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Standard of Review-Custody
(Marr. of LaMusga.)

Standard of Review-Custody-Abuse of Discretion-
(Marr. of  LaMusga.)

The trial court’s ruling on this custody issue is reviewed for abuse of discretion.  (In re Marriage of Burgess, supra, 13 Cal.4th at p. 32)  “The courts have never ascribed to judicial discretion a potential without restraint.”  (People v. Russel (1968) 69 Cal.2d 187, 194.)  Rather, “all exercises of legal discretion must be grounded in reasoned judgment and guided by legal principles and policies appropriate to the particular matter at issue.”  (Id. at p. 195; accord, People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 977.)  Thus, a trial court abuses its discretion whenever it applies the wrong legal standard to the issue at hand.  (Linder v. Thrifty Oil Co. (2000) 23 Cal.4th 429, 435-436 [a discretionary order based upon improper criteria or incorrect assumptions must be reversed]; In re Carmaleta B. (1978) 21 Cal.3d 482, 496 [“discretion can only be truly exercised if there is no misconception by the trial court as to the legal basis for its action”].)  It follows that a reviewing court must examine the trial court’s stated reasons for an exercise of discretion to determine whether those reasons reflect a correct understanding of the relevant legal standards and principles.  (See, e.g., Linder v. Thrifty Oil Co., supra, 23 Cal.4th 429.)

Concluding that the trial court did not abuse its discretion, the majority says that “nothing in the record before us indicates that the superior court failed to consider the children’s ‘interest in stable custodial and emotional ties’ with their mother.”  (Maj. opn., ante, at p. 22.)  But it is equally true that nothing in the record indicates that the court did consider this interest.  The majority goes on to state, “In future cases, courts would do well to state on the record that they have considered this interest in stability, but the lack of such statement does not constitute error and does not indicate that the court failed to properly discharge its duties.”  (Maj. opn., ante, at p. 23.)  I disagree.  In the absence of such a statement, or some other evidence in the record showing that the trial court affirmatively considered and weighed the required factors, I cannot conclude that the trial court properly exercised its discretion. Marr. of LaMusga 4/29/04 S107355-See Dissent Part of Opinion-Custody

Marr. of LaMusga 4/29/04 S107355-Custody

Apr 29 2004

S107355 [PDF] [DOC]

Marr. of LaMusga 4/29/04 SC

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