In re Marriage of Carney 157 Cal. Rptr. 383, 24 Cal.3d 725, 598 P.2d 36 (1979) William and Ellen were married and had two kids. Then they separated. Ellen willingly gave custody of the kids to William. This was an informal agreement, not backed by a court order. William moved to California and started living with another woman named Lori. She acted as their stepmother. A few years later, William was injured in an accident and was in a wheelchair with limited mobility. After he recovered, he filed for an official divorce from Ellen. Ellen moved for an order awarding her custody of both children. Ellen admitted that she had not visited the children once, nor contributed to their support in the five years since she separated from William. The Trial Court granted the divorce and awarded custody of the children to Ellen. William appealed. William argued that it was in the best interests of the children to remain with him. The Trial Court gave great weight to Williams' physical handicap and its presumed adverse effect on his capacity to be a good father. The Court found that there could be no "normal relationship between the father and the boys" unless William engaged in vigorous sporting activities. The California Supreme Court reversed. The California Supreme Court noted that since the children had been living with William for five years, in order to justify a change in custody, there must be a persuasive showing of changed circumstances affecting the children. Basically, the Court wasn't considering the issue as if it were a brand new custody determination, but instead as if it were a modification to an existing custody order. In general, in order to modify a custody order, there must be a material change in circumstances. Ellen unsuccessfully argued that since there was never an official custody order, the Court should be making their decision de novo, and on a level playing field. The Court evaluated Ellen and Williams' relative situations and found that William made more money, had a larger house, and was able to spend more time with the children than Ellen was. That implied it was in the children's best interests to remain with William. The Court found that the Trial Court's reliance on William's physical handicap was impermissible. "If a person has a physical handicap, it is impermissible for the court simply to rely on that condition as prima facie evidence of the person's unfitness as a parent or of probable detriment to the child." The Court noted that custody determinations can only be made on the basis of conduct, not conjecture. The courts can't just assume that there will be a detriment to the child, they have to actually look at what is really happening.