I agree with my colleagues on the sanctions issue, but cannot agree with that portion of the majority opinion which rejects Niko’s challenge to the move-away order in this case. I must, therefore, respectfully dissent.
There are few concepts in the law as vital—as sacrosanct—as the finality of judgments. It is not hyperbole to say that assuring litigants of the finality of judgments is a sine qua non of an effective system of civil justice. At a time when both the Statue of Liberty and Coca-Cola were new, and neither basketball nor motion pictures had yet made an appearance, California courts were holding that “there must be an end of litigation; and when parties have once submitted a matter ... it must be regarded as final and conclusive, unless it can be shown that [something] has prevented a fair submission of the controversy.” (Pico v. Cohn (1891) 91 Cal. 129, 133 [25 P. 970].) We have considered it so important that we have upheld it even when the judgment has been procured by perjured testimony, false evidence, or intrinsic fraud. “ ‘[P]ublic policy requires that only in exceptional circumstances should the consequences of res judicata be denied to a valid judgment.’ [Citation.]” (Kulchar v. Kulchar (1969) 1 Cal.3d 467, 470 [82 Cal.Rptr. 489, 462 P.2d 17].) “Furthermore, inasmuch as losing parties have strong inducement to contrive attractive reasons why a controversy should be reopened, the rules concerning relief from a judgment are properly cast in narrow terms.” (Rest.2d Judgments, § 70, com. a, p. 180.)
Family law litigants have as much right to rely on this finality as anyone else. Indeed, given the paramount interest of the law in promoting stability for the sake of children involved in such judgments, this may be the area of the law that most cries out for zealous protection of finality. (See Lassiter v. Department of Social Services (1981) 452 U.S. 18, 32, fn. 20 [68 L.Ed.2d 640, 101 S.Ct. 2153]; Lehman v. Lycoming County Children’s Services (1982) 458 U.S. 502, 513 [73 L.Ed.2d 928, 102 S.Ct. 3231].) “The State’s interest in finality is unusually strong in child-custody disputes.” (Lehman, at p. 513.) “ ‘It is undisputed that children require secure, stable, long-term, continuous relationships with their parents or [foster parents]. There is little that can be as detrimental to a child’s sound development as uncertainty over whether he is to remain in his current “home,” . . . especially when such uncertainty is *371prolonged.’ [Citation.]” (In re Sade C. (1996) 13 Cal.4th 952, 988 [55 Cal.Rptr.2d 771, 920 P.2d 716].) “To permit a parent to raise issues which go to the validity of a final earlier appealable order would directly undermine these dominant concerns of finality and reasonable expedition.” (In re Meranda P. (1997) 56 Cal.App.4th 1143, 1152 [65 Cal.Rptr.2d 913].) So once a family law court determines what is in the best interests of the children, that conclusion should be adamantine unless and until there is a significant change.
And, in fact, that is the law. A host of cases have developed what we call the “changed circumstance” rule, which protects all involved against the vagaries of inconsistent judgments by seriatim judges. As explained in Burchard v. Garay (1986) 42 Cal.3d 531, 535 [229 Cal.Rptr. 800, 724 P.2d 486], “It provides, in essence, that once it has been established that a particular custodial arrangement is in the best interests of the child, the court need not reexamine that question. Instead, it should preserve the established mode of custody unless some significant change in circumstances indicates that a different arrangement would be in the child’s best interest.”
But my colleagues, perhaps misled by a footnote, have today retreated significantly from defense of that position. They have decided that footnote 12 of In re Marriage of Burgess (1996) 13 Cal.4th 25 [51 Cal.Rptr.2d 444, 913 P.2d 473], was the Supreme Court’s announcement that it had surrendered the concept of finality of judgments in the area of family law. They interpret it to mean the Supreme Court is prepared to allow modifications of custody whenever a parent changes his or her mind about what he or she wants, and can convince a new judge to weigh the interests of the child differently than the last one did. I find this hard to reconcile with the rest of Burgess, which seems rather clearly to reinforce the importance of finality in custody judgments. But they have held that when a parent with joint physical custody changes her mind about where she would prefer to live, finality of judgments no longer obtains; the family law court must start over and reassess the best interests of the child from scratch—and it must do so without regard to the earlier court’s determination in that regard or the agreement bargained for by the other parent that the child would be raised in California. They do so by concluding that a thousand-mile move is not a change in physical custody, but merely some kind of “modification of the coparenting arrangements.” (Maj. opn., ante, at pp. 363, 365.) In essence, they’ve said something akin to: “Your pet is still a golden retriever, only now instead of orange fur, big floppy ears and a long tail, it has silver scales, fins and gills and isn’t quite as huggable.”
I am not yet willing to throw in the towel on something as important as finality of judgments, and would not allow what I believe is a reassessment of *372a final custody judgment in this case, absent a showing of significant changed circumstances. If the Supreme Court meant footnote 12 to effect a revolution in the area of child custody modification, they were too subtle for me; if they meant it only to clarify their holding in Burgess, they were too subtle for my colleagues. Either way, we could use a little help in this area.
I am further unconvinced this parent received a fair hearing below. The court refused to hear from the very mature 12-year-old child whose custody—and state of residence—were at issue because of a personal “policy” against listening to the children. It did so despite knowing that the father’s only expert had been intimidated from testifying, an action my colleagues ratify with the explanation that, “[tjhere is no evidence the court suppressed his testimony or otherwise precluded Niko from forcing Smith to testify by use of a proper subpoena.” (Maj. opn., ante, at p. 366, italics added.) To my mind, a trial court should at least inquire when there is evidence an attorney admittedly intimidated a witness who intended to testify for an opposing party; it is not enough for the court to just throw up its hands and say, “Not my problem.” My colleagues are willing to accept that; I am not.
Here—in précis form for those not enamored of long, detail-laden dissents—is what I say at some length, post. A court should not change a final custody judgment by reweighing the best interests of a child until it has been proven that circumstances have changed. Moving a child to Colorado with one parent after a final custody judgment said he should be raised in California by both parents is a change in that judgment. “I have changed my mind about what I want for myself and my child,” is not a change of circumstances. The trial court was therefore wrong, and it will be hugely counterproductive to countenance such rulings because they will undermine the stability so necessary to the system and the families it serves.
I
As the majority seems to acknowledge, Niko and Foreman have a history together which is byzantine in its complexity. Although never married, their romantic relationship both predated Niko’s marriage to his current wife, Elizabeth, and has continued off and on throughout much of that marriage. Niko initially filed his petition to establish paternity of Taylor in September of 1996, but the dispute apparently lay dormant for some period of time; Foreman did not answer the petition until 1998, at which time she requested “primary” physical custody of Taylor, as well as an award of child support.
Niko requested the appointment of a custody evaluator, offering to pay the entire cost. In support of that request, Niko stated under penalty of perjury that Foreman had threatened to move away to Colorado with Taylor unless he *373divorced his wife Elizabeth and married her. In April or May of 1998, the parties stipulated to the appointment of custody evaluator Stephen Adam, Ph.D. However, it appears they also reconciled for a brief period around that time, and the evaluation was put off. After Niko and Foreman again broke up, the court entered an order directing Adam to proceed with his evaluation.
In December of 1998, Niko sought the appointment of a second custody evaluator, on the ground that Foreman had been threatening, over a period of years, to “relocate to Colorado with [Taylor] if the three of us were not going to be a family.” Niko stated that Adam, the initial custody evaluator, had indicated he would not address that issue in his evaluation. In response to the request, Foreman declared, under penalty of perjury, “I have no intention, now or in the future, of relocating to Colorado.” She explained “this is where my son is attending school and doing very well. I have no intention of disrupting his life and move [sic] him out of state.” Over Foreman’s objection, the court granted the motion, and appointed the second custody evaluator at Niko’s expense.
Adam produced his written report in February of 1999.1 The report noted that during the course of his initial evaluation, the parties appeared to be on the verge of stipulating to a custody arrangement which apparently would have given Foreman the majority of custodial time. But then Niko’s counsel reported to Adam that Foreman had threatened to move to Colorado. In light of that possibility, Niko would not stipulate to any arrangement giving him less than 50 percent custody of Taylor. Adam also reported, however, that Foreman had “denied that she ever had any intention of moving, or that she had any plans of relocating.” She had told Adam “there was no basis for Mr. Niko’s statement regarding the potential for her to relocate to the state of Colorado.” Adam reported that he consequently did not consider the issue “a significant matter,” and acknowledged he had informed the parties he would not address it in his report.
Adam’s report did include an assessment of Foreman, Niko and Niko’s wife, Elizabeth. It reflected that all parties were attempting to grapple, as best *374they could, with a fairly messy situation. All seemed to agree Niko has been tom between “his commitment to his son vs. his marriage vow.” Adam concluded Foreman and Niko “have been ineffective in their efforts to define the terms of their personal relationship.” The inconsistency in their personal interactions has been difficult for Taylor. Adam noted that both Foreman and Niko were good parents, although with markedly different parenting styles. He felt that a parenting class might help both parents to formulate a more consistent parenting style. Adam recommended that Taylor continue under the same custody arrangement already in place, which he defined as joint legal custody, but with primary physical custody to Foreman. He noted that Taylor had been “flourishing,” and Foreman had never frustrated Niko’s access to him. Adam saw no reason to alter the status quo.
The second evaluator, Donald Smith, Ph.D., produced a written report in May of 1999. Its purpose was to rebut the report offered by Adam, and to evaluate Foreman’s potential “move away” to Colorado. However, Smith also noted that Foreman also denied any intention of moving to him, stating, “No, I have no plans to move to Colorado.” He thus stated, “it appears Mr. Niko’s concern regarding a ‘move away’ issue with Ms. Foreman may be something of a misunderstanding. Ms. Foreman stated she has never planned to move to Colorado . . . never.”
I relate all of this because it was against this background, including substantial disputes about whether Foreman would move to Colorado with the parties’ son, Taylor, that the parties stipulated to their custody judgment. They agreed, and the court ordered, that it would be in Taylor’s best interest that the parties have equal physical custody, and coparent him in California. So this was an agreement—and a judgment—borne of heated and protracted negotiation. It took years for the parties to arrive at this point. There can be little doubt Niko thought—and I think quite reasonably—that the stipulated custody judgment foreclosed Foreman’s simply changing her mind and deciding to go live in Colorado without having to show a change in circumstances. It certainly should have.
The parties’ stipulated judgment has the same force as a judgment entered after a contested trial (Montenegro v. Diaz (2001) 26 Cal.4th 249, 257-258 [109 Cal.Rptr.2d 575, 27 P.3d 289]), and consequently cannot be altered absent a change of circumstances. “The changed-circumstance rule . . . provides, in essence, that once it has been established that a particular custodial arrangement is in the best interests of the child, the court need not reexamine that question. Instead, it should preserve the established mode of custody unless some significant change in circumstances indicates that a different arrangement would be in the child’s best interest. The rule thus fosters the dual goals of judicial economy and protecting stable custody arrangements.” (Burchard v. Garay, supra, 42 Cal.3d at p. 535, italics added.)
*375The Supreme Court had earlier applied the “changed circumstances” rule in In re Marriage of Carney (1979) 24 Cal.3d 725 [157 Cal.Rptr. 383, 598 P.2d 36], explaining: “[the] change must be substantial: a child will not be removed from the prior custody of one parent and given to the other ‘unless the material facts and circumstances occurring subsequently are of a kind to render it essential or expedient for the welfare of the child that there be a change.’ [Citation.] 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.’ [Citation.] [ft] Moreover, although a request for a change of custody is also addressed in the first instance to the sound discretion of the trial judge, he must exercise that discretion in light of the important policy considerations just mentioned. For this reason appellate courts have been less reluctant to find an abuse of discretion when custody is changed than when it is originally awarded, and reversals of such orders have not been uncommon.” (Id. at pp. 730-731, fn. omitted.)
The primacy of the policy favoring stability was reiterated in In re Marriage of Burgess, supra, 13 Cal.4th at pages 32-33, “As we have repeatedly emphasized, the paramount need for continuity and stability in custody arrangements—and the harm that may result from disruption of established patterns of care and emotional bonds with the primary caretaker—weigh heavily in favor of maintaining ongoing custody arrangements.” (Italics added.)
In Burgess, the court held that when a parent has been awarded sole physical custody, he or she has a presumptive right to move with the children, and the burden is on the noncustodial parent to demonstrate “changed circumstances”—not merely consisting of the fact of the move itself—which demonstrate that a change in custody is necessary to prevent detriment to the children. “[A] parent seeking to relocate does not bear a burden of establishing that the move is ‘necessary’ as a condition of custody. Similarly, after a judicial custody order is in place, a custodial parent seeking to relocate bears no burden of establishing that it is ‘necessary’ to do so. Instead, he or she ‘has the right to change the residence of the child, subject to the power of the court to restrain a removal that would prejudice the rights or welfare of the child.’ (Fam. Code, § 7501.)” (In re Marriage of Burgess, supra, 13 Cal.4th at pp. 28-29.)
As the Supreme Court also explained in Burgess, while a parent with sole custody has the presumptive right to change the residence of the child subject only to the power of the court to restrain a removal that would prejudice the child’s interests, that same rule may not be applied to a joint custody situation. The court suggested that in such a case, “the custody order ‘may be *376modified or terminated upon the petition of one or both parents or on the court’s own motion if it is shown that the best interest of the child requires modification or termination of the order.' (Fam. Code, § 3087.) The trial court must determine de novo what arrangement for primary custody is in the best interest of the minor children.” (In re Marriage of Burgess, supra, 13 Cal.4th at p. 40, fn. 12, italics added.)
As this passage suggests, the order allowing a parent who merely shares custody to move away with the child, thus disrupting the existing custody arrangement, would require more of a showing than a change of location for a parent with sole custody. Thus, in the shared custody situation, the court should consider making a new order only “if it is shown that the best interest of the child requires modification ... of the [prior] order.” (In re Marriage of Burgess, supra, 13 Cal.4th at p. 40, fn. 12, italics added.) And since the best interest of the child has already been determined once, a change in that determination, like a change in any other final decision, would require a showing that some significant circumstance has changed, thus requiring a modification. Only if that hurdle is crossed, do I think we get to a de novo determination of what primary custody arrangement would then be in the child’s best interest.2
*377In this case, by contrast to the petitioning mother in Burgess, Foreman did not enjoy sole custody of Taylor. The parties’ judgment provided for joint custody, both legal and physical. Consequently, Foreman was not entitled to any presumption under Family Code section 7501, favoring her right to move with Taylor. Instead, as it was Foreman who was seeking to fundamentally alter the existing custody judgment, it was her burden to demonstrate sufficient circumstances to warrant the change she sought.
Had Foreman shown significant changed circumstances affecting either her own living or working situation, or suggesting that Taylor’s current custody situation was no longer appropriate, then a de novo test would have been applied to determine what would be in the best interest of the child under the circumstances. Rather than imposing this burden on her, however, the trial court expressly eschewed any such requirement, acknowledged Foreman had not even argued such a change, yet somehow concluded she was simply entitled to a de novo review of the custody issue, because she had decided she would rather live in Colorado. In my view, that was error.
My colleagues choose to sidestep this error by simply concluding that the trial court did not technically alter the joint custody judgment when it gave Foreman permission to move a thousand miles away with Taylor. Citing Montenegro v. Diaz, supra, 26 Cal.4th at page 255, the majority conclude the court here “implicitly” (maj. opn., ante, at p. 365) maintained joint physical custody, while altering only the “coparenting arrangement.” However, the decision in Montenegro, allowing a modification of prior child-custody orders without any change in circumstances, has nothing to do with some distinction between the concepts of “custody” and “coparenting.” Montenegro was expressly based upon a determination that the prior stipulated custody orders were not intended to be final judgments: “[W]e hold that a stipulated custody order is a final judicial custody determination for purposes of the changed circumstance rule only if there is a clear, affirmative indication the parties intended such a result. . . . [f] [W]e conclude that neither the June 24, 1997 order nor the September 30, 1996 order constitutes a final judicial custody determination. Although these orders included detailed visitation schedules and did not provide for further hearings, they did not clearly state that they were final judgments as to custody.” (26 Cal.4th at pp. 258-259, italics added.)
In the instant case, by contrast, the final custody judgment did clearly identify itself as such. It not only was a final judgment; it said it was a final judgment. And it was a final judgment arrived at through hugely difficult and doubtless hugely costly—both emotionally and fiscally—negotiations. To discard such a judgment without requiring changed circumstances is not only to blink at the code, but to turn the court that supervised those negotiations into Sisyphus.
*378There are cases establishing that when a party seeks to alter visitation schedules, but not custody, no “changed circumstances” need be shown. (See Enrique M. v. Angelina V. (2004) 121 Cal.App.4th 1371 [18 Cal.Rptr.3d 306]; In re Marriage of Birnbaum (1989) 211 Cal.App.3d 1508 [260 Cal.Rptr. 210].) But this is not a situation in which the court was faced with deciding whether the children should sleep at Mom’s house rather than Dad’s on Tuesdays, or whether Dad’s time should be bumped up from alternating weekends to every Saturday so as to accommodate the child’s soccer schedule. It is one in which the child’s residence was to be moved not only outside the State of California, but a thousand miles away. It is one in which the custody situation was fundamentally changed from one in which both parents had the “frequent, and continuing contact,” defined by the Family Code as the hallmark of “joint custody,”3 to something that could not—with a decent respect for language—be described as giving Niko either of those things. Unless we count phone calls, standing alone, as sufficient contact to qualify as “custody,” or unless Niko owns a private jet, there is simply no way he can maintain “frequent and continuing contact” with a child who lives a thousand miles away.4
In my view, the court clearly did modify the prior joint custody judgment. Its current order could be fairly described as either (1) implicitly giving sole physical custody to Foreman, with substantial visitation time to Niko during Taylor’s school vacations; or (2) implicitly giving the parties alternating periods of sole custody—Foreman during the school year and Niko during vacations. At no time, however, is that physical custody “joint.”
I would conclude a parent sharing joint custody must make an initial showing of changed circumstances affecting the custody arrangement, before the right to a de novo hearing is triggered. That showing could consist of external circumstances, such as changed financial circumstances, a new and different job opportunity, remarriage, etc., which have affected the parent’s choice of residence. Or it might be satisfied by the evidence showing that the parent unequivocally intends to move, without regard to the outcome of the hearing. As I have already noted, the fact of a distant relocation, in and of itself, will likely render a joint custody arrangement impracticable, and would *379consequently obligate the court to reassess. The party seeking the modification might also satisfy the burden by evidence demonstrating that the current arrangement is, for some other reason, detrimental to the child. But the mere desire of one parent to sever a successful joint custody arrangement and move away with the child, without any substantial change in circumstances, and without any indication the parent actually intends to move in the absence of court approval, is not sufficient. And that is all the court required in this case.
Moreover, in my view, the court compounded its error by apparently placing the burden on Niko to actually prove the modification sought by Foreman would be detrimental to Taylor. In its statement of decision, the court expressly found that if Niko’s case was intended to demonstrate “that it’s not in this child’s best interest to move, then he has not met his burden.” (Italics added.) At another point, the court also dismissed Niko’s contentions regarding the potential detriment that Taylor’s relocation might have on his current family relationships with a statement suggesting it had determined he failed to carry his burden of proof as to that issue: “Taylor can continue to maintain and build his bond with his dad, step mom and new sister during his long visits. Will it be different? Yes. Will it be harmful? Insufficient evidence. Will it be detrimental to his best interests? Insufficient evidence.”
I cannot emphasize too strongly that this was not a case like Burgess, in which a mother, who already had sole custody, possessed the presumptive right to move. In this case (as the trial court actually acknowledged), Foreman was entitled to no presumption. As the party seeking the modification, the burden of proof was entirely hers. The trial court’s rather cavalier dismissal of the questions of harm and detriment to Taylor with the unexplained response, “[ijnsufficient evidence” makes it painfully clear the court placed the burden of proof on the wrong party.
And this is also a case in which the burden may have been critical to the outcome. To be sure, Foreman’s initial pleading stated sound, even compelling justifications for her decision to relocate with Taylor to Colorado. She asserted she could no longer afford to live in Southern California, and she expressed concern that Niko was subjecting Taylor to abuse. She also suggested that Taylor had been missing his extended family since they moved to Colorado six years earlier, and wished to live closer to them. Had Foreman established either of the first two justifications at the hearing—and had the trial court applied the correct standard and determined she was acting in good faith—she might have been entitled to a change in custody entitling her to move away with Taylor. But Foreman expressly abandoned the first two justifications at the commencement of the hearing, leaving only the desire to live closer to those family members who resided in Colorado.
*380And as to that desire to be closer to family, the court’s custody evaluator viewed it as primarily Foreman’s, rather than Taylor’s. Foreman herself openly acknowledged that her desire to move to Colorado was not new. Notwithstanding her numerous denials throughout the course of this case, she conceded at the hearing that she had been seriously considering it for approximately six years, since long before the custody judgment was entered. So that desire did not constitute a changed circumstance, much less a significant one. Indeed the scant evidence in this case brings to mind Justice Baxter’s admonition in Burgess: “Even if the relocation is not a conscious effort to frustrate parent-child contact, casual motives for moving may indicate the relocating parent’s lack of commitment to the child’s interest in a continuing bond with both parents. The court may and should take that into account when deciding whether a consequent change in the award is justified.” (In re Marriage of Burgess, supra, 13 Cal.4th at p. 44 (con. & dis. opn. of Baxter, J.).)
Finally, I would note there was no evidence Foreman had any intention of moving if the court declined to grant her a modification; to the contrary, the only evidence on that issue was that she had affirmatively stated she would not move unless the court granted permission for Taylor to relocate as well. Under these circumstances, Foreman failed to show that a modification of the existing judgment was prompted by any significant change in circumstances since the judgment had been entered. Nor did she demonstrate that it would be in Taylor’s best interests for him to relocate with her alone to Colorado, rather than remain in Southern California and retain day-to-day contact with both parents. To the contrary—the undisputed evidence was that he was doing spectacularly well under the arrangement already in place, and there was no showing that Colorado would be an actual improvement.
Consequently, it seems to me that what Foreman sought to do in this case was turn the “changed circumstances” rule on its ear: Without even attempting to establish that the current arrangement was either no longer practicable or no longer beneficial, she obtained a hearing, in which the court determined, de novo, which of two fairly radical modifications of the custody judgment would be better; either Taylor would live solely with her in Colorado, or solely with Niko in Southern California. Armed with a ruling in her favor on that issue, Foreman was then free to effect the changed circumstance she preferred. In light of the strong policy favoring the stability of custody arrangements, I cannot endorse that approach.
II
Having concluded the court applied the wrong standard in this case, I also reject Foreman’s (and the court’s) contention that Niko somehow waived *381application of the correct standard by agreeing to the one the court relied upon. While the record demonstrates the court did solicit such an agreement, and both Foreman and Taylor’s appointed counsel gave it, Niko did not. Instead, he argued the significance of maintaining stability in a custody arrangement, and specifically cited the “Carney rule”—clearly referring to the “changed circumstances” rule set forth in In re Marriage of Carney, supra, 24 Cal.3d 725.
Although the colloquy between the court and Niko’s counsel on the point was not as clear as one might hope, that can be explained in part by the fact that at the time of the discussion, Foreman was expected to offer evidence in support of what she had initially claimed were her justifications for the move away. Had she done so, and had the court then concluded that her proof was sufficient to constitute changed circumstances justifying a modification, it would have been appropriate for the court to consider the terms of that modification on a de novo basis. But that never happened. Moreover, the court cut Niko’s counsel short when he tried to explain his position. Any lack of clarity cannot, as a consequence, be blamed on him.
But, as already noted, Foreman actually abandoned her claimed justifications in fairly short order. Moreover, any doubts about Niko’s intentions regarding the proper standard to be applied were cleared up when he filed his posthearing brief in support of requested additional findings. That brief, which was filed before the court had made any express findings about the standard, argued forcefully, and at some length, for application of the “changed circumstances rule.” The court’s subsequent minute order, reflecting its conclusion that Niko had agreed to a different standard, was simply incorrect.
Ill
Having concluded that the court erred in excusing Foreman from any showing of changed circumstances, I would reverse the order allowing her to move with Taylor to Colorado on that basis alone. However, in my view the court committed other significant errors as well. First, the court’s statement of decision reveals an express refusal to consider Niko’s evidence suggesting Foreman had an established pattern of using Taylor—and specifically of threatening to take him with her to live in Colorado—as a weapon to manipulate Niko.
The court characterized this evidence as “irrelevant” to the issue of Taylor’s best interests “now,” and expressly refused to make any finding as to whether such past conduct had occurred. It also suggested that Niko’s concerns regarding the motivations behind Foreman’s decision to move were a *382complete mystery: “For no reasons this court can discern, he is fearful that if [Foreman] leaves, she will keep Taylor from him. If history is the greatest predictor of the future, then the facts do not bear this out.” The court even went so far as to lament that it was “not sure what case it is that dad and his attorney were presenting ...”
What case Niko was presenting is very clear to me. If believed, his evidence would clearly be sufficient to support the conclusion that Foreman’s decision to take Taylor away to Colorado was part of an established pattern of bad faith conduct; indeed, it was arguably the culmination of a long-term campaign of threats to Niko’s access to Taylor, waged as a means of manipulating him. In my view, the record is fairly clear that Niko had been, for a long time, tom between his desire to be a full-time father to Taylor, and his commitment to his marriage, and that Foreman kept herself available in the event he might choose Taylor. Thus, it could be concluded that Taylor was Foreman’s chief weapon in what appeared to be a contest for Niko’s affections. Indeed, Foreman herself admitted that on one occasion, in the heat of an argument, she had taunted Elizabeth with the fact she had been unable to have any children, and suggested that Niko could never be happy with her, as he desired to have more children.
When Elizabeth became pregnant with her own child then, it would appear the situation changed markedly. Foreman no longer enjoyed the advantage of being the only woman who could give Niko a child, and she arguably recognized that her chance of ultimately winning Niko was gone. So she decided to leave, taking Taylor with her. This scenario is plausible and even supported by other evidence. In fact, Bussey, the custody evaluator whose opinions the court found so credible, characterized Elizabeth’s pregnancy, and the ultimate demise of Foreman’s own relationship with Niko, as a “central factor” in Foreman’s decision to relocate.5 (Italics added.)
And of course, Niko’s theory casts in a new light the evidence the trial court found so persuasive in concluding that the move would not likely interfere with the relationship between Niko and Taylor. As the court explained, the fact that Foreman had always been supportive of the relationship suggested there was no reason to be concerned that she would not continue to do so in Colorado. But if the court had considered the evidence proffered by Niko, it might have been persuaded that Foreman’s past support of the father/son relationship was merely an element of her continuing plan to convince Niko to return to her and Taylor, and be a family. Once she realized *383that was not to be, it is perfectly plausible that she might consequently have lost her enthusiasm for promoting that father/son bond.
It would also be reasonable to infer that Foreman’s desire to take Taylor away to Colorado reflected a new resolve—an intent to establish a separation between herself and Taylor, as one family, and Niko and Elizabeth and their new daughter, as another. That goal, of creating a separation, would certainly amount to “frustrating” Niko’s ability to maintain his relationship with Taylor—and would have precluded a modification order allowing Foreman to carry out her relocation plan.
In this regard, the Supreme Court’s recent decision in In re Marriage of LaMusga (2004) 32 Cal.4th 1072 [12 Cal.Rptr.3d 356, 88 P.3d 81], is instructive. In that case, even though the mother had physical custody of the children, and had a good faith reason for her decision to move, the court nonetheless denied her petition to move away with the children. The court explained that “[a]bsolute concepts of good faith versus bad faith often are difficult to apply because human beings may act for a complex variety of sometimes conflicting motives.” Thus, “[e]ven if the custodial parent has legitimate reasons for the proposed change in the child’s residence and is not acting simply to frustrate the noncustodial parent’s contact with the child, the court still may consider whether one reason for the move is to lessen the child’s contact with the noncustodial parent and whether that indicates, when considered in light of all the relevant factors, that a change in custody would be in the child’s best interests.” (Id. at p. 1100, fn. omitted, italics added.)
In short, a parent’s decision to relocate with children, far away from the other parent, is generally the product of complex motivations. The labyrinthine circumstances of this case can only exacerbate that complexity. The fact that Foreman has some legitimate basis for selecting Colorado as a new place to live in no way forecloses the possibility that she is also intent on separating herself and Taylor from Niko. And where her decision coincides with a significant change in the relationship between herself and Niko, as appears may be the case, Foreman’s past history of facilitating visitation may not be a strong predictor of future conduct.
I do not mean to suggest that I necessarily believe Niko’s theory; its ultimate credibility is a determination that should have been made by the trial court. I only mean to suggest that the court was obligated to grapple with this messy evidence and address these complex issues; it could not simply reject Niko’s contention that Foreman’s motivations for moving were “impure.” By setting out Niko’s theory at some length, I do not mean to endorse it, but merely to demonstrate how highly relevant some of the excluded evidence could be.
*384IV
I also conclude Niko is correct in his assertion that the court abused its discretion in refusing to either hear from Taylor directly about his preferences and the reasons therefor, or providing a sufficient “alternative means of obtaining information regarding the child’s preferences.” (Fam. Code, § 3042, subd. (b).)
Family Code section 3042, subdivision (a) expressly requires that, “If a child is of. sufficient age and capacity to reason so as to form an intelligent preference as to custody, the court shall consider and give due weight to the wishes of the child in making an order granting or modifying custody.” The court clearly did in this case, and in fact emphasized the significance of Taylor’s wishes in reaching its decision. However, what the court refused to do was admit any direct evidence of those wishes.
To be sure, everyone had an opinion about what Taylor wanted, and what reasons might have prompted his preference, but those opinions varied widely. Moreover, Niko proffered evidence that his own custody evaluator, Smith, had reached a significantly different conclusion than had Bussey. He also proffered evidence that Smith had been dissuaded from testifying because of threats made by Foreman and by Taylor’s appointed counsel.6 He asked the court for some relief from the prejudice he suffered as a result of that consequence.
Unfortunately, the court appeared to consider the evidence that Smith had been, in effect, “run off” to be irrelevant. I strongly disagree. Even if I assume that Foreman had an absolute right to file a complaint against Smith with the Board of Psychology (and she may well have), or that Taylor’s counsel, LaFlamme, had acted properly in taking Smith aside and suggesting that if he testified a complaint would be pursued (a far more doubtful proposition7), I could not conclude that the consequences of those actions are immaterial. Even justified conduct has consequences, and the court could not simply discount them on the basis that they were not the product of wrongdoing.
*385It is undisputed that the pressure applied by Foreman and LaFlamme actually caused Smith to withdraw from the case. Niko himself did nothing to cause it. It is also undisputed that had Smith remained on the case, the court would have heard his testimony regarding Taylor’s preferences. Consequently, as a direct result of Foreman’s and LaFlamme’s conduct, and through no fault of his own, Niko lost the ability to offer evidence from the only witness who could counter Bussey on the subject of Taylor’s preferences. In a case in which the facts were in such dispute, that loss was significant.
Moreover, it appears the court’s refusal to hear from Taylor directly was not the product of discretion, but of personal policy. As the court explained, it harbored a general conviction that it was not in a child’s best interest to participate directly in a custody dispute. It indicated it had never actually allowed a child to testify, and had interviewed a child in chambers only twice. It apparently considered the appointment of a child custody evaluator, along with counsel for the child, as always constituting sufficient “alternative means” of ascertaining the child’s preferences.
But the law supports no such blanket ban on testimony by children in custody cases. To the contrary, Family Code section 3042, subdivision (b), merely provides that “the court shall control the examination of the child witness so as to protect the best interests of the child.” (Italics added.) It further provides that “[t]he court may preclude the calling of the child as a witness where the best interests of the child so dictate and may provide alternative means of obtaining information regarding the child’s preferences.” (Italics added.) These two passages allow no room for a blanket policy of exclusion of the testimony of all children.
And in this case, I perceive no particular basis for the refusal to hear from Taylor. There seems a general consensus that Taylor, aged 12, was remarkably intelligent and mature. He had already been questioned about his feelings regarding the move by at least two custody evaluators, as well as by Foreman. It is unclear why a direct inquiry from the court, especially if conducted in a sensitive manner, and outside the presence of his parents, would have been particularly hard on him. Unless I presume that the best interests of every child dictate a preclusion of his testimony, as the trial court seemed to, there is no readily apparent reason to exclude Taylor from the decision. At any rate, a decision to exclude him should have been based on factors pertaining to him and his case, not an abstract policy against hearing, from children.
*386And finally neither of the “alternative means” employed by the court here—the appointment of a custody evaluator and of counsel—resulted in any admissible evidence. Counsel, of course, did not testify at all. He merely advocated. And the custody evaluator, while certainly useful for some purposes, could not qualify as an “expert” on the subject of “what Taylor wants.” That is an ordinary factual matter. (See Evid. Code, § 720.) The only person who could offer admissible evidence on that subject was Taylor.
It is a matter of judicial discretion to determine whether or not a child such as Taylor should testify. But that decision must be based upon the court’s actual exercise of discretion—based upon the particular child and the circumstances of the case—unfortunately in this case it was not.
Appellant’s petition for review by the Supreme Court was denied February 17, 2007, S148578.
The extent to which the court considered Adam’s report in connection with its ultimate order modifying custody is unclear. The report was part of the court’s file (and is included in our record on appeal). Dr. Bussey, the court-appointed custody evaluator who testified at the hearing on Forman’s move-away hearing, discussed Adam’s report in both his own written report and in his testimony. Moreover, the court was formally requested to take judicial notice of its entire file at the conclusion of the custody modification hearing.
In any event, as mentioned below, my discussion of the report is solely for background purposes. It provides the only significant context for the determination of whether the parties’ stipulated judgment was intended to resolve the issue of Foreman’s alleged desire (which she denied) to move with Taylor to Colorado. I believe it was, and in the absence of some change in circumstances, such a resolution should have stuck.
I recognize that there are at least two decisions that seem, at first glance, to interpret footnote 12 in Burgess as though a de novo determination were automatic when a parent with joint custody states an intention to move. They seem to say that when parents enjoy a true “joint custody” relationship with their children, and one parent decides to relocate a significant distance away, the mere fact of that relocation constitutes a “changed circumstance” sufficient to trigger a de novo review. (Brody v. Kroll (1996) 45 Cal.App.4th 1732 [53 Cal.Rptr.2d 280]; In re Marriage of Williams (2001) 88 Cal.App.4th 808 [105 Cal.Rptr.2d 923].) But when closely read, those cases are distinguishable, and this case would not constitute a showing of changed circumstances as understood there.
Neither party in this case addressed Williams or Brody. I assume that was because, while facially similar to ours, both are cases where the appellate courts essentially found that circumstances had changed, without expressly saying so. In Williams, Mom had already moved to Utah and taken two of her children with her. Faced with a fait accompli of radically changed circumstances, the court dealt only with the best interests of the child and the appellate court upheld its ruling. In Brody, Mom had lost her job, and been forced onto welfare rolls. When she was offered a job in Connecticut, she took it and was all but driving the moving van toward the border when she was stopped by the trial court. Again the trial court went straight to the issue of what was best for the child.
Neither case dealt with changed circumstances because in neither case was there any issue about whether there had been a change. Here, on the other hand, that is a huge issue—one the trial court did not address, and which is the key to our determination it erred. But I mention Williams and Brody not to set fire to strawmen, but to make clear that my research even into areas not raised by the parties, has disclosed no cases that would support a change of custody without a showing of some actual changed circumstance. To allow a modification of an existing custody order as far-reaching as that sought in this case based not on a change of circumstances but a change of mind, would render the stability promised by final custody orders wholly illusory.
Family Code section 3004 states: “ ‘Joint physical custody’ means that each of the parents shall have significant periods of physical custody. Joint physical custody shall be shared by the parents in such a way so as to assure a child of frequent and continuing contact with both parents, subject to Sections 3011 and 3020.” (Italics added.)
And, of course, if mere phone contact alone were sufficient to constitute the “frequent and continuing contact” required for “joint physical custody,” there would be no such thing as “sole custody.” Any order—save one that allowed a parent to move the child to a cold water cabin in the Sawtooth Mountains, out of reach of telephones or the Internet—would be a “joint custody” order.
Moreover, the very fact that Foreman suggested Niko might be abusing Taylor, as stated in her petition, certainly undermines the inference that she was still a booster of the father/son relationship.
Taylor’s appointed counsel, Harold LaFlamme, admitted he had told Niko’s expert, Smith, in a “private conversation” that he was “concerned that should [Smith] testify in the hearing, he would be the recipient of yet another complaint to the Board of Psychology.” (Italics added.) While LaFlamme took great pains to specify that he did not actually threaten to file the complaint personally, that distinction is irrelevant. The consequences of testifying were nonetheless made quite clear to Smith.
An attorney who feels a witness has acted improperly should confront him with it on cross-examination and/or report him to the proper authorities—not strong-arm him.