This complex custody case addresses many of the topics discussed in this chapter, including application of the best interest test, joint custody presumptions, the relocation of the custodial parent, and virtual visitation. Complete the questions below. I am also attaching the link for the original case if you wish to reference it.

DANTI v. DANTI(Links to an external site.)

146 Idaho 929, 204 P.3d 1140 (2009)

J. JONES, Justice.

Ed Danti appeals the divorce decree entered between himself and his ex-wife, Michelle Danti, particularly challenging the provisions awarding Michelle sole physical custody of their two children and allowing her to relocate with the children to California.

Ed and Michelle were married in California in 1996. During their marriage, the couple had two daughters one in 1998 and the other in 2004. At the time of the proceedings in this matter, the children were eight and two years old, respectively.

Ed and Michelle lived in California until 2004. While there, Ed ran a residential remodeling company and Michelle owned and operated her own day care. They decided to move to Meridian, Idaho, in July 2004. Their plan was to stay in Idaho for a few years and then possibly relocate to California. Once the family arrived in Idaho, Ed began his own custom tile business and Michelle stayed at home with the children.

In August 2005, Ed hired a designer, Heather Clark, to assist him with some of his remodeling projects. Approximately one month after Ed hired Heather, he and Michelle began considering divorce. Michelle was unhappy living in Idaho and the couple fought frequently. Although no definitive resolution was reached, the couple decided to temporarily separate. During their period of separation, Ed continued to live in the couple's home.

Shortly after Ed and Michelle decided to separate, Michelle learned from Heather's husband that Ed was likely having an affair with Heather. Michelle confronted Ed with this information and he admitted having an emotional connection to Heather, but denied any sexual relationship. Over time, however, Ed's romantic feelings for Heather grew. When Ed eventually told Michelle of his feelings for Heather, Michelle informed him that she wanted to move back to California but she agreed not to leave until Ed returned from a trip he was taking to California. In return, Ed agreed to allow Michelle to move to California with the children once he arrived back in Idaho. . . .

Once Ed returned from his trip, Michelle decided to move back to California. Thereafter, Michelle and the children returned to California, but continued to have daily conversations with Ed. During the course of those conversations, Ed was able to convince Michelle to come back to Idaho. Michelle agreed to return after Ed promised that he would end both his personal and professional relationships with Heather.

Once Michelle arrived back in Idaho, she began to suspect that Ed was still seeing Heather. By December 2005, it became obvious to Michelle that, despite his promise, Ed was continuing his relationship with Heather. Consequently, Michelle informed Ed that she planned to return to California. Ed then signed another consent letter giving Michelle his permission to permanently move to California with the children. Before Michelle was able to leave, however, Ed broke down and begged her not to go. Once again, he promised Michelle that if she stayed with him he would end his relationship with Heather. Ed's promise persuaded Michelle and the couple decided to return to California together.

While in California, Michelle learned that Ed was still having regular communications with Heather. Michelle confronted Ed about the communications and he admitted that he had been in touch with Heather. After the confrontation, Ed decided to fly back to Idaho. Once here, he continued to try to convince Michelle to reconcile with him by denying any sexual relationship with Heather.

Ed ultimately persuaded Michelle to move back to Idaho. After returning, Michelle observed Heather at one of Ed's jobsites. This angered Michelle, who decided to call Heather and request a meeting. Michelle then went to Heather's house and the two women discussed their relationships with Ed. Perhaps unsurprisingly, Michelle and Heather discovered that Ed had been lying to both of them. In the midst of their conversation, Ed arrived and admitted that he had been sexually intimate with both women. Upon learning this information, Michelle became upset and left Ed at Heather's house. Although Ed went home briefly that night to pack his belongings, he ended up spending the night with Heather.

The next morning Ed went home to apologize to Michelle. After Ed arrived, however, the couple began arguing and Ed "became enraged and grabbed Michelle by the arms, pushing her up against the laundry room door while screaming at her and poking her in the chest with his finger." All of this occurred in front of the couple's youngest daughter. When Michelle was finally able to break free from Ed, she took her daughter and went to the police station. Michelle reported the incident to the police and Ed was charged with domestic battery. A no contact order was issued and Ed subsequently pleaded guilty to the lesser charge of disturbing the peace. After the issuance of the no contact order, Ed moved in with Heather because he could no longer live in the same house as Michelle.

In March 2006, Michelle filed a complaint for divorce against Ed, in which she alleged irreconcilable differences, adultery, and extreme cruelty. A temporary custody order was issued in May 2006, granting Michelle primary physical custody of the children. The order conditioned Ed's visitation with the children on him not living with Heather and on Heather not being present during visitation. It also required Ed to pay Michelle sixty percent of his net income.

Over the next few months, the intensity of the conflict between Michelle and Ed increased. On more than one occasion, the parties filed police reports alleging that the other had committed various crimes. Additionally, the police were called during at least one custody exchange. At several other exchanges, the couple argued in front of their daughters about topics ranging from the children's involvement in extracurricular activities to visitation schedules and missing clothing.

A trial regarding the divorce, child custody, and child support was held on December 15, 2006. After the trial, the court granted Michelle's request for a divorce on the grounds of extreme mental cruelty and adultery. The judge awarded Ed and Michelle joint legal custody of the couple's children, but granted Michelle sole physical custody. As part of the custody arrangement, Michelle would be permitted to move to California with the children and Ed would receive visitation with the girls in Idaho during portions of their winter, spring, and summer breaks. Ed would also be allowed to visit the girls in the Sacramento, California, area once per month and on certain holidays. . . .

Ed now appeals to this Court. He alleges that the court's award of sole physical custody to Michelle was an abuse of discretion because it: (1) violated Idaho's presumption in favor of joint custody; (2) was not in the best interests of the children; (3) was improperly based on Michelle's status as the children's primary caregiver; (4) disregarded Michelle's numerous acts of "secretly and wrongfully" taking the children out of the state; (5) was based on clearly erroneous findings of fact; and (6) was not based upon a custody evaluation performed by a neutral third party. . . .

n Idaho, the children's best interests are of paramount importance when making decisions regarding the children's custody, including decisions relating to where the children will reside. . . . In determining what is in the children's best interests, courts are required to consider all relevant factors. Relevant factors may include, but are not limited to: the parents' wishes for the children's custody; the children's wishes; the interrelationship and interaction between the children and their parents and siblings; the extent the children have adjusted to their school, home, and community; the character and circumstances of the persons involved; the need to promote continuity and stability in the children's lives; and domestic violence. I.C. 32-717(1)(a)-(g). Additionally, unless one parent is a habitual perpetrator of domestic violence, courts are required to apply Idaho's presumption that an award of joint custody is in the children's best interests. . . . An award of joint custody must provide "that physical custody . . . be shared by the parents in such a way as to assure the . . . children [have] frequent and continuing contact with both parents. . . .

[A] court may decline to award joint custody if doing so will serve the children's best interests. . . . The court must, in addition, "state in its decision the reasons for denial of an award of joint custody." I.C. 32-717B(1). These considerations apply where a parent wishes to relocate with his or her child. An award of physical custody to a relocating parent may only be made if he or she proves that the move is in the children's best interests. . . .

The trial court did not abuse its discretion by awarding Michelle sole physical custody of the children.

Several of the section 32-717 factors played only a slight role in the court's analysis. More specifically, the court concluded that the children's wishes, parents' wishes, and domestic violence were of little consequence. In regards to the children's wishes, the youngest child's wishes were unknown and the oldest child had only expressed her desire to live with her mother on one occasion. Accordingly, their wishes were only given slight weight in the court's analysis. The parents' wishes for the children's custody also had little bearing on the court's decision. The court gave due regard to the parents' wishes but, because they were conflicting, concluded that they did not favor awarding custody to one parent over the other. Finally, domestic violence was of little concern to the court because there was no established pattern of violent behavior by either party. Rather, there was only one occasion of reported violence committed by Ed. Because there was no evidence of habitual domestic violence, the court also concluded that the presumption in favor of joint custody applied.

Of more importance to the court was its concern for continuity and stability in the children's lives. The court concluded that this factor favored awarding physical custody to Michelle. It reasoned that in light of the children's young age they "gain security from a stable environment in which

heir needs are consistently met." Because Michelle had served as the children's primary caregiver their entire lives and was "best able to meet their physical and psychological needs consistently," she would be more likely to further these objectives. At the same time, the children's need for stability weighed against awarding physical custody to Ed because "he inappropriately involved the children directly in his conflict with Michelle by denigrating her character to them."

Ed disputes the trial court's reliance on Michelle's status as the children's primary caregiver in making its custody award. In doing so, he attempts to analogize the facts of this case to the facts in Hopper v. Hopper, 144 Idaho 624, 167 P.3d 761 (2007). In Hopper, the trial court awarded a mother temporary custody after she secretly moved to Montana with her son and obtained a fraudulent domestic violence protection order against the father. . . .

Ed's attempt to analogize the facts of this case to those in Hopper is unpersuasive. Unlike the domestic violence claim in Hopper, Michelle's claim has not subsequently been determined to be false. Although Ed points to facts that, if true, would tend to undermine Michelle's claim, there was also evidence to support the court's conclusion that Ed was violent with Michelle. The court had before it a police report describing the event, Ed's guilty plea, and Michelle's testimony. Moreover, the trial court specifically found Michelle's account of the event that gave rise to the domestic battery charge more credible.

This case is also distinguishable from Hopper because Michelle did not secrete the children from Ed. Unlike the mother in Hopper who secretly moved with the child to Montana, Michelle moved to California with the children only after informing Ed and, on two occasions, obtaining his written consent. Nonetheless, Ed attempts to characterize Michelle's moves to California with the children as "kidnapping" and "extortion." He argues that Michelle secretly left Idaho and "fled" to California, then refused to return unless he agreed not to divorce her. He maintains that Michelle forced him to sign the letters in which he consented to the moves by threatening to leave with the children while he was out of town.

Ed's arguments regarding Michelle's moves are unconvincing. The fact that Ed signed written consent statements giving Michelle permission to return to California with the couple's daughters undermines his claim that the moves were secret. On the one occasion that Michelle returned to California without obtaining Ed's written consent, he was aware of her plan to move. Moreover, the trial court implicitly found Ed's assertions that the letters were signed under duress to lack credibility. For these reasons, Ed's claim that Michelle repeatedly kidnapped and secreted the children is without merit.

Next, the trial court found that the interrelationship between the children and their parents favored awarding physical custody to Michelle. Although the evidence indicated that the children were close to both parents, digital telephone recordings submitted by the parties revealed that Michelle had a more constructive relationship with the children. The recordings also revealed that Michelle was "more reasonable and solution-oriented than Ed."

Finally, an award of physical custody to Michelle was supported by the court's analysis of the character of the parties involved. In analyzing this factor, the court acknowledged that both Ed and Michelle demonstrated character flaws throughout the proceedings. However, it concluded that, in light of Ed's behavior, Michelle's self-restraint was "fairly remarkable." Digital recordings of conversations and custody exchanges revealed that Ed made several inappropriate comments to the children and to others in their presence. Further, Ed's affair with Heather reflected poorly on his character. Not only did Ed begin a sexual relationship with Heather while still married to Michelle, he tried to rationalize to his eight-year-old daughter the relationship with Heather and the fact that he was having a baby out of wedlock. In the view of the court, this behavior indicated that Ed would not be a positive role model for his daughters. In all, the court concluded that instead of focusing on the needs of the children, Ed "focus[ed] . . . on Ed and what [he] deserve[d] from his children."

After reviewing the magistrate judge's decision, it is clear that the judge did not err in awarding Michelle sole physical custody of the children. Only after analyzing all of the relevant factors and fully explaining the basis for its decision did the court conclude that awarding Michelle sole physical custody was in the children's best interests. Consequently, it concluded that an award of joint physical custody would not be in the children's best interests and, therefore, that the presumption in favor of joint custody had been overcome.

Nevertheless, Ed argues that the court's decision was an abuse of discretion because it disregarded Idaho's joint custody presumption. . . .

Ed's argument that awarding sole physical custody to Michelle violates Idaho's joint custody presumption misconstrues the law. The joint custody presumption is just that a presumption. Unlike per se rules, presumptions may be overcome. Id. In this case, the magistrate concluded that the presumption had been overcome by evidence indicating that an award of joint physical custody was not in the children's best interests. Accordingly, Ed's argument that the court abused its discretion by disregarding the joint custody presumption is unconvincing.

Nor did the court abuse its discretion in allowing Michelle to move with the children to California. . . . [T]he court weighed the benefits the children would receive from moving against the benefits [of] having more

regular contact with Ed. After doing so, it concluded that the benefits of having more contact with Ed were "far outweighed by other considerations." The court reasoned that living in close proximity to Ed would potentially result in the children living in a perpetual high-conflict environment. Not only would the children be exposed to Ed's and Michelle's arguments, but also to Heather's high-conflict divorce. The only way to avoid exposing the children to numerous dysfunctional relationships would be to allow them to move with their mother to California. Additional benefits the children would receive if allowed to move included: increased emotional support, the opportunity to be around their extended family, increased stability, and "a psychologically healthier environment." Moreover, the children would not experience much disruption from the move since they had spent significant periods of time in California while Michelle and Ed were separated. The couple's oldest daughter had even been enrolled in school there. In light of these considerations, the court determined that it was in the children's best interests to relocate to California with their mother. . . .

Ed contests the trial court's visitation schedule on the grounds that it will be "impossible to maintain over the next 14 years." Ed also disputes the schedule because he is not reimbursed for all of his travel expenses, he does not have visitation on certain holidays and other "special days," and it requires him to leave his new wife and child eighteen times per year. . . .

Ed has failed to show that the trial court's visitation schedule was an abuse of discretion. In establishing the visitation schedule, the court considered the children's best interests, the parties' need for structure, transportation costs, and the convenience of the parties. Based on these considerations, the court awarded Ed extended visitation with the children in Idaho during their breaks from school, visitation in California once per month and during certain holiday weekends, and regular "virtual visitation" through the use of "telephone, Internet, web-cam, and other wireless or wired technologies." Although the court acknowledged that there may be easier and more cost efficient ways to accomplish visitation, it concluded that Michelle and Ed could not "be counted on to cooperate to that extent." Moreover, the court's visitation schedule was necessary to avoid "placing [the] children in limbo at or during exchanges." . . .

Nor did the court abuse its discretion by declining to award Ed visitation during every holiday or "special day." Ed was awarded visitation every other Christmas and Thanksgiving. He was also awarded visitation every spring break, Memorial Day weekend, and Fourth of July. In addition to in-person visitation, the schedule allows Ed to call the children once per week and have "virtual visitation" with them twice per week. Because the visitation schedule adequately ensures that the children's relationship

with Ed will be fostered, the fact that it did not award Ed visitation on certain holidays and "special days" does not render it an abuse of discretion.

Similarly, the visitation schedule was not an abuse of discretion simply because it requires Ed to spend approximately one weekend per month away from his new wife and son. In issuing the visitation schedule, the trial court could have reasonably concluded that it would be more convenient for Ed to travel to California over the weekend than it would be for the children to travel to Idaho. Additionally, in light of Ed's accusations that the trial court was only concerned with Michelle's best interest, it is paradoxical that he now asks this Court to consider the fairness of requiring him to spend weekends away from his new family in order to visit his daughters in California. Moreover, his complaint about being away from his family in Idaho contradicts his assertion that he should be awarded additional visitation with the children on certain "special days" in California. In sum, Ed has not shown that requiring him to travel to California in order to visit his daughters was an abuse of discretion. . . .

Ed argues that the magistrate's custody award violates his constitutionally protected parental rights. He maintains that, because he was awarded joint legal custody, he should be allowed to take his children out of the Sacramento area during his California visitation. Ed asserts that the restriction limiting his California visitation to the Sacramento area violates his constitutional right to the "care, custody, and control of [his] children" as pronounced by the United States Supreme Court in Troxel v. Granville, 530 U.S. 57, 66, 120 S. Ct. 2054, 147 L. Ed. 2d 49 (2000).

Ed's constitutional argument is unpersuasive. Initially, it mischar-acterizes the rights associated with an award of joint legal custody. Ed's award of joint legal custody gave him the right to share in decision-making regarding his children's health, education, and general welfare. . . . It did not give him the right to take the children wherever he pleases during visitation. Moreover, the award did not violate Ed's constitutional right to the custody, care, and control of his children. As we recently held, . . . a child custody decision that implicates a parent's constitutional rights will be upheld so long as the decision was necessary to ensure the child's best interest. . . . Here, the magistrate determined that moving to California with Michelle and having monthly visitation with Ed was in the children's best interests. A custody award implementing that arrangement was therefore necessary to serve the children's best interests. Further, a specific, rigid visitation arrangement was necessary in light of, among other things, the parties' demonstrated inability to work with flexibility. Because the custody award was necessary to ensure the children's best interests, it did not violate Ed's constitutional right to the custody, care, and control of his children.

QUESTIONS

1.Which factors related to best interest did the court rely on in making its custody decision?

2.Explain why the court declined to award joint custody, given the state's joint custody presumption.

3.Why did the court agree to allow Michelle to move out of state with the children?

4.How did the court structure the visitation award?

5.What role does "virtual visitation" play in the decision?