unmet under Mother’s care. He argues the court made “an inherent finding 

as to the [changed circumstance] requirement,” and he ultimately contends 

he met his burden because he “demonstrated the threshold showing of 

detriment to request a modification order.” However, this does not clarify for 

us what constituted the changed circumstance. 

It could be L.R.’s poor grades, as the court stated L.R.’s grades were 

“slipping.” However, there is no information in the record showing L.R.’s 

performance had changed from the time custody was awarded initially, and 

Mother denied the claim. Further, the court also explained it could not tell if 

L.R.’s grades were the result of changes to the learning environment due to 

COVID or if poor grades predated COVID. Because there is no information 

in the record showing L.R.’s performance had changed, or any information 

regarding A.R.’s performance in school at all, we cannot be certain this 

signified “ ‘ “a significant change from preexisting circumstances, requiring 

reevaluation of the child’s custody.” ’ ” (Biallas, supra, 65 Cal.App.4th at 

p. 761.) 

Even if L.R.’s grades properly constitute a change in circumstance, that 

says nothing about A.R.’s situation. Perhaps the changed circumstance for 

A.R. is the autism diagnosis. However, Father does not point us to any 

evidence in the record that A.R.’s autism diagnosis meant a custody 

modification was essential to his well-being. Mother was ensuring A.R. was 
14

receiving services, had attended all his IEP meetings, and procured IHSS 

approval. 

The court’s discussion of legal custody does not elucidate its reasoning 

regarding the finding of a changed circumstance. The court never uses the 

words “changed circumstance” in its discussion or order. It told the parties 

that “the reason for the legal custody decision [it] made . . . turned more 

on . . . the poor coparenting practices that have been exercised by these 

parents, and in particular the poor grades that children had when primarily 

in the care of their mother.” It is not clear if this explanation refers to its 

decision to award Father primary legal custody to select the children’s school 

locations in the event of a disagreement, or if the court misspoke and 

intended to articulate a reason for changing primary physical custody from 

Mother to Father. 

The court’s custody order itself likewise provides no clarity. The court 

ordered the parties to share physical custody with one week on and one week 

off if Mother were to relocate her primary residence to the same physical 

community as Father. This suggests that Mother’s lack of structure may not 

have been a “changed circumstance[ ]” that was so detrimental to L.R.’s and 

A.R.’s well-being that it was essential to their welfare that custody be 

changed. (See Ragghanti, supra, 123 Cal.App.4th at p. 996; see also 

Chauncey B., supra, 229 Cal.App.4th at p. 738.)

As our discussion of various possibilities here demonstrates, it is 

difficult to tell whether the court applied the appropriate threshold test at all. 

Its failure to properly identify and evaluate the changed circumstances before 
15

addressing the factors detailed in LaMusga, supra, 32 Cal.4th 1072 and 

Burgess, supra, 13 Cal.4th at p. 32, constitutes an abuse of discretion.10 (See 

Jane J., supra, 237 Cal.App.4th at p. 903.)

DISPOSITION

The August 10, 2021 custody order that adopts the Family Court 

Services report dated July 29, 2021 with modifications and awards Father 

primary physical custody of L.R. and A.R. is reversed. Mother is awarded her 

costs on appeal. 

HUFFMAN, Acting P. J.

WE CONCUR:

DO, J.

BUCHANAN, J.

10 Mother contends separately, in connection with her request for judicial 

notice, that it was error to grant Father’s request for primary physical 

custody because he now faces criminal charges in a different matter. We 

deny Mother’s request for judicial notice, as it regards matters that were not 

before the court at the time of its custody decision.