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 the 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 presumption in favor of any particular

arrangement for custody or visitation. (§ 3040, subd. (c).)

Custody arrangements under an existing order can only be changed upon a

showing of a substantial change in circumstances so affecting 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 constitutes an abuse of discretion. (Ibid.) The moving party

has the twofold burden of showing how circumstances have changed and why the

custody modification would be in the child's best interests. (In re Marriage of McLoren

(1988) 202 Cal.App.3d 108, 111–112, 114 [standard applies to requests to change legal

or physical custody].) We review a decision 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 custody order than is required to modify a temporary custody

order. (Montenegro, supra, 26 Cal.4th at pp. 256–257.)

3 In support of his request to change physical 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 claimed that the children needed to be removed

from Suzanne because she mentally abused and physically harmed them. Counsel for the

children filed a declaration stating that the children expressed no fear as to either parent

and he observed no discomfort between the 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 they 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 noted 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 reversing the current parenting plan so that the

children would reside with Mark during the school week.

This evidence supported the family court's order as it revealed that the

circumstances have changed and that the custody modification was in the best interests of

the children. Suzanne complains that Mark's sole basis for seeking a change in physical

custody was her alleged abuse of the children, but that the evidence did not support

Mark's allegations. Significantly, the family court made no finding on Mark's abuse

allegations. Rather, after considering all the evidence, the court used a best interests

analysis to conclude "it would be detrimental to both children not to make the

4 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 increased, not subsided, and both boys have

clearly been exposed to same." Thus, it appears this case, as with tragically too many

others, involves "parents [who] pursue their animosity toward each other 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 differences for the benefit of the children.

DISPOSITION

The order is affirmed.

MCINTYRE, Acting P. J.

WE CONCUR:

O'ROURKE, J.

AARON, J.

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