Opinion
D077036
04-22-2021
D.R., Respondent, v. K.E., Appellant.
Law Offices of Sondra S. Sutherland and Sondra S. Sutherland for Appellant. No appearance for Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. DN169087) APPEAL from an order of the Superior Court of San Diego County, Kelly C. Mok, Judge. Reversed. Law Offices of Sondra S. Sutherland and Sondra S. Sutherland for Appellant. No appearance for Respondent.
I.
INTRODUCTION
Appellant K.E. (Mother) and respondent D.R. (Father) are the parents of B.E.-R., who was seven years old at the time the court entered the custody order at issue in this appeal. The parties were never married and lived together only very briefly. For most of B.E.-R.'s life, he has lived outside of San Diego in various locations, with Mother, and until the most recent court order, Mother had always been B.E.-R.'s primary custodial parent. The record demonstrates that while Mother and Father have at times successfully managed co-parenting, their relationship has often involved conflict and disagreement.
At the time of the proceeding that led to the order from which Mother appeals, Mother and B.E.-R. were living in Phoenix, Arizona and Father was living in San Diego County. The parties were sharing joint legal and physical custody of B.E.-R. pursuant to a permanent custody order that was entered in spring 2017. In that order, the court granted Mother's request to move the child's residence from Placer County, California to Phoenix, Arizona—a move that brought the child geographically closer to Father's home in San Diego County. After this move, the amount of conflict in the parties' co-parenting relationship increased. Over a period of approximately six months, the parties had significant difficulty reaching agreement as to when or how B.E.-R. would be delivered to Father to permit Father to exercise his custodial time with the child in San Diego. Further, although Father was granted the right to exercise custodial time with the child in Phoenix for periods of up to five consecutive days, the record demonstrates that he made no attempt to do so during this time period. As a result, Father visited with B.E.-R. in person only once over a period of several months. During this time, Mother was pregnant with, and gave birth to, B.E.-R.'s half-brother.
Father filed a request to change the custody order to award him primary physical custody of B.E.-R. and allow him to move the child's residence to San Diego. Father alleged that Mother had denied him time with the child, that Mother's home life was disruptive, that she had been involved in a relationship that involved domestic violence, and that she abused alcohol. The trial court held a series of hearings over a period of nearly a year and a half to take evidence pertaining to Father's request. During this time, the child continued to attend school in Arizona and perform well. Other events also occurred, including Mother's arrest for DUI in Arizona, and her subsequent participation in, and completion of an intensive outpatient treatment program addressing substance abuse and PTSD issues.
The trial court issued an order that effectively reversed the custody arrangement, giving Father primary physical custody of the child and permitting Father to move the child to San Diego, while allowing Mother to have visitation with the child for various periods of time throughout the year. Our review of the record and the court's order demonstrates that in issuing this order, the trial court failed to apply the appropriate standard for addressing a request to change a final custody order. Specifically, the court failed to apply the "changed circumstances" rule, which courts must apply when a parent seeks a change in custody after a final custody order is in place. The court's order, and the record, further demonstrate that in applying the incorrect standard, the trial court did not appear to consider the child's interest in the stability and continuity of the existing custodial relationship. In addition, as we describe in greater detail below, the trial court on remand should carefully weigh and consider Father's role in the co-parenting failures that occurred in this case, as well as the fact that B.E.-R. had a sibling relationship in Arizona.
Because the trial court applied an incorrect standard to Father's request to change custody and failed to consider the child's interest in stability and continuity, we conclude that reversal is required. We recognize that on remand, the court will be faced with different circumstances, given the passage of time since the court entered the order at issue in this appeal. The trial court may consider the child's and the parties' present circumstances, in addition to the views expressed in this opinion, to determine what the proper custody arrangement should be.
II.
BACKGROUND
A. Events leading up to the current proceedings
Father and Mother were never married, but lived together for a few months during 2011. In August 2011, Father was charged with one count of battery of a current or former significant other, one count of vandalism, and one count of damages to a wireless communication device to prevent assistance in relation to a domestic violence incident involving Mother, who was pregnant with B.E.-R. at the time. Father ultimately pled guilty to one count of violating Penal Code section 415, subdivision 2 (disturbing the peace through a loud noise) in exchange for the dismissal of the case upon his successful completion of a 52-week domestic violence course. In November of that year, a criminal protective order was issued protecting Mother from Father for a period of three years.
While this matter was pending on appeal, Mother filed an unopposed request for judicial notice seeking to have this court take notice of certain documents. The documents include: (1) records of the domestic violence criminal case against Father; (2) records showing the dismissals of two requests for domestic violence restraining orders sought by Father against Mother; (3) records regarding the domestic violence criminal case against an ex-boyfriend of Mother's who was a witness for Father against Mother, showing that he pled guilty to a domestic violence charge and that there was a criminal protective order in her favor at the time he testified; (4) Mother's Arizona court filings requesting that an Arizona court assert jurisdiction and modify the custody order in Arizona; and (5) the trial court's " Judicial Portal" records, which demonstrate that Department 17, where the parties' case has been pending, has had multiple different judges assigned. Mother sought to have the trial court take judicial notice of the first four sets of documents, but the trial court did not rule on Mother's request, thereby effectively denying it. We conclude that the first through third sets of documents are relevant and helpful to this court in assessing the appeal. We therefore exercise our discretion to take judicial notice of the first through third sets of documents, which are judicially noticeable as "[r]ecords of . . . any court of this state." (Evid. Code, §§ 459, subd. (a), 452, subd. (d).) We deny the request as to the fourth and fifth sets of documents as irrelevant to our determination of the appeal.
The case against Father was ultimately dismissed in April 2013 upon his completion of the 52-week domestic violence course. Also in April 2013, the corresponding "protective order in criminal proceeding" was terminated, given the dismissal of the case against Father.
On February 28, 2012, prior to B.E.-R.'s birth, Father commenced a proceeding under the Uniform Parentage Act (Fam. Code, §§ 7600 et seq.) by filing a "Petition to Establish Parental Relationship." B.E.-R. was born in March 2012.
In August 2012, the trial court adopted the Family Court Services (FCS) recommendation that Mother be granted sole legal custody and primary physical custody, with a 95 percent time share for Mother and a 5 percent time share for Father. In view of the history of domestic violence in the parents' relationship, the court authorized Mother to keep her address confidential, pursuant to California's "Safe At Home" Program. The court entered a judgment in the matter on August 14, 2012.
In November 2012, just three months after the court entered its custody order, Father applied ex parte for an order changing custody. The request was denied.
At some point in 2013, it appears that Father again moved for an order changing custody. The record does not include his moving papers. At this time, Mother was living with the child in Placer County, California. During the required FCS mediation, the parties agreed to a change to provide for joint legal custody, as well as an increase in Father's parenting time to less than 10 percent until January 2015, at which time his parenting share would increase to approximately 17 percent. The court adopted this parenting plan as the order of the court in May 2014.
The record demonstrates that Mother and Father lived in the same city for only a brief period of time immediately after the child was born.
The parents returned to court in 2015, pursuant to another filing by Father to change the custody order. The court adopted the recommendations in an FCS report, with minor changes, providing Father with a time share of approximately 15 percent, comprised of periods of up to five days in Father's care upon 14 days written notice to Mother, as well as longer periods of time over certain holidays, as well as multiple telephone calls and " 'virtual visitation' " to take place with the parent who did not have custody of the child every Sunday evening. The court also ordered both parties to complete a "co-parenting course."
Father asserted that Mother was making it difficult to co-parent, and Mother asserted that Father repeatedly cancelled his visits or failed to show up for them.
The record does not demonstrate whether either parent enrolled in or completed the required co-parenting course.
The next time the parents came before the court was April 2016. At that time, Mother sought the court's assistance in ensuring the child's return to her care; Father had failed to return the child at the agreed upon time after a visit, as required by the court order. The court issued an order requiring the immediate return of the child to Mother's custody.
A few months later, in June 2016, Father filed an ex parte application seeking Mother's address and asserting that Mother did not plan to deliver the child to Father on June 18th, pursuant to the court order. The court issued an order requiring Mother to comply with the court order on June 18th, and to provide Father with her address.
There is no indication in the record that the court considered the history of domestic violence in the parties' relationship, or Mother's registration in the address protection program, when requiring that she provide her address to Father.
In December 2016, when B.E.-R. was just under five years old, Mother filed a request for order, seeking approval of a move-away request that would allow her to move the child's residence to Phoenix, Arizona. Mother did not seek to modify or otherwise change Father's custodial time from the order that was then in place. Mother indicated that the move would be in the child's best interest because a move to Phoenix would result in Mother and B.E.-R. living closer to Father than Mother's Placer County residence, and because the child's "maternal and paternal families live in Arizona." In her declaration, Mother also indicated that she planned to enroll in a Master of Science degree program at Arizona State University, and that the specialty program at Arizona State University was the closest one of its kind that she could find to Father's residence.
Mother noted that the approximate driving time between her planned residence in Phoenix and Father's residence in San Diego would be 6 hours, while the approximate driving time between her Placer County residence and Father's residence was between 11 and 12 hours.
On January 25, 2017, the parties participated in another FCS conference during which they agreed to a custody plan that accounted for Mother's proposed move to Phoenix. The custody plan that the parties agreed to, and that was outlined in the FCS report filed with the court, included that Father's time share would be approximately 26 percent after Mother's move to Phoenix, and that exchanges of the child would take place in Yuma, Arizona. The plan included specific times that Father would care for the child, but also allowed for Father to exercise custodial time of up to 5 days in a row in the Phoenix area upon 14 days written notice to Mother. The FCS report included a recommendation that the parties "keep the other informed of his/her address and telephone numbers," and that this information not be used to "harass[ ], annoy[ ], disturb[ ] the peace of the other or [to] invad[e] the other's privacy."
By March 29, 2017, the date of the hearing on Mother's move-away request, Father was no longer in agreement with the custody plan that the parties had previously agreed to, or with Mother's proposed move to Phoenix. The court therefore continued the hearing to April 6, 2017.
On April 6, 2017, the court took evidence from both parties in the form of their testimony, and proceeded to consider a number of "La Musga factors." (Italics added.) Among the factors that the court found relevant was that the child was five years old and had not yet started school, and that the move would allow the child to be closer to Father than he was at his Placer County residence. The court adopted the recommendations in the FCS report with very minor changes, finding that it would be in the child's best interest to maintain Mother's primary custody role and to grant the request to move the child's residence to Arizona.
In In re Marriage of LaMusga (2004) 32 Cal.4th 1072 (LaMusga), the Supreme Court set forth a number of nonexclusive factors that a court should consider when deciding whether to modify a custody order "in light of the custodial parent's proposal to change the residence of the child." (Id. at p. 1101.) These factors include "the children's interest in stability and continuity in the custodial arrangement; the distance of the move; the age of the children; the children's relationship with both parents; the relationship between the parents including, but not limited to, their ability to communicate and cooperate effectively and their willingness to put the interests of the children above their individual interests; the wishes of the children if they are mature enough for such an inquiry to be appropriate; the reasons for the proposed move; and the extent to which the parents currently are sharing custody." (Ibid.)
A formal written custody order was entered on May 24, 2017. The written order left it to the parties to come up with a schedule for Father's parenting time. For example, the order stated that Father "shall care for the child up to five days at a time, any time he is visiting the child's county of residence," and required Father to "provide the mother with a minimum 14-day advanced written notice of his visitation plans." The order also stated that "[t]he father shall care for the child one weekend each month." However, rather than specifying which weekend, the order left it open-ended, providing instead that "[t]he father's weekend parenting time shall be during any 3-day holiday weekend or any 2 consecutive days, or any other weekend, or by the parent's mutual agreement." Further, the order did not set out any parameters as to how or when the parents would have to agree on which weekend during any month the child would spend with Father, how communication about that weekend was to occur, or any other details that might assist the parties in planning for and scheduling such visitation. The order provided that exchanges of the child were to take place "at school/childcare," or otherwise, at a Chipotle in Yuma, Arizona. The order required both parties to notify the other of any "AM/PM program[s], camp or . . . childcare provider" that a party planned to utilize during his/her custodial time with the child, and that the parties provide each other with the addresses and telephone numbers of such caregivers.
The record demonstrates that the parties' co-parenting relationship further deteriorated after Mother's move to Arizona, and that both parties engaged in conflict and unsuccessful co-parenting conduct.
We provide a fairly detailed description of the recent history between the parties because this history is relevant to our conclusions about the custody order challenged on appeal.
On June 12, 2017, less than a month after the court entered its formal order, Father filed another ex parte application. In the application, Father asserted that Mother had indicated that the child's summer visitation with Father was scheduled to start on June 11, 2017, and that if Father did not begin his visitation on that date, he would forfeit his visitation. Father contended that the visit was to begin on June 17, 2017. Father further asserted that Mother was refusing to pay her half of the child care costs for the visit with Father. The court denied Father's ex parte application, noting that it did not involve an emergency and suggesting that Father file a regular motion.
The court's order did not specify a certain date in June that Father's summer break visitation was to start, but instead stated that "[t]he father shall care for the child every year during his spring break and for six weeks of summer break, beginning one[ ]week before Father's Day." On our own motion, we take judicial notice that Father's Day in 2017 fell on June 18, 2017. A week prior to June 18, 2017 would be June 11, 2017.
Although Father made this assertion in his ex parte application, we have found no supporting evidence in the documents lodged by Father in this case and included in the record on appeal demonstrating that Mother indicated that she would not pay for half of the child care costs Father would incur.
Messages sent between the parties through a court-mandated messaging application called "Talking Parents" that were submitted to the court later in the proceedings demonstrated that after Father's misunderstanding regarding the start date for the court-ordered six-week visitation period, the parties attempted to arrange for a two-week visitation period for Father. In a declaration, submitted to the court, Mother stated that Father had failed to "show up" on either June 11, 2017, the date his visitation was to start pursuant to the court order, or on June 17, 2017, the date Father apparently believed his visitation was set to start. Because Father had not made any plan to exchange the child on either of those dates and "did not communicate alternate dates," Mother believed that Father "had decided to waive his summer custodial period." Mother had intended to rely on Father to care for B.E.-R. during Father's six-week visitation period; as a result of Father's failure to make arrangements for an exchange at the time provided for in the court order, Mother had to make the move to Arizona while having physical custody of B.E.-R., which she had not planned to do, and also had to "rush" to "find . . . constructive and enriching" summer activities for the child. She "enrolled him in kindergarten prep classes and swimming." Mother had to pay to enroll the child in these activities.
When Father later requested a two-week custodial period with the child beginning June 25, Mother sought advice from her attorney. After consulting with her attorney, Mother offered Father a two-week period from July 2, through July 16. Father responded that "[f]or daycare and work reasons I can do July 9th through 23rd if that works for you." Mother informed Father that she had already paid for "kindergarten prep classes and swimming" that were to start on July 17th, and reiterated her offer of July 2nd through the 16th. She also offered to allow Father to have the child for an overnight visit from a Sunday to Monday. The beginning of Father's next response to Mother is cut off in the record. However, it appears that he became upset and suggested that he was entitled to the child "until the 23rd," and then said, "[Y]ou're going to say those dates don't work? I would advise that you speak to your attorney before you respond." Mother responded that when Father "did not show up on 11th as court ordered, my attorney and I considered that your cancellation of visitation," and explained that she "was forced to make other plans for [B.E.-R.]" A few days later, Mother asked Father whether he "want[ed] time with [B.E.-R.] on your days off tomorrow or Monday?" The record does not disclose any response from Father to this message. Father apparently did not exercise the custodial time that Mother offered, and Mother did not alter the child's pre-planned summer activities.
It does not appear from the record that Father sought weekend visitation, or any visitation shorter than a two-week period, with the child during summer 2017. Mother offered Father time with the child for shorter periods.
The parties' inability to agree on visitation continued after the summer of 2017. The parties set up a "thread" on the Talking Parents application "to set up monthly visits each month, as well as 'up to 5 days' visits when possible." With respect to an August visit, Mother indicated in early July that she would receive the child's "sport and school schedule soon" and would inform Father of good dates for visitation. At some point, Father stated to Mother, "This is about open communication. That should be what we're doing here. What is the sports you're talking about is it after school? As far as his schedule goes[,] I already have that. His first week of school starts August 7." Mother corrected Father, stating that the child was to begin kindergarten on August 3, 2017, and again mentioned to Father that he could have any time with the child in Arizona: "Also, it sounds like you're trying to maybe pencil in some time with [the child], and if that is the case then you just need to follow the court order and give me 14 days advance notice of your intent to parent, there isn't any other way." Thereafter, Father had a visitation with the child on August 26 and 27; the parties met in Yuma for the exchange. However, Father did not engage in visitation with the child in September, October, or November. In subsequent pleadings filed by the parties, and pursuant to the messages sent between the parties during this time period, the parties disputed what led to Father's inability to engage in visitation with B.E.-R. during those three months.
Mother asserted that because of severe motion sickness that she was experiencing related to her pregnancy, her doctor would not clear her to travel for more than 45 minutes, making an exchange in Yuma impossible. Mother indicated to Father that he could parent the child in Arizona, but that she would not be able to meet him for parenting in San Diego as a result of her inability to travel for more than 45 minutes. Father implied in his communications with Mother that she was falsifying her claim of severe motion sickness in order to deny him parenting time. The parties' communications demonstrate significant conflict during this period of time, and their failure to reach a successful compromise. After the parties failed to agree on a time for Father's visitation with the child in October, Father did not make any requests for a monthly visit on the Talking Parents thread in November or December 2017.
The parties' failures in communication extended to Father's plans to take B.E.-R. to Texas for Thanksgiving in 2017. Mother had agreed to Father's plan regarding travel to Texas, and the parties agreed to a meeting time and place on November 22, 2017 for Mother to deliver B.E.-R. to Father so that Father and the child could board a flight. The parties did not initially make a definitive plan for the child's return to Mother. However, the parties' messages in the Talking Parents application demonstrate that on November 15, 2017, Father asked Mother, "What time do you want to meet in Yuma on Sunday the 26th?" On November 18, Mother responded, "1130am/noon work?" The Talking Parents application demonstrates that Father did not view this message until January 23, 2018. It appears from the record that Mother was unwilling to allow the child to accompany Father to Texas without written confirmation of the return exchange and viewed Father's failure to respond to her inquiry of November 18 as a failure to comply with the court order.
On November 17, 2017, Father sent Mother a message on the Talking Parents application in which he stated, "The next message you receive on Talking Parents from me will be information regarding my attorney. I will not send another message (or view) until that time." In a later-submitted declaration, Father asserted that Mother "failed to get [B.E.-R.] to the airport in time for our flight."
Three days later, Mother filed documents in an Arizona court seeking to register, enforce and modify the California custody order in Arizona.
On December 11, 2017, Mother sent a message to Father through the Talking Parents application, attempting to discuss a time for Father to take custody of the child around the Christmas holiday, even though the court order provided that Mother was to have custody of the child during the entire Christmas holiday in odd-numbered years. Father did not view the message until February 7, 2018. Father also did not respond to Mother's texts or phone calls during this period. Father did not reach out to the child during this time, either.
In December 2017, Mother gave birth to B.E.-R.'s half-brother, J. There is no record that Father attempted to call or communicate with B.E.-R., or that he attempted to exercise his custodial time with the child, from December 2017 through Father's filing of a request to change the custody order in late February 2018. B. Father's request to change custody
Mother stated in a declaration that Father did not communicate with the child during this period of time.
On February 20, 2018, Father, represented by an attorney, filed another ex parte application. In the application, Father requested that Mother disclose her "physical address" to him. He asserted that Mother "repeatedly denies [him] his court-ordered visitation," and that he had "not been able to exercise his court ordered visitation for NEARLY A YEAR! due to mother's denial." Although somewhat unclear, the ex parte application appears to also include an "RFO for modification of custody/visitation."
The document includes a typewritten notation as follows: "*to serve and to hear RFO for modification of custody/visitation."
The following day, Father filed a "Request for Order" (RFO). On the form, Father marked boxes indicating that he was seeking to change "Child Custody," "Visitation," and "Child Support," and included in the section titled "Other" that he was seeking an order for a "Move Away." The court set a hearing on Father's RFO for April 25, 2018. In the declaration attached to Father's RFO, he asserted that his request was for the court to award him sole legal and physical custody of B.E.-R.
Father asserted in his declaration that the grounds for his motion were that Mother "does not provide an appropriate environment for our son" (capitalization omitted), "is attempting to modify this court's custody order in another state" (capitalization omitted), and "refuses to provide her address, disregarding this court's prior orders, which remain in effect." With respect to the first ground, Father cited Mother's purported relocations to multiple different addresses, and conveyed third-party hearsay that Mother "abuses alcohol," and at some point years prior, had "threaten[ed] [a former boyfriend] with a gun" and had "threatened to kill herself." With respect to the second ground, Father asserted that Mother's filing of an " 'Affidavit to Register Foreign Custody, Legal Decision Making, Parenting Time or Visitation Order in Arizona' " in an Arizona court constituted an "attempt to manipulate both me and this court." Father stated, "I submit that this request is yet another example of [Mother's] efforts to alienate our son from me as well as evidence of her manipulative character." As to the third ground, Father complained that the court had ordered Mother to provide him with her physical address, and that Mother's refusal to provide him with her address "thereby frustrat[es] visitation between me and our 5-year old son." He then asserted that "due to [Mother's] denial of my visitation with [B.E-R.], I HAVE ONLY HAD ONE (1) DAY OF VISITATION WITH HIM DURING THE PAST ELEVEN (11) MONTHS!" In the "SUMMARY" portion of his declaration, Father indicated that Mother gave birth to a baby boy in December 2017. Father complained that Mother had not informed him of her pregnancy or the birth of the child. Father asserted that B.E.-R. would "flourish in [his] care, away from the ever-changing dynamic in [Mother's] home and away from the ongoing violence, lies, thievery and deception that has and will continue to occur as long as he is in [Mother's] care."
Father's claim that he was unaware of Mother's pregnancy is suspect, given the discussion between the parents regarding Mother's contention that her doctor would not clear her to travel for more than 45 minutes because of severe motion sickness related to her pregnancy.
The trial court ordered the parties to participate in "FCS mediation" on March 27, 2018. The court set Father's request to modify the custody order for a hearing on April 25, 2018. C. Events that occurred between Father's request to change custody and the parties' FCS conference related to Father's request
Pursuant to the court order, Father was entitled to custody of B.E.-R. over the child's spring break in March 2018. In communicating about his plans for childcare while Father worked during this period of time, Father indicated that he would be utilizing a particular daycare provider. Mother knew that provider and called the person to verify the child's enrollment for the spring break period. Mother was informed that this daycare provider "had no room to accommodate the child." Father then provided Mother with the name of a different daycare provider in Riverside County. Mother tried to communicate with that provider, only to find that "it was not a daycare name, and the number was disconnected." Concerned that Father might utilize someone not properly vetted to care for the child, Mother consulted with her attorney, and "she was advised to do what was best for the child, so she decided not to exchange the child" for the spring break period.
On March 13, 2018, Mother contacted local police to complain that her sister was refusing to leave Mother's residence. Mother's sister ultimately left the residence before police arrived. Apparently Mother's sister and/or brother-in-law had called Father and given him Mother's address. In a later-filed declaration, Father contended that Mother's sister and brother-in-law had called him worried about the child, and so Father called police seeking a welfare check on the child. Police conducted the welfare check. A police report noted that "the mother had been drinking," but that "she was considered not to be too intoxicated to care for children."
Mother disputed that her sister had contacted Father and made these allegations, and contended that her sister's husband, with whom the sister had a contentious relationship, had called Father and provided Mother's address to him. Mother's sister's husband died during these proceedings and was unavailable to be called as a witness.
Two days later, on March 15, Mother filed a motion for a UCCJEA conference regarding jurisdiction over the child in an Arizona court, as well as a petition to modify the custody order. Mother complained that Father's failure to abide by the court order and exercise his parenting time was interfering with her ability to provide consistency for the child.
On the night of March 16, 2018, Father left San Diego County and drove overnight to Mother's residence in Arizona, arriving very early on the morning of March 17. Father contacted law enforcement in Arizona to accompany him to Mother's residence, where he and a police officer knocked very loudly and rang the doorbell numerous times. Mother did not answer the door. Mother later declared that given Father's lack of communication with her or the child for approximately three months, and the fact that Father had never come to Arizona to visit with the child, in addition to the past history of domestic violence in the relationship, she had been "shocked and surprised by [Father's] conduct" and "did not feel safe opening the door." Mother was fearful and left with the children to stay at a hotel in a different town. D. The FCS conference and report
An FCS conference was held on March 27, 2018, in San Diego County. The parties had coordinated custodial time for Father to occur around the FCS conference, between March 28-31.
During the FCS conference, the parties provided divergent accounts regarding various events, and had conflicting explanations for the communication and co-parenting failures that had taken place. Although the FCS counselor, Christina Torrinello, mentioned at the beginning of the report that both parties had acknowledged the history of domestic violence in this case, including a request for a domestic violence restraining order sought by Father against Mother that he had voluntarily dismissed, the FCS counselor noted that Father had reported with respect to his own domestic violence that "the charges against him were dismissed and the CPO was vacated before it was set to expire." The counselor either was not informed about, or failed to report, that Father had pled guilty to a lesser charge, and to the dismissal of the case in exchange for completing a 52-week domestic violence course, and that his completion of this course was the reason for the dismissal, not the lack of evidence to prove a charge. The FCS counselor did note, however, that Mother maintained a confidential address through a protected address program in Arizona.
The FCS counselor had contacted the child's school and received information that the child had been absent from school 17 days during the school year. However, seven of those days were on or near Mother's trip to San Diego for the FCS conference, during which Father had parental time with the child. Other information gathered by the FCS counselor and relayed in the report included concern that the child did "not have any established peer relationships and he uses a baby voice to talk to peers."
A partial explanation for the child's "behavior issues" involved "a poor mix of students" in his classroom. The child's classroom was changed and the child's behavior "somewhat improved."
In the April 16, 2018 FCS report, the FCS counselor described the events of March 13, 2018, when Father obtained Mother's address and sought a welfare check on the child, as well as details about Father's overnight drive to Phoenix to attempt to pick up the child without notice to Mother. The FCS counselor described Mother's concern about exchanging the child for the spring break visitation because Father had not secured daycare for the child, and the fact that Mother "fe[lt] threatened that the father was able to obtain her address that is supposed to be protected." However, in the next paragraph, the FCS counselor expressed "significant concerns about the pattern of parental conflict in this case and the child's lack of contact with the father over the course of the last year." The report indicates, erroneously, that the record contained "multiple Ex Parte hearings related to violations of court orders" filed by Father. The FCS counselor also "question[ed] the validity of the mother's intentions for relocating to Arizona," given that Mother never began the education program that she mentioned when requesting a move-away order. The FCS counselor failed to note that the move resulted in Mother and B.E.-R. living closer to Father than they had previously, or that one of the reasons for the request was that the child had both maternal and paternal family in Arizona. The FCS counselor also blamed Mother's "efforts to conceal her address" for "further enabl[ing] her to defy court orders, and make co-parenting and/or exchanging the child with the father virtually impossible." In reaching this conclusion, and despite having reported that the court had authorized Mother's participation in a "protected address program in Arizona" in an earlier section of the report, the FCS counselor failed to acknowledge in this section Mother's registration of her address as confidential pursuant to a state program for victims of domestic violence, or the fact that the court order did not require that any exchanges of the child take place at Mother's residence. In addition, the counselor indicated a concern about the child's "reported behavior problems and developmental delays."
This description of the record does not appear to be factually accurate. In fact, the record demonstrated that although Father had filed multiple requests to change custody (and had essentially been requesting a change in custody annually for a period of time), there had been only two ex parte motions filed by Father in which he alleged that Mother was violating the court order. One involved Father filing an ex parte motion as a preemptive move, asserting that Mother was planning not to provide him with parenting time pursuant to the court order. The record does not disclose that there was a determination that Mother was planning to deny Father parenting time and there was no finding that she had done so. The other ex parte motion that Father filed in which he alleged a violation of the court order by Mother was when he asserted that Mother had improperly determined when his parenting time was to begin in summer 2017; however, Mother's calculation of that date was correct. Further, the FCS counselor failed to note or account for the fact that the record demonstrates that Mother also moved ex parte as a result of Father's violation of the court order when he failed to return the child pursuant to the terms of the order, and that the court had granted Mother's requested relief at that time.
The FCS counselor ultimately recommended a reversal of the existing custody arrangement, i.e., that Father have primary physical custody. The counselor further recommended that Mother participate in a psychological evaluation, and that her parenting time with the child be supervised in San Diego County until the court could review her psychological assessment. The counselor also recommended that Father have sole legal custody of the child, and that Mother have only a 5 percent time share. In setting forth this recommendation, the FCS counselor chided Mother as "consistently demonstrat[ing] herself to be skilled in finding ways to circumvent or defy court orders," which the record does not support. The counselor also recommended that minor's counsel be appointed to represent the child, and that both parents complete a high conflict co-parenting program. E. Court proceedings related to Father's request to change custody
On April 24, 2018, the day before the hearing on Father's Request for Order, Father filed a document titled "Request that California Retain Jurisdiction Over the Minor Child in this Case."
The court held an unreported hearing on April 25, 2018, regarding Father's RFO requesting a change in custody. Mother's attorney, Raj Matani, requested a continuance, noting both that Mother had filed a request in an Arizona court that Arizona assume jurisdiction, as well as the fact that he had been retained only the day prior and wanted to subpoena the FCS counselor to testify. He also indicated that he was requesting an evidentiary hearing.
A detailed minute order from the hearing was filed that date.
The trial court stated that it "has never relinquished jurisdiction" over the child, and that it had "continuing jurisdiction." However, the court granted the requested continuance, setting a hearing for May 29, 2018. The court issued a temporary order granting Father parenting time between May 25 and May 29, 2018, the date on which the parties would be returning to court, and indicated that all other orders would remain in effect.
On May 22, 2018, both parties designated FCS counselor Torrinello, among others, as a witness.
On May 24, 2018, Mother filed the declaration of Cristine Quinn, who was the child's teacher in Arizona. The teacher wished to "clarify statements made to Family Court Services with respect to [B.E.-R.] and his development at school," and indicated that she felt "compelled to clarify" after being "informed of how [B.E.-R.] has been portrayed to this Court." The child's teacher noted that the child's use of " 'baby talk' has subsided" and that when she learned that there was a new baby in B.E.-R.'s family, "it made perfect sense that this behavior could be a response to the changes happening in his life." She also indicated that B.E.-R.'s "interactions with peers are positive and age appropriate," and that his "behavior in the classroom has been successful."
The court held a hearing on May 29, 2018. At that time, Mother's attorney requested that the FCS counselor consider the lodgments submitted by both parties, and also requested a further continuance and that a one-day evidentiary hearing be set. The court instead set a 3-hour evidentiary hearing, to take place on July 24, 2018. The court ordered FCS counselor Torrinello to review the parties' lodgments and to return as a witness on July 24. The court also entered an order granting Father custody of the child between May 31, 2018 and the July 24, 2018 hearing date.
The order erroneously stated "May 31, 2017."
At the July 24, 2018 hearing, which also was not reported, the parties requested to meet and confer, and the trial court urged them to reach a settlement. The parties did not reach a settlement and the hearing proceeded. Mother called an out-of-state witness to testify. At the conclusion of that witness's testimony, Father's attorney attempted to call FCS counselor Torrinello to testify. Torrinello was described as "not yet available" in the court minutes. The record does not indicate why Torrinello was unavailable. At some point, Torrinello entered the courtroom but was not sworn in as a witness. During the hearing, Father's attorney proposed that the parties participate in an Evidence Code section 730 custody evaluation. The parties agreed to meet and confer as to whether to conduct an Evidence Code section 730 custody evaluation.
At the conclusion of the hearing, the trial court ordered FCS counselor Torrinello to contact the child's school for an update on the child's progress before the next hearing. The court continued the hearing to October 18, 2018 and ordered Torrinello to appear at that time. The court also entered a temporary order that "Father shall have visitation with the child for two weekends every month," and indicated that Father shall have the child on the first and third weekends of each month. The court also specified how the parties were to pay for transportation, and indicated that the parties could either fly to do the exchanges or meet in Yuma. The court set a trial readiness conference for August 29, 2018 "for an update on if the parties have decided to do a 730 evaluation or will be going forward on 10/18/18."
On August 29, 2018, the court conducted an unreported trial readiness conference. Mother's attorney, Raj Matani, failed to appear or to call in. The court confirmed that the October 18, 2018 hearing would go forward.
On October 2, 2018, Mother substituted attorney Erica Bloom for attorney Matani.
On October 10, 2018, Father filed a declaration in which he related that on April 13, 2018, Mother was involved in an incident in which she was injured at or near a bar. He also reported that Mother was involved in a domestic violence incident with the father of J., her second child and B.E.-R.'s half-sibling, on June 20, 2018 in Escondido, California.
Mother was apparently assaulted and may have suffered a concussion, although she had no memory of how she received her injuries. She was dropped off at her home with visible injuries by a friend and the friend's boyfriend. Mother's children's babysitter called police. Mother went to the hospital to have her injuries checked.
The court held the second portion of the evidentiary hearing on Father's request to change custody on October 18, 2018. The only witnesses who testified on this date were the parties. Although FCS counselor Torrinello had been ordered to appear at this hearing, she was not present. Mother testified in response to the court's inquiries about her "move to Arizona, her family there and her school." The court "d[id] not find [Mother's] testimony regarding her schooling to be credible."
The court issued additional interim orders at the conclusion of this hearing. The court ordered Mother to refrain from alcohol use within 12 hours before or while the child is in her care. The court also ordered that Mother complete a "comprehensive psychological evaluation which is to include a substance abuse assessment" with a licensed clinical professional. The court specified that Mother was to present the names of three professionals who could perform the assessment, and Father could select one of them. The court's minute order states that "Father is to have input with and be interviewed by the evaluator." However, the court's formal Finding and Order After Hearing directed that "Father shall participate in the evaluation as directed by the a[ss]essor." There was no further discussion of an Evidence Code section 730 custody evaluation. The court continued the matter to March 11, 2019.
On October 23, 2018, Mother completed an "Alcohol & Drug Evaluation" at the Stonewall Institute Drug and Alcohol Treatment Center in Phoenix. Based on this evaluation, the Stonewall Institute recommended that she participate in a "16 hour Alcohol & Drug education class for prevention of substance abuse and treatment for post-traumatic stress symptoms."
In late November 2018, Father told Mother that he would be coming to Arizona to take custody of the child on the first weekend of every month. However, between December 2018 and March 2019, Father did not travel to Arizona for custodial visitation with the child.
Between February 21, 2019 and May 15, 2019, Mother attended group therapy and completed the "Intensive Outpatient Mental Health Program" (boldface omitted) and "Chemical Dependency Program" at the Banner Del E. Webb Medical Center in Phoenix.
While Mother was participating in this therapy, on March 11, 2019, the court held the next unreported hearing on Father's request to change custody. When presented with Mother's therapy program information, the court minutes demonstrate that the court indicated that "the psychological evaluation was ordered not because of concerns of PTSD but for mother's hiding of the child from father and issues with drinking." After further discussion about the parties' communications and Father's "weekend visits in Arizona," the court "clarifie[d] that the full psychological assessment is to be a comprehensive evaluation with input from father as the assessor deems necessary and appropriate. It is to address mother's ability to parent the child and her ability to co-parent." The court also ordered Father to provide an "update on plans for if he were to have primary physical custody," and requested that the parties provide "printouts of any messages the parties want the Court to consider." The court continued the matter to July 17, 2019.
Although the hearing was unreported, there exists a detailed minute order that specifies what occurred at the hearing and what was said, virtually minute by minute and seemingly verbatim.
The court apparently did not address that portion of Mother's intensive outpatient program dealing directly with chemical dependency issues.
The same day, the parties stipulated to certain visitation time for Father, and further stipulated that instead of Mother providing the names of three potential psychological evaluators, Father would provide a list of three names to Mother by April 1, 2019, and Mother was to select one of them by April 8, 2019.
On May 7, 2019, Father moved ex parte to obtain an order requiring the parties to pay a retainer for Dr. Carol Mellen to begin Mother's evaluation. He asserted that Mother was not moving forward with the decision on an evaluator. The court issued an order stating that the "parties [are] to follow existing orders" and that the "Psychological evaluation of [Mother] is to be done by [the] 7-17-19 hearing date."
On May 7, 2019, Mother initiated a psychological evaluation with Nicole Spanakis, Psy.D., L.P., who was not on the list of three evaluators that Father had provided to Mother. The evaluation took place over multiple months, and involved the use of a variety of assessment tools and interviews.
On July 16, 2019, Father filed a declaration alleging that on February 20, 2019, a DUI action was filed against Mother in Arizona, related to an October 4, 2018 event. Attached to the declaration is a document that appears to be case information from a "Public Access to Court Information - Case Search," showing that a criminal complaint was filed against Mother on February 20, 2019, and that the matter remained pending as of June 10, 2019.
Mother's briefing indicates that this matter has now been resolved, but it is not part of the record on appeal.
Also on July 16, 2019, Mother signed a declaration in which she acknowledged her arrest for DUI arising from an October 2018 incident. She declared that she had been alcohol-free for over four months, and that she had actively participated in and completed an outpatient behavioral group therapy program. In addition, Mother declared that she regularly attended group therapy and bi-monthly individual therapy, and also attended AA meetings.
The court held another hearing on Father's request to change custody on July 17, 2019. Mother's attorney requested a continuance because mother's psychological assessment was not yet completed. Father raised the issue of the pending DUI case against Mother. The court granted the request to continue the hearing, and indicated that at the future hearing, the court would hear testimony from Father's witnesses, including the father of Mother's second child, J., and mother's witnesses, and would also hear information regarding Mother's pending DUI case. The court ordered Mother to completely abstain from alcohol. The court continued the matter to August 27, 2019.
On August 3, 2019, B.E.-R. began second grade in Phoenix.
On August 23, 2019, Mother lodged exhibits in anticipation of the August 27, 2019 hearing date. Included among the exhibits is a 16-page report completed by Dr. Spanakis, summarizing Mother's psychological assessment. In this report, Dr. Spanakis noted that Mother was seeking "a comprehensive evaluation" which was to include "an assessment of her parenting abilities." Dr. Spanakis concluded that Mother "does not meet criteria for an alcohol related disorder," but that she "should continue to monitor and be aware of alcohol use," given that Mother "reported a DUI charge that was in discovery at the time of the evaluation." With respect to Mother's parenting, the evaluator stated, "With regards to [Mother's] concerns over her ability to be a good parent, it is the evaluator's impression that she is very conscientious about her decisions and actions as a mother. She has demonstrated success in overcoming difficult situations thus far, including being able to help her eldest son effectively deal with being bullied last year in school. She is taking appropriate action to limit the possibilities of her sons being exposed to potentially harmful and toxic relationships with their fathers. She is also taking appropriate action to heal from her past trauma and avoid similar situations in the future which is relevant to her sons . . . . [Mother] is displaying admirable efforts to strive to make decisions that are in the best interest of her sons. . . ." F. The court's final evidentiary hearing and order changing custody
Dr. Spanakis further stated that "[a]fter in depth discussions with [Mother], it is the evaluator's opinion that her DUI incident was an isolated event and is not in fact a problematic area of concern for her."
The trial court held its final hearing on Father's request to change custody on August 27, 2019, almost a year and a half after the FCS counselor's report was prepared and filed. Father called a single witness—mother's ex-boyfriend and the father of her second child, J. Although the ex-boyfriend had been arrested and charged with multiple counts related to a domestic violence incident in which Mother was the victim, and despite the fact that he ultimately pled guilty to one count of corporal injury resulting in a traumatic condition in that case (Pen. Code, §273.5, subd. (a)), he testified "that [Mother] was the aggressor." The trial court refused to consider the psychological report submitted by Dr. Spanakis after concluding that "it does not comply with the Court's order that [Father] have input in it." There is no indication that FCS counselor Torrinello was present at this hearing.
This hearing also went unreported.
This was the court's description of the ex-boyfriend's testimony from the hearing on Mother's motion to set aside and reconsider its order of August 27, 2019.
The trial court ultimately concluded "that it is in the child's best interest to switch primary custody to Father and grant the move away back to San Diego." On the record, the court made a number of "findings and orders and addresse[d] the La Musga[] factors." (Italics added.) In going over the "reason for the proposed move," the court stated that it had "granted mother's move away to Arizona in 2017." The court noted that Mother's reason for the move was "to attend Arizona State University to obtain [a] masters and to be closer to family" but "she did not enroll in school there contrary to what she presented to the Court in 2017."
As noted previously, the LaMusga court set forth a list of multiple factors that a court should consider when deciding whether to modify a custody order when a custodial parent requests to change the residence of a child, including "the child[ ]'s interest in stability and continuity in the custodial arrangement; the distance of the move; the age of the child[ ]; the child[ ]'s relationship with both parents; the relationship between the parents including, but not limited to, their ability to communicate and cooperate effectively and their willingness to put the interests of the child[ ] above their individual interests; the wishes of the child[ ] if [the child is] mature enough for such an inquiry to be appropriate; the reasons for the proposed move; and the extent to which the parents currently are sharing custody." (LaMusga, supra, 32 Cal.4th at p. 1101.)
The court identified Father's reasons for requesting a change in custody and a move to San Diego as "mother's interference with his parenting time" and his "concerns about mother's substance and mental health issues."
The court then went through a number of factors discussed in LaMusga. The court noted that "[b]oth [parties] allege abuse history and point to the other as the aggressor," and that father has no "[s]ubstance [a]buse" issue, but that Mother "has issues with alcohol and currently has a pending criminal DUI in Arizona." With respect to the "[d]etriment caused by the move," the court stated only, "[d]etriment of being a far distance from one parent." As to the "[i]mpact of the move on child," the court offered only the following finding: "Minimal impact considering his age."
With respect to "[f]acilitation of contact by each party," the court stated, "Mother started cooperating with father once court hearings were pending." The court made no statements or findings with respect to Father's prior conduct bearing on the parties' failures to successfully execute Father's visitation with B.E.-R., father's facilitation of contact with Mother while the child was in his care, or the expectation of his future facilitation of contact between Mother and B.E.-R.
As to "[c]hild's relationship with both parents," the court stated merely, "The child has a good relationship with both parents." The court found that the "[r]elationship between the parents" was "[p]oor." The court indicated that the child "is bonded to both parents." As to "[e]ducational guidance," the court stated, "Child has numerous school tardies while in mother's care but is doing well academically."
Regarding the "[c]hild's health and education needs," the court said the following: "Mother has primary responsibility but father is capable of providing both education and health needs. Father states child's dental hygiene is poor when he is with the mother so father works on getting child's dental issues taken care of when he is in father's care." The court identified no "special needs" of the child, and found that as far as "[e]xtra-curricular activities" go, the child engaged in "[s]wimming with father and martial arts with mother."
The FCS report detailed an instance in September 2016 when Mother sought to have the child's cavity filled, but Father wanted a second opinion "because he did not want him to get the numbing shots which the parents have to pay for." According to Mother, Father told her that "he could not afford to pay half of the child's dental bills," and that "therefore the [child's] cavity ha[d] still not been filled." In addition, the FCS report relayed that Mother indicated that Father was unwilling to pay his half of certain of the child's medical bills because Father "does not believe the child needed an EEG, EKG and ultrasound which were ordered by his medical providers." The child had apparently been diagnosed with "four identified issues with his cardiac function," and had been referred to "the Children's Hospital in Phoenix, Arizona."
With respect to "[e]xtended family," the court noted that "Mother has family in Arizona and San Diego," while "Father has family in Texas." The court found that "[t]he child has friends in Arizona and is young enough to make friends in San Diego." As to the "[c]hild's particular sports or academic activities within a school or community," the court stated, "Father has put the child in swimming lessons here and can expose him to additional activities. Mother has the child enrolled in martial arts as well as sports and art in Arizona." With respect to "[d]estination stability," the court stated that "Mother has moved 5 times in 6 years, however, she indicates that she plans to stay in her current residence. Father is stable remained in San Diego [sic] and has a stable job."
Although Mother had indicated in her move-away request that the child's paternal grandfather lived approximately two hours from Phoenix, the record does not further disclose whether this paternal relative no longer lived in Arizona or whether the court overlooked this paternal relative in stating where the parties' families lived.
The record does not support this finding, in that Mother had been in the Arizona for more than two years at the time the court entered this order, and as of August 1, 2019, approximately a month before the court issued this order, Mother attested that she had been living in the same residence since moving to Arizona.
Finally, the court indicated that the child's "[w]ishes" were "[n]ot applicable," presumably because of the child's age.
The court listed the following factors but expressly stated with respect to each of these factors that the court was "[n]ot address[ing]" them: (1) "[n]ature of child's existing contact with both parents"; (2) the parents' "ability to communicate and cooperate"; (3) the parents' "willingness to put the interests of the [c]hild above their individual interests"; (4) "[m]edical involvement of the parents"; (5) "[d]isciplinary guidance"; and (6) the "[c]hild's community ties."
After addressing the above factors (or specifically stating that some were "[n]ot addressed"), the court stated the following:
"Mother presents very well, she is believable as she testifies on her behalf, however, there is another side to her that she is able to disguise in court. The Court has received evidence that mother engages in violent conduct with third parties, has issues of alcohol abuse and has intentionally lied on prior occasions and withheld her address from the father. Mother currently has a pending DUI case in Arizona.
"This Court ordered a specific comprehensive psychological evaluation on 10/18/19 and then again on 3/11/19 that was not completed pursuant to the Court's order. Mother elected to get her own evaluation with no input from the father.
"Mother has shown an inability to co-parent. She did not provide her address to father. The FCS recommendation had many concerns regarding the child being in mother's primary care. The Court also has concerns regarding the child being in mother' primary care and father can provide more stability and a safer environment."
The court then stated: "Considering what is in the best interest of the child and the La Musga factors, the Court finds that it is in the child's best interest to switch primary custody to father and grant the move away back to San Diego. The parties shall have joint legal custody." (Italics added.)
The court set a "[r]eview [h]earing for 11/18/19 . . . to address the balance of the holiday schedule and mother's visitation time in Arizona."
The court did not address the FCS counselor's recommendations that the parties participate in a high-conflict co-parenting program, that minor's counsel be appointed, that the child be provided counseling to help him adjust, or that the time required to respond to messages in Talking Parents be shortened from 72 hours to 48 hours. G. Proceedings after the court's order changing primary physical custody to Father
On September 20, 2019, Mother's attorney served a proposed Final Order After Hearing on Father and sent the proposed order to the court for entry. However, it appears that the court did not receive the document or failed to enter it as a formal order after hearing.
As of October 7, 2019, Mother substituted attorney Sondra Sutherland in for her previous attorney, Erica Bloom.
On October 10, 2019, the trial court entered formal Findings and Order After Hearing in which it reiterated the findings and orders contained in the court's August 27 minutes. On that same day, Mother filed a request for order seeking to "Correct/Reconsider/Set-Aside 8/27/19 Order." A hearing on Mother's motion was set for December 30, 2019.
The form mistakenly identifies the hearing date as "12-30-17."
Mother appeared ex parte on October 30, 2019, to discuss whether the November 18, 2019 "review hearing" would affect the finality of the court's August 27, 2019 order changing custody, as well as the possible impact of the "review hearing" on the automatic stay of the court's order. At that time, Father agreed that the child could move at the end of the year, so that he would finish school in Phoenix in December and begin school in San Diego in January.
Prior to the November 18, 2019 "review hearing," Mother filed two sets of documents. First, Mother filed a document designating FCS counselor Torrinello as a witness to testify at the November 18, 2019 hearing—the final hearing related to Father's request for order. Second, Mother filed a request for judicial notice, seeking judicial notice of certain documents from the criminal domestic violence cases against Father and mother's ex-boyfriend who had testified for Father, as well as the documents evidencing the dismissal of "DV requests by [Father]" that she contended demonstrated "no finding of DV by [Mother]."
Mother also subpoenaed Torrinello to testify on the date of the hearing.
The court conducted the "review hearing" on November 18, 2019. Despite Mother's subpoena, the FCS counselor failed to appear. Mother's attorney noted that the FCS report was inconsistent with the attorney's experience with FCS reports involving move-away requests in that the reports usually address "things like continuity[,] and stability is the number-one factor." When Mother's attorney sought a ruling from the court on her request to cross-examine the FCS counselor, the court denied the request, stating, "I didn't get a notice to take testimony today" and asserting that "[i]t's [i.e., the FCS report] already been litigated." The court also ignored Mother's attorney's request that the parties return to FCS for another evaluation, given that a year and half had passed since the original FCS report had been completed. In conclusion, the court restated the custody order that it had issued in August 2019, and added provisions for Mother to have visitation with the child, essentially reversing the provisions that had applied to Father and applying them instead to Mother. Pursuant to the order, B.E.-R. was to move with Father to San Diego on December 31, 2019. In its order, the court mentioned that "[t]he move away from San Diego to Arizona was granted in 2017[] and mother's reason for the move was that she was starting school at Arizona State University to obtain her master's degree. Contrary to this representation, although mother and child moved to Arizona, mother never attended Arizona State University." The court also stated that the "[c]ourt finds that mother is very cooperative with the parenting plan when in court and during pendency of the court hearings, however, there are concerns about mother's conduct when court proceedings have concluded which impacts the best interest of the child." The court also faulted Mother for using the services of an evaluator that was not one of the three that Father had suggested.
The record in this case includes a file-stamped copy of Mother's request to have the FCS counselor testify as a witness. It is unclear why the trial court did not believe that the court had received such a notice.
The court granted Mother eight weeks of continuous time with the child during the summer, and clarified certain other holiday periods of custody between the parents.
The court incorrectly stated that the move-away order permitted Mother to move the child from San Diego to Arizona; in fact, Mother and the child had been living in Placer County when Mother requested the move-away order.
Mother's attorney again subpoenaed the FCS counselor, and designated her as a witness to testify at the December 30, 2019 hearing on Mother's request for order to "Correct/Reconsider/Set-Aside 8/27/19 Order." The Office of the Court Counsel objected to the subpoena, indicating that FCS counselor Torrinello was scheduled to be on leave from December 26-31, 2019.
On December 23, 2019, Mother filed the declaration of Dr. Carol Mellen—the evaluator Father had wanted Mother to use for her psychological evaluation. In this declaration, Dr. Mellen explained that her assistant had misinformed Mother regarding the cost of the evaluation and what would be required in order to proceed, which caused Mother to believe that an evaluation with Dr. Mellen was not feasible. Dr. Mellen further indicated that she would be willing to evaluate Mother if Mother were able to get an "extension" from the court. Mother also filed a supplemental declaration in which Mother attempted to clarify portions of the record that she felt the FCS report and the court had not fully acknowledged, including her participation in the "Safe at Home" program for address confidentiality, as well as all of the problems with the evaluators that Father had suggested, including the fact that one of them "d[id]n't do psychological evaluations," another had no available correct contact information, and as to the third, Dr. Mellen, Mother had tried to coordinate with but had been provided incorrect information. Mother indicated that she had attempted to obtain additional suggestions from Father, but that he had not provided her with any additional names.
The court held a hearing on Mother's request for order on December 30, 2019. The court agreed that throughout the pendency of the proceeding on Father's request for order, the court had erroneously repeated the finding that California was the child's home state, but nevertheless concluded that the court "has continuing jurisdiction." The court stated that "Mother presented well, then interfered with father's parenting time. Father repeatedly requested help from the court for relief and ultimately the move-away was heard. The court had serious concerns regarding the mother's ability to parent the child." The court further indicated, incorrectly, that "[t]here was no request to call witnesses." The court mentioned Mother's arrest for DUI, and then discussed the parties' history of domestic violence. The court stated that "Mother was arrested twice for DV" and added that "Father ple[ ]d guilty to PC 415." The court found that Father "completed the 52 week DV program" but that "Mother ha[d] not completed the 52 week DV program." The court concluded that it would "not revers[e] the move-away order."
It is not clear why the court suggested that Mother should have, but did not complete, a 52-week domestic violence program. There was nothing in the record suggesting that Mother was ever ordered to do so.
Mother filed a notice of appeal on December 30, 2019. On January 3, 2020, Mother filed a petition for a writ of supersedeas and a stay of the trial court's order changing custody, which this court summarily denied. Father has not filed a brief or appeared in this appeal.
III.
DISCUSSION
A. The trial court did not deny Mother due process in its determination that it possessed jurisdiction to decide the matter and did not err in exercising jurisdiction
Mother contends that the trial court failed to provide her with due process with respect to its determination that it possessed jurisdiction to decide Father's motion. Specifically, Mother asserts that "[b]efore a court decides a [Uniform Child Custody Jurisdiction and Enforcement Act] UCCJEA jurisdictional contest, it must afford the parties a full and fair evidentiary hearing, with adequate notice to prepare to present his or her claims for, or against, the exercise of jurisdiction," citing Cole v. Superior Court (1985) 173 Cal.App.3d 265, 271-272 (Cole) for this contention. Mother further argues that the court should have undertaken an analysis of the jurisdictional question, and that if the court had done so, it would have determined that it no longer had jurisdiction to modify its prior custody order because an Arizona court had jurisdiction over the matter. Mother argues, in the alternative, that even if the California court had jurisdiction to decide the matter, it should have declined to exercise its jurisdiction because an Arizona court was a more appropriate forum to hear the matter. We conclude that under the UCCJEA, the trial court had exclusive continuing jurisdiction over this custody matter and that if Mother had wanted the court to determine otherwise, it was incumbent on her to request that the court consider whether to decline its jurisdiction. The court is not required to consider the issue sua sponte.
"The UCCJEA is a model law that 'arose out of a conference of states in an attempt to deal with the problems of competing jurisdictions entering conflicting interstate child custody orders, forum shopping, and the drawn out and complex child custody legal proceedings often encountered by parties where multiple states are involved.' [Citations.]" (In re J.W. (2020) 53 Cal.App.5th 347, 354-355.) The UCCJEA is designed to avoid jurisdictional conflicts between states and relitigation of custody decisions, promote cooperation between states, and facilitate enforcement of another state's custody decrees. (In re Gloria A. (2013) 213 Cal.App.4th 476, 482.)
California adopted the UCCJEA as of January 1, 2000, and it is codified in Family Code section 3400 et seq. (See In re J.W., supra, 53 Cal.App.5th at p. 355.)
Further statutory references are to the Family Code unless otherwise indicated.
"The UCCJEA is the exclusive method in California to determine the proper forum in child custody proceedings involving other jurisdictions." (In re Jaheim B. (2008) 169 Cal.App.4th 1343, 1348; § 3421, subd. (b) [section 3421, subdivision (a) "is the exclusive jurisdictional basis for making a child custody determination by a court of this state"].) However, UCCJEA jurisdiction is not considered "fundamental jurisdiction," in that it may be forfeited. (In re J.W., supra, 53 Cal.App.5th at pp. 365-367.)
The UCCJEA specifies the circumstances under which a California court "has jurisdiction to make an initial child custody determination" (§ 3421, subd. (a)), and this depends on the home state of the child. " '[T]he UCCJEA takes a strict "first in time" approach to jurisdiction.' [Citation.] The rule, subject to [certain limited] exceptions . . . , is that once the court of an 'appropriate state'—one having jurisdiction under section 3421, subdivision (a)—has made a child custody determination, 'that court obtains "exclusive, continuing jurisdiction . . . ." ' [Citation.]" (In re E.W. (2019) 37 Cal.App.5th 1167, 1171; see In re Marriage of Fernandez-Abin & Sanchez (2011) 191 Cal.App.4th 1015, 1040 ["With certain exceptions . . . 'once the court of an appropriate state [citation] has made a "child custody determination," that court obtains "exclusive, continuing jurisdiction" ' "].)
Indeed, under the UCCJEA, a California court that has already made a custody determination consistent with section 3421 "has exclusive, continuing jurisdiction over the determination" until either of two delineated circumstances occur: "(1) A court of this state determines that neither the child, nor the child and one parent, nor the child and a person acting as a parent have a significant connection with this state and that substantial evidence is no longer available in this state concerning the child's care, protection, training, and personal relationships. [¶] (2) A court of this state or a court of another state determines that the child, the child's parents, and any person acting as a parent do not presently reside in this state." (§ 3422, subd. (a)(1) & (2).)
"[A] judicial determination that all parties no longer reside in the decree state [or a determination that the child and one parent no longer have a significant connection to the state and substantial evidence is no longer available in the state] is required to divest that state of continuing, exclusive jurisdiction. Indeed, the language of the statute would seem to admit of no other construction. It is not the parties' departure itself that terminates the decree state's exclusive, continuing jurisdiction. Rather, it is when a 'court . . . determines' that all parties have ceased residing there [or the child and one parent no longer have a significant connection to the state and substantial evidence is no longer available in the state] that jurisdiction is lost. (§ 3422, subd. (a)(2).) Without such a finding . . . , the statutory condition terminating jurisdiction simply has not occurred. [¶] . . . [¶] The requirement of a judicial determination under the UCCJEA is more than a procedural technicality. It reflects a deliberate effort to provide a clear end-point to the decree state's jurisdiction, to prevent courts from treading on one another's jurisdiction, and to ensure that custody orders will remain fully enforceable until a court determines they are not. . . . [¶] Our conclusion is supported by the legislative history of section 3422. The legislature said the UCCJEA 'would prohibit modification of a custody decision made pursuant to this uniform act by the courts of another state in the absence of specified determinations.' (Legis. Counsel's Dig., Sen. Bill No. 668 (1999-2000 Reg. Sess.) Stats. 1999, ch. 867, italics added.)" (In re Marriage of Nurie (2009) 176 Cal.App.4th 478, 500-502.)
Thus, the statutory framework makes it clear that once a California court has determined that it has jurisdiction under the UCCJEA to enter an initial custody order and such an order has been issued, that court retains continuing exclusive jurisdiction over the case for all custody proceedings thereafter, until a court makes a determination that the exclusive jurisdiction of the California court has ended due to the existence of one of the two circumstances set forth in the statute.
Mother does not dispute that a California court entered the May 24, 2017 custody order that permitted Mother to move the child's residence to Arizona and that the court's custody determination with respect to Father's request to modify the order was not the "initial child custody determination" (§ 3421, subd. (a).) Given that the California court had previously made an initial custody order in this matter, under the UCCJEA, the California court possessed continuing exclusive jurisdiction to decide further custody matters in the case without the need for a full jurisdictional hearing. There is nothing in the statutory scheme that indicates that parties are entitled to a full jurisdictional hearing at any point after a court has determined that it has jurisdiction to make an initial child custody determination pursuant to section 3421.
Because the trial court possessed continuing exclusive jurisdiction to modify its prior order pursuant to section 3422, Mother's reliance on Cole, supra, 173 Cal.App.3d at pages 271-272 for her contention that she was entitled to "a full and fair evidentiary hearing" is misplaced. Cole, not surprisingly, involved an initial custody determination—not a request to modify an order that had previously been entered by a California court. Thus, the trial court in Cole was determining, in the first instance, whether it had jurisdiction over the matter. (Id. at pp. 269-270.) Cole does not purport to stand for, or even suggest, that a party is entitled to a new jurisdictional hearing for each modification request after a court has made the initial jurisdiction determination and entered a custody order, or that a party is entitled to revisit the jurisdictional question, and receive a hearing on that question, without first raising the question of jurisdiction to the court.
Further, there is nothing in the statutory framework that suggests that parties are entitled to a sua sponte jurisdictional hearing at any point in the proceedings after the initial determination of jurisdiction has been determined. Rather, as noted, where a court has continuing exclusive jurisdiction as a matter of law under the UCCJEA, it is incumbent on a party who believes that the court has lost exclusive jurisdiction over the matter to request that the court make a determination as to whether one of the two circumstances that would cause the court to lose exclusive jurisdiction has occurred. Thus, if Mother believed that the court should have determined that it had lost exclusive jurisdiction over the matter due to the existence of one of these circumstances, it was incumbent on her to move the court to address the issue.
In briefing on appeal, Mother asserts that "both parties raised a question regarding the existence or exercise of jurisdiction by the San Diego court." However, the record does not support her assertion. Although Mother filed documents in an Arizona court in which she requested that an Arizona court assume jurisdiction over the matter, Mother never filed anything related to jurisdiction under the UCCJEA in a California superior court, nor did she otherwise formally raise a question about the California court's jurisdiction over the matter. In other words, Mother never moved the trial court in the underlying proceedings to make a finding that it no longer possessed continuing exclusive jurisdiction under section 3422.
The fact that Mother questioned the FCS counselor about why the parties were participating in an FCS conference in California is not sufficient to place the court on notice that Mother was questioning the court's continuing exclusive jurisdiction.
Rather, the record demonstrates that Father filed a document, the day before the court's first hearing on Father's request to modify the custody order, in which he appeared to seek to have the court retain jurisdiction over the matter, apparently in response to Mother's filing in an Arizona court. However, it is clear that Father was not required to file such a request, given the California court's continuing exclusive jurisdiction to decide his request for order.
Given that Mother never raised the question whether the trial court should have made a determination that it had lost continuing exclusive jurisdiction under section 3422 or that it should decline to exercise jurisdiction under section 3427, she cannot fault the trial court for failing to provide her a hearing on either of these matters, and she has forfeited her claims going to the merits of these questions by failing to raise them in that court. We therefore reject Mother's contentions that (1) the trial court denied her due process with respect to the jurisdictional question, (2) the court should have found that it had lost jurisdiction over the child and custody matter, and (3) the court should have declined to exercise jurisdiction in favor of an Arizona court, even if it found that it possessed jurisdiction. B. The trial court failed to apply the "changed circumstances" standard to Father's request to award him sole legal and physical custody of the child
Mother asserts that the trial court erred by applying an incorrect standard to Father's request to modify the custody order. Specifically, she contends that the trial court "applied the wrong legal standard (best interests vs. changed circumstances) in modifying its prior judicial determination, resulting in a prejudicial seachange [sic] in custody" (underscoring and capitalization omitted). Our review of the court's order supports Mother's contention that the trial court failed to apply the "changed circumstances" standard, and as a result, failed to acknowledge or weigh the child's interest in the continuity and stability of the existing custody arrangement, in addressing Father's request to change custody.
The record further demonstrates that the court's error mirrored the FCS counselor's report, which also failed to address the "changed circumstances" standard and failed to weigh the child's interest in the stability of maintaining the final custody arrangement in its analysis and recommendation.
"Under California's statutory scheme governing child custody and visitation determinations, the overarching concern is the best interest of the child." (Montenegro v. Diaz (2001) 26 Cal.4th 249, 255 (Montenegro).) In determining the best interest of the child, the court must consider "all relevant factors, including the child's health, safety, and welfare, any history of abuse by one parent against any child or the other parent, and the nature and amount of the child's contact with the parents." (In re Marriage of Brown & Yana (2006) 37 Cal.4th 947, 955-956 (Brown).) However, "[o]nce the trial court has entered a final or permanent custody order reflecting that a particular custodial arrangement is in the best interest of the child, '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' that custody arrangement. [Citation.] In recognition of this policy concern, we have articulated a variation on the best interest standard, known as the changed circumstance rule, that the trial court must apply when a parent seeks modification of a final judicial custody determination." (Id. at p. 956, italics added; accord, Montenegro, supra, at p. 256 [Under the changed circumstance rule, the court "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" (italics added)]; In re Marriage of McKean (2019) 41 Cal.App.5th 1083, 1089-1090 (McKean) [family court's modification of custody order from joint to sole custody was abuse of discretion because of lack of evidence of changed circumstances].)
Pursuant to the changed circumstances standard, the parent seeking a change to a final custody order must show not only the existence of substantial changed circumstances, but also that changing the custody order as requested will not detrimentally affect the child's interest in continuity and stability, such that the change would be in the child's best interests. (In re Marriage of C.T. & R.B. (2019) 33 Cal.App.5th 87, 103 (C.T.).) The party seeking a change to become the primary custodial parent must make a "substantial showing" before removal of the child from a custodial parent would be appropriate. (Brown, supra, 37 Cal.4th at p. 960, italics added; see Speelman v. Superior Court (1983) 152 Cal.App.3d 124, 129 (Speelman) [" '[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," and "courts are reluctant to order a change of custody and will not do so except for imperative reasons" (italics added)].) This is because " '[w]hen custody continues over a significant period, the child's need for continuity and stability assumes an increasingly important role.' " (Jane J. v. Superior Court (2015) 237 Cal.App.4th 894, 903 (Jane J.), quoting Burchard v. Garay (1986) 42 Cal.3d 531, 538 (Burchard).)
Moreover, where a parent requests a move-away order, the question before the court involves " 'one of the most serious decisions a family law court is required to make,' and should not be made 'in haste.' " (In re Marriage of Seagondollar (2006) 139 Cal.App.4th 1116, 1119.) Where it is a noncustodial parent who is seeking not only to change the custody arrangement to become the primary custodial parent, but is concomitantly seeking an order permitting the child to be moved to a different state, the noncustodial parent bears a different burden on the "move-away" issue than does a custodial parent. (See Jane J., supra, 237 Cal.App.4th at pp. 902-905.) In Jane J., the appellate court granted a petition for a preemptory writ of mandate directing the trial court to vacate its order changing primary custody in favor of a noncustodial parent and permitting that parent to move the children to another state. (Id. at p. 910.) The Jane J. court noted that the noncustodial parent bore a burden of proof different from that of a custodial parent seeking a move-away order, explaining: "Because Father is not the custodial parent, he does not have a presumptive right to relocate the children to another region of the country simply because he acts in good faith and for a legitimate reason. Instead, as the noncustodial parent who seeks a change in custody involving an out-of-state move away, Father bears additional burdens of persuasion as part of the changed circumstances standard." (Id. at p. 904, italics added.)
Although the typical standard of appellate review of custody and visitation orders "is the deferential abuse of discretion test" (In re Marriage of Burgess (1996) 13 Cal.4th 25, 32 (Burgess)), the question whether the court applied "the appropriate legal standard . . . in ruling on [a parent's] requests raises a question of law, which we review de novo." (Enrique M. v. Angelina V. (2004) 121 Cal.App.4th 1371, 1378.) Moreover, with respect to the final conclusions of the trial court, appellate courts are "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." (Speelman, supra, 152 Cal.App.3d at p. 129 [family court erred in changing final custody order to grant mother sole custody based on child's best interest absent changed circumstances]; accord, Christina L. v. Chauncey B. (2014) 229 Cal.App.4th 731, 738-739 (Christina L.) [reversing family court's modification of custody order to give father joint custody, finding father's desire for children to spend time with half-sister who was now living with him was not substantial change in circumstances, and father could not prove allegations of mother's neglect].) This is because " '[w]hen custody continues over a significant period, the child's need for continuity and stability assumes an increasingly important role.' [Citation.] This principle avoids an endless round of emotionally and financially draining litigation in the family law courts. [Citation.]" (Burchard, supra, 42 Cal.3d at p. 538.)
Other courts have concluded that the abuse of discretion standard still applies in such circumstances. However, even if the abuse of discretion standard were to be applied, it is clear that a trial court abuses its discretion when the court applies improper criteria or makes incorrect legal assumptions, such as applying an incorrect legal standard to the issue before it. (See Mark T. v. Jamie Z. (2011) 194 Cal.App.4th 1115, 1124-1125 (Mark T.) [reversing postjudgment order regarding move-away request]; Jane J., supra, 237 Cal.App.4th at p. 901 [issuing writ of supersedeas directing trial court to vacate order in which court had changed custody without applying appropriate legal standards].)
Neither party disputes that this case involves a request to modify a final custody order, in that Father sought to modify the May 24, 2017 order that permitted Mother to move with the child to Phoenix, Arizona. In addition, this case involves a noncustodial parent seeking primary custody of the child, which would require moving the child from Arizona to San Diego. Given these circumstances, the trial court was required to apply the changed circumstances standard to Father's request, such that Father would have the burden to demonstrate that a significant change of circumstances had occurred, warranting the revisiting of the final custody order. If he met that burden, he would then also be required to make a significant showing that the proposed change and concomitant move-away order would not detrimentally affect the child's interest in continuity and stability, such that the change would be in the child's best interests. (See C.T., supra, 33 Cal.App.5th at p. 103; see also Jane J., supra, 237 Cal.App.4th at pp. 902-906.)
Our review of the record demonstrates that the trial court failed to apply the changed circumstances standard. There is not a single reference in any part of the record in which the court mentions the phrase "changed circumstances" or makes a finding that Father demonstrated the requisite significant changed circumstances that would warrant a reversal of the then-existing permanent custody order. Not only did the court fail to address or even mention the relevant standard, but instead, the court specifically stated that it was applying the general "best interest" standard. The court thus expressly applied the incorrect standard to Father's request.
The court's reference to the LaMusga factors does not demonstrate that the court applied the appropriate legal standard for assessing Father's request to change custody in this circumstance. While a consideration of the LaMusga move-away factors represents one aspect of the court's duty in addressing a noncustodial parent's burdens with respect to that parent's request to both change the existing custody arrangement and move the child away from the custodial parent, such consideration represents only part of the analysis. (See Jane J., supra, 237 Cal.App.4th at pp. 902-904.) This is because LaMusga involved a situation in which the custodial parent was seeking a move-away order, and the noncustodial parent, in response, requested a modification to award him primary custody of the children in order to keep the children in their current county of residence. (LaMusga, supra, 32 Cal.4th at p. 1078.) The Supreme Court required the noncustodial parent to demonstrate detriment to the children from the planned move before a change in custody would be ordered. (Id. at p. 1085.)
Although not expressly discussed in LaMusga, it is apparent that when a primary custodial parent (or joint custodial parent) seeks a move-away order, the proposed move by that parent and affiliated request to change the child's residence, by its very existence, unavoidably triggers the need to modify the existing custody order. Whatever visitation schedule is delineated in a custody order that was entered at a time when both parents were living in the same general geographic area will inevitably be affected by one parent's move outside of that geographical area. The same is not true, however, in a case where, as here, the primary custodial parent already lives in a different geographic location from the noncustodial parent, and the court is considering a request from the noncustodial parent to relocate the child's residence away from the custodial parent's residence. In that situation, it is possible for the court to maintain the existing order by denying the noncustodial parent's request. Thus, in this case, in contrast to the situation in LaMusga, it is Father, as the noncustodial parent, who seeks to upend the status quo by compelling both a change in custody and a move-away order. As the noncustodial parent making this request, Father had an "initial burden . . . to address the potential disruptive impact of an out-of-state move-away, including its effect on the child[ ]'s existing educational, physical, emotional and familial relationships." (Jane J., supra, 237 Cal.App.4th at p. 901.) This is because where a noncustodial parent is seeking to change custody and move the child away, that parent's "standard of proof to impose what amounts to a double-barreled change 'is admittedly very high' "; the parent "bears additional burdens of persuasion as part of the changed circumstances standard. [Citation.]" (Id. at pp. 904-905.) We therefore reject any suggestion that the trial court's reference to LaMusga indicated that the court applied the correct standard in considering Father's request to be awarded primary physical custody and move the child to San Diego.
This is necessarily so because in response to a primary or joint custodial parent's request to move the residence of the child, the trial court must either (a) allow the child to move, which would require a change to the current custody order to account for the distance that will result from that move, or (b) not allow the child to move, which would also require a change to the current custody order by changing the custodial arrangement to provide that the formerly noncustodial parent (or formerly joint custodial parent) become the primary custodial parent; the court does not have the option of ordering that the existing custody order remain in place. (See Mark T., supra, 194 Cal.App.4th at p. 1128 [court may not assume that preserving status quo parenting arrangement is an option in situation where parents share joint custody and one parent seeks a move-away order]; see also In re Marriage of Whealon (1997) 53 Cal.App.4th 132, 142 [in a move-away case where parents share joint physical custody, the status quo custody arrangement will necessarily be disrupted by one party's proposed move].)
Further, we conclude that the court's failure in this respect was prejudicial. It is clear from the record that the court failed to consider the threshold issue of the existence of a significant change of circumstance (or circumstances) such that a change in the permanent custody order entered in May 2017 might be warranted, and that the court instead purported to apply the best interests standard to Father's motion for a change of custody. Not only did the court fail to identify what changed circumstance or circumstances it believed had occurred since the entry of the existing permanent custody order, but the court made no determination that any such material circumstances were " ' " ' "of a kind to render it essential or expedient for the welfare of the child that there be a change." ' " ' " (C.T., supra, 33 Cal.App.5th at p. 102.) In the process, the court failed to determine whether Father had met his burden to show that changing the custody order as requested would not detrimentally affect the child's interest in continuity and stability (ibid.), given the " 'important role' " that " 'the child's need for continuity and stability assumes' " where custody with one parent has continued over a significant period of time. (Jane J., supra, 237 Cal.App.4th at p. 903.) Indeed, the trial court's order indicates that the court failed to sufficiently consider the main reason for the changed circumstances rule—i.e., the child's interest in stability and continuity of the custodial relationship (see Christina L., supra, 229 Cal.App.4th at p. 738 [" ' "It is settled that to justify ordering a change in custody there must generally be a persuasive showing of changed circumstances affecting the child. [Citation.] And that 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: ' . . . that it is desirable that there be an end of litigation and undesirable to change the child's established mode of living.' [Citation.]" ' " (italics added)].) "[T]he 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." (Burgess, supra, 13 Cal.4th at pp. 32-33, italics added.) Further, "[w]hen custody continues over a significant period, the child's need for continuity and stability assumes an increasingly important role." (Burchard, supra, 42 Cal.3d at p. 538.) Yet the court not only failed to identify what, if anything, had changed after entry of the existing order that warranted even revisiting the custodial arrangement, but the court at no point acknowledged the fact that Mother had been the child's custodial parent and primary caregiver for his entire life, or that Mother and the child had not lived in the same city as Father for most of the child's life, such that Father had never had a significant portion of custodial time with the child relative to Mother. In addition, at the time the court ordered this change in custody, the child was seven years old and had been living in the same place in Arizona for 2.5 years, i.e., more than a quarter of his life. The child had attended the same elementary school during that time, from kindergarten through second grade, made friends in the community, had family nearby, and participated in several extracurricular activities. All objective measures of B.E.-R.'s academic performance in school demonstrated that he was performing at high levels and was well-adjusted, with no sign of emotional or developmental issues. The court's order barely touches on some of these things (family and friends), and fails entirely to acknowledge others (child already living away from father, mother as primary caregiver for child's entire life, length of time at school, performance in school, lack of emotional and developmental issues). In fact, rather than addressing the enormous disruption that a change of primary custody and a move-away order would cause in this child's life, the court's only comment about the "[i]mpact of the move on [the] child" was that it would have a "[m]inimal impact considering his age." This demonstrates that the court failed to give adequate consideration to any detriment that was likely to result from the disruption of this child's stability and continuity of care. The court's order frankly reads more like an indictment of Mother, and a punishment for her perceived failures to follow the court's orders, than it does a document detailing the possible impact of this potentially life-altering order on a little boy. At bottom, the court did not address, let alone weigh and contend with, 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." (Burgess, supra, at pp. 32-33.)
This is not to say that the court could not have found the existence of changed circumstances that would have allowed the court to proceed to consider whether Father, as the noncustodial parent, had satisfied "the heavy burden of establishing that [the child] would not sustain detriment by the proposed move, and that moving [the child] out of [Mother's] state would serve [his] best interests." (C.T., supra, 33 Cal.App.5th at p. 105.) However, the record does not demonstrate that the court made the requisite findings or applied the correct standards.
We therefore conclude that we must reverse the court's order. (See Jane J., supra, 237 Cal.App.4th at p. 910 [issuing preemptory writ ordering trial court to vacate its order changing custody to noncustodial parent and granting move-away order where court failed to apply appropriate standards to noncustodial parent's request]; C.T., supra, 33 Cal.App.5th at pp. 107, 112 [reversing court order granting primary custody of 12 year old to out-of-state noncustodial parent and ordering child to relocate to the father's home state where trial court failed to apply the correct standard, such that the father had not met heavy burden to demonstrate move would not detrimentally affect child's continuity and stability of custodial relationship].) C. The trial court on remand must consider all relevant factors, the complete history of the custody proceedings, and Father's role in the parental conflict
Because the record demonstrates that the trial court failed to apply the appropriate standard for analyzing Father's request to change custody and failed to hold Father to his burden to demonstrate that the child would not suffer detriment from the proposed change in custody, such that reversal of the court's order is appropriate, we believe it worthwhile to address some of Mother's other contentions on appeal and highlight some areas of concern based on the record before us.
First, it appears that the trial court failed to consider and weigh the existence of a sibling relationship that would be significantly impaired by a change in custody requiring the child to be moved out of Arizona. California's public policy supports the concept that " 'the sibling bond should be preserved whenever possible.' " (McKean, supra, 41 Cal.App.5th at p. 1091, quoting In re Marriage of Heath (2004) 122 Cal.App.4th 444, 449-450.) Therefore, a "trial court must consider [minor siblings'] interest in having a meaningful opportunity to share each other's lives and the potential detriment to them from being separated" when making custody orders. (McKean, supra, at p. 1091; see Heath, supra, at pp. 449-450.) "[T]he bond between siblings should not be severed without a careful analysis of the actual impact of one child's condition on the other child, as well as the impact of separation on both children." (Id. at pp. 450-451.) Despite the public policy of the state to preserve the bond between siblings whenever possible, the court's order did not refer to B.E.-R.'s half-sibling, J., and did not indicate whether the court had considered the children's interest in "having a meaningful opportunity to share each other's lives" (McKean, supra, at p. 1091) or how that interest might be affected by changing custody of B.E.-R. to Father and permitting the Father to move B.E.-R. to San Diego.
Although the court at a subsequent hearing stated that it "did consider . . . the sibling bond, and, of course, the court wants to keep siblings together," the court's order changing custody and granting the move away contains no mention of the sibling relationship.
We are further concerned by the fact that both the FCS counselor and the trial court concluded that Mother failed to demonstrate an ability to co-parent, apparently based largely on the fact that Mother did not share her home address with Father. In the order, the court specifically refers to the fact that Mother "did not provide her address to father" in determining that Mother had "shown an inability to co-parent." Elsewhere in the record, the court similarly negatively referred to Mother as having "withheld her address from the father." The court appears to have placed inappropriate and undue emphasis on Mother's desire to keep her address confidential under the circumstances in this case. Neither the trial court nor the FCS counselor acknowledged the fact that the order under which the parties were operating did not require that custody exchanges take place at Mother's home. In fact, exchanges were to take place either at a childcare provider's premises or at a public location in Yuma, Arizona. Given the absence in the record of any evidence that Father needed Mother's home address for any purpose authorized by the order, any finding that Mother's maintaining a confidential address could have had the presumed negative effect on Father's ability to exercise his parenting time is unsupported by the record.
To the extent that there may be a concern that a parent could not seek police assistance for a welfare check on the child or something similar, we note that California's "Safe at Home" program provides an exception to the confidentiality of a program participant's address if such address is "requested by a law enforcement agency, to the law enforcement agency." (Gov. Code, § 6208.) The corresponding Arizona statutory framework includes a similar provision that allows for an "expedited process for disclosure [of a participant's true address] to be used by a court, clerk of the court, criminal justice official or agency or a probation department . . . ." (Ariz. Rev. Stat. Ann. § 41-167, subd. N.)
Further, we question the propriety of compelling a parent who was the victim of domestic violence in the past to provide her home address to the person who committed the violent conduct against her. California's public policy favors the protection of the confidentiality of home addresses of victims of domestic violence. For example, Family Code section 3429, which is part of the UCCJEA, provides that in the first pleading in a child custody proceeding, each party is to give the names and present addresses of any persons with whom the child has lived for the prior five years. There is an exception, however, which provides that "where there are allegations of domestic violence or child abuse, any addresses of the party alleging violence or abuse and of the child which are unknown to the other party are confidential and may not be disclosed in the pleading or affidavit." (Fam. Code, § 3429, subd. (a).) In addition, California's "Safe at Home" confidential address program protects the confidentiality of names and home addresses of victims of domestic violence, sexual assault, and stalking. (Gov. Code, §§ 6205-6211.) "Under the program, a confidential address (and, if desired, changed name) can be registered, ensuring that state and local agencies will not disclose the victim's location in responding to requests for public records; and a substitute mailing address can be registered for use by public agencies." (Hogoboom & King, Cal. Practice Guide: Family Law (The Rutter Group 2015) ¶ 1:353.) In general, such a program "operates as follows. A victim of domestic violence files an application for a 'substitute' address with the appropriate governmental agency. . . . After the applicant is accepted and certified into the program, the state agent provides a substitute address for the applicant, which she may use for personal purposes, such as employment, health care, or electric bills. The victim's mail is forwarded from that substitute address to her actual address, with the actual address being known only to (and kept confidential by) the Secretary of State." (Kristen M. Driskell, Identity Confidentiality for Women Fleeing Domestic Violence (2009) 20 Hastings Women's L.J. 129, 140, fns. omitted.) It is notable that an individual's qualification for and participation in the "Safe at Home" program in California is not contingent upon the existence of an active restraining order.
Mother repeatedly indicated to the court and to FCS that she was registered under the "Safe at Home" program while living in California, and that she was registered under a corresponding home address confidentiality program in Arizona. Nevertheless, at various times throughout the proceedings, the trial court required both parties to provide their addresses to each other, and at one point, the court specifically ordered Mother to provide her address to Father. We recognize that the timing of some of these orders relative to Mother's participation in the address protection programs is unclear. Nonetheless, in view of Mother's current registration under address protection programs and the history of domestic violence in this matter, including Father's guilty plea to a lesser charge in exchange for completing a 52-week domestic violence class, these ongoing orders appear to be inappropriate and should be revisited. At a minimum, there is no indication in the record that the court fully considered Mother's participation in the address confidentiality programs and whether providing her home address to Father was truly necessary, in concluding that Mother's declining to share her address with Father demonstrated a lack of willingness to "co-parent."
Mother was first ordered to provide her address and phone number to Father in June 2016, by a judge different from the one who handled the move away request. In 2018, Mother stated, "Because of the domestic violence perpetrated by [Father], I have had my address[ ] protected by the Confidential Address Program since 2011. When I moved to Arizona, I again registered my address as confidential." Although Mother provided a copy of her registration in the Arizona program, in August 2017 shortly after her move, we have not been able to locate anything in the record supporting Mother's statement regarding her 2011 registration. These issues can be explored on remand. However, Mother should not be faulted or otherwise disadvantaged in the custody proceeding for failing to provide Father with her address as long as she continues to qualify for participation in these programs.
The record reflects that the trial court questioned Mother "as to her being in the confidentiality program" during a hearing on July 24, 2018, but the questioning was brief (up to one minute) and the substance of the questioning is unknown.
We also note that the trial court and the FCS counselor both appeared to question Mother's statement, in her original request for a move-away order, that she intended to attend a master's program at Arizona State University, because Mother ultimately did not enroll in that program. Both the trial court and the FCS counselor implied that Mother had lied to the court in order to obtain the order permitting Mother to move the child's residence to Phoenix, Arizona. Although neither the FCS counselor nor the court expressly stated so, it appears that they may have believed that Mother's move-away request had been made in bad faith or was made in order to reduce Father's contact with the child.
"[A] finding that a reason for the proposed move constitutes bad faith 'may be relevant' in determining custody arrangements," and a custodial parent acts in bad faith when that parent decides to relocate simply to frustrate the noncustodial parent's contact with the child. (LaMusga, supra, 32 Cal.4th at pp. 1100, 1099.) Further, "[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 . . . ." (Id. at p. 1100.)
However, both the court and FCS counselor failed to acknowledge when raising the question whether Mother had been truthful with the court about the reason for her requested move to Phoenix that Mother's request for a move-away order did not involve a request to move the child from San Diego to an out-of-town location farther from Father. In fact, the court appears to have been under the misimpression that Mother had moved the child away from San Diego to go to Phoenix, stating in its last-filed order in this matter that "[t]he move away from San Diego to Arizona was granted in 2017," and further stating that "Father filed a request to move the child back to San Diego." (Italics added.) This is largely inaccurate. In fact, from the record, it appears that the child may have lived in San Diego for only a brief time as an infant, and it is clear that when Mother requested permission to move the child in 2017, Mother and the child had been living in Placer County, California. In other words, although Mother sought a move-away order from the court, at the time she requested to move to Phoenix, she and the child were living farther away from San Diego, and her request to move to Phoenix served to relocate the child to a city closer to Father. The court's repeated questioning of Mother's motive in seeking the move-away order, and the court's erroneous statements about the move away order, demonstrate that the court was under the misimpression that Mother had sought a move-away order that resulted in taking the child farther away from Father, when this was not the case at all.
Mother's move to Phoenix reduced the drive time between the child and Father by almost half—from between 11 and 12 hours to approximately 6 hours.
In addition, the FCS counselor and the court also failed to acknowledge that Mother's plan to begin a master's program in Phoenix was not the only reason that she provided for seeking to move there; Mother also noted that by moving to Phoenix, she and the child would be closer to family. Mother clearly did have family in the Phoenix area, and there is evidence that the child had a relationship with members of Mother's family there, including three cousins who lived "only five miles away" from the child. Finally, it is unclear from this record why the trial court found Mother's reasons for ultimately not beginning the master's program unconvincing. It was uncontroverted that Father failed to make arrangements to exchange the child on the date that his parenting time with the child for six weeks in the summer, pursuant to the order, was scheduled to begin. He also did not make arrangements to pick up the child on the date on which he believed, incorrectly, his parenting time was set to begin. Mother attested that because Father failed to make these plans, she believed that he was forfeiting his summer time with B.E.-R., and so adjusted her summer schedule to find care for the child. These new plans corresponded with the time when Mother was supposed to attend an orientation at ASU. In addition, Mother learned that she was pregnant with J. just before moving to Phoenix, which she explained also altered her plans to attend school. There is nothing inherently implausible about Mother's explanation for why her education plans changed. Regardless, it remains the case that the court's suggestion that Mother did not actually intend to attend ASU and was somehow using the prospect of a master's program as a ruse to obtain a move-away order does not make sense in light of the fact that Mother was actually moving the child closer to Father.
We also question the trial court's refusal to consider the psychological assessment that Mother provided on the ground that, in the court's view, it was "not completed pursuant to the Court's order" because "Mother elected to get her own evaluation with no input from the father." The trial court's written orders did not unambiguously require that the psychological evaluation include input from Father. Specifically, although the written minute order from the hearing at which the court first ordered Mother to undergo a psychological evaluation stated that "Father is to have input with and be interviewed by the evaluator," the formal Finding and Order After Hearing—the order that the parties received—directed only that "Father shall participate in the evaluation as directed by the a[ss]essor." (Italics added.) At a later hearing, the court reiterated that "the full psychological assessment is to be a comprehensive evaluation with input from father as the assessor deems necessary and appropriate." (Italics added.) Thus, the court left open the possibility that the evaluator might not deem Father's input necessary or appropriate, and, in fact, Mother attested that her evaluator told her that she could not consider Father's input. It seems unreasonable to hold Mother to a standard that (a) the court did not itself require, and (b) the evaluator told Mother would not be appropriate.
Further, although the court did not have the full information at the time it first rejected any consideration of Mother's psychological evaluation, when Mother filed a motion for reconsideration of the most recent custody order, Mother provided a detailed explanation, with supporting documentation, as to why she was unable to obtain a psychological evaluation from any of the three potential evaluators whose names Father had provided to Mother. One of the therapists that Father suggested did not do psychological evaluations like the one requested; Mother called a second one, but there was no voicemail and no one ever answered the number provided by Father; and with respect to the third evaluator that Father put forward, Mother was told that both parties would have to do a "full custody evaluation (which wasn't ordered)" that would cost "up to $25-40K, with a $15K retainer." Mother asked Father to provide her with additional names, given the problems that she had encountered with the list he had initially provided, but Father never responded to Mother's request. Instead, Father filed an ex parte motion suggesting that Mother was " 'not mov[ing] forward' " with the psychological evaluation. Because Mother was running out of time and Father failed to provide any other names of potential evaluators, Mother sought out her own evaluation as a " 'back-up.' " The court did not address Mother's statements about what had occurred during the process of trying to obtain a psychological evaluation when the court considered Mother's request to reconsider the prior order. The court made no finding that Mother lacked credibility with respect to what had occurred, but simply declined to consider the evidence.
The court expressed some doubts about the evaluation, explaining that Mother incorrectly informed the evaluator that she was "self-referred," meaning it was not a court-ordered evaluation, and that Mother "was seeking it for her own personal growth." But rather than discounting the weight of the evaluation, or asking Mother for an explanation, the court apparently declined to consider the assessment in its entirety.
Similarly, given the seriousness of Father's allegations, it is critical for the trial court to fully consider all available evidence regarding Mother's efforts to address any substance abuse or mental health concerns. Mother completed a weekly outpatient program that spanned multiple months, and attested that she continued to take part in regular group and individual therapy, as well as participate in AA meetings. Mother provided documentation as to her completion of the intensive outpatient program that focused on substance abuse and PTSD treatment. The court's order does not acknowledge Mother's efforts in this respect, or explain why it found these efforts incomplete or inadequate. On remand, it is important to take a nuanced, thoughtful approach to a concededly complex record on this issue, rather than summarily concluding that Mother "has issues with alcohol."
As noted ante (fn. 25), Mother indicates that her DUI has since been resolved but is not part of our record. The trial court can consider this issue further on remand.
We also find it troubling that despite Mother's many requests to have the FCS counselor testify, and the court's order that the FCS counselor appear at multiple hearings in this matter in order to be available to testify, the FCS counselor failed to appear to testify, thus depriving Mother of the opportunity to call her as a witness and to test her conclusions. Despite the fact that the FCS counselor had not been available and had failed to appear at the previous two hearings, and that the FCS counselor was again not present at the August 27, 2019 hearing, the court told the parties that the August 27, 2019 hearing would be the final hearing, and provided Mother no further opportunity to examine the FCS counselor about her report, which played a significant role in the court's decision-making in this case. The court's reliance on the FCS report in this case was also troubling because by the time the court finally acted on Father's request to change custody, almost a year and a half had passed since the FCS counselor had met with the parties and prepared the report. The court indicated that it had relied on the report, stating that "in terms of how [B.E.-R.] was doing at the time of the Family Court Services report, he was not doing well." However, the record includes evidence that certain aspects of the FCS counselor's statements about how the child was doing in school were possibly not correct even at the time the report was prepared, and also that those observations were not in line with the child's performance in school at the time the court decided to make Father the custodial parent. At the time the court decided to change custody, the evidence in the record demonstrated that B.E.-R. was performing at high levels in school, and there was no indication of developmental or behavioral problems. Nevertheless, the court relied on the stale FCS report to suggest that the child's well-being had suffered in Mother's care.
Mother tried to subpoena the FCS counselor to testify at the November 18, 2019 "review hearing" and at the December 30, 2019 hearing on Mother's request for reconsideration of the August 27 custody order. However, the court suggested, inaccurately, that Mother had already had an opportunity to call the FCS counselor as a witness in the prior proceedings, and on this basis rejected Mother's continued efforts to cross-examine the FCS counselor. Although it does not entirely explain the failure to hear from the FCS counselor, we note that attorneys for the FCS counselor objected to the subpoena issued for the December 30 hearing, on the grounds that the witness was on "pre-approved leave . . . in accordance with applicable labor laws, rules and agreements," and Mother failed to comply with applicable local rules regarding service of the subpoena. Mother's counsel was notified of these objections in November but does not appear to have brought these defects to the court's attention before the December 30 hearing.
For example, a declaration submitted by the child's elementary school teacher called into question some of the conclusions drawn in the report as to the child's developmental progress. The teacher expressed concern about how the child was portrayed in the FCS report, and indicated that this portrayal was not consistent with her experience of the child.
B.E.-R.'s report card for the academic year just preceding the court's order demonstrated that he received marks of "Excellent" (the highest possible mark) in almost all academic areas, while receiving the next highest mark "Successful" with respect to "Reading/Literature." This report also demonstrated that the child was performing well behaviorally, receiving "High level of effort" or "Sufficient effort" in all areas except for a single quarter in which he received a "Needs improvement" with respect to "Exhibits self-control." However, his overall mark for the year in that behavioral area was "Sufficient effort."
Finally, and perhaps most significantly, the court failed to acknowledge, throughout these proceedings, that the record objectively demonstrates that Father repeatedly demonstrated an "inability to co-parent" and that he bore partial responsibility for his failure to see the child during the period of time in question. Instead, the trial court appeared to credit Father's allegations that Mother had prevented him from seeing the child but one time over the course of a year, even though the record does not support his assertion. For example, the record reflects that there is not a single instance in which Father exercised his right, under the existing custody order, to see the child for up to a five-day period in Arizona despite Mother's repeated suggestions to Father that he schedule this time with the child, requesting of Father only that he comply with the 14-day notice requirement.
In addition, there is evidence in the record that Father's own decisions and conduct, and his own failure to comply with the court order, played a role in his failure to see the child for certain periods of time. For example, Father did not make any request in the Talking Parents' thread that the parties used to schedule monthly visitation to have a visit with the child in the three months preceding his filing of his request to change custody in March 2018. In fact, Father did not respond to any of Mother's messages on Talking Parents during that period of time, and also did not answer her telephone calls or texts. Father also did not reach out to the child during some portion of this time period. Further, one of the most significant episodes of disagreement between the parties involved Father's summer parenting time with the child in 2017. However, Father failed to make plans to obtain custody of the child on the date provided for in the court order, and although Mother had been relying on Father having custody during that time, which would have facilitated her move to Arizona, Father stated only a few days before the date on which he was supposed to take the child that he was "not available to parent until Father's Day." This left Mother having to care for the child during her long-distance move from Northern California to Phoenix. Father's conduct in this respect cannot be deemed to have been positive or respectful co-parenting; yet the court never acknowledged Father's conduct in this regard or his co-parenting failures.
The record demonstrates that even as far back as September 2012, Father's exercise of his visitation time with the child was inconsistent. For example, as of August 2012, Father was supposed to parent the child "six hours per day for the 1st four consecutive days of each month" pursuant to a court order, with the location of the parenting to take place in San Diego in even months, and in Sacramento, where Mother and the child were living at the time, in odd months. Mother brought the child to San Diego for the August parenting time, but Father failed to make the trip to Sacramento the following month. Father requested money from Mother and a place to stay in order to further exercise his time with the child outside of San Diego.
The record also reveals that Father engaged in other behaviors that are inconsistent with positive co-parenting. Some of his communications with Mother in the record before the trial court indicate high levels of disrespect and incivility. For example, Father utilized the subject line "Pull your head out of your ass" in a message in which he accused Mother of calling at the wrong time on Wednesdays. In another excerpt from the record, Father sent an e-mail to Mother, in response to a fairly anodyne e-mail from Mother, in which he replied, "Says the drunk facing jail time. You're mentally sick, I've said that for a long time, and you've proven it through simply living your life and showing it. . . . Shouldn't you be drunk at Irish Wolfhound right about now, sucking some dude off, then getting your ass whipped while two kids sit at home with no mother?" Elsewhere in the record, Father said a variety of other unhelpful and antagonistic things in his messages such as: "[g]row up," "[y]ou have genuine psychological issues with control," and "[u]nfortunately you've never changed and never will." Mother also indicated in a declaration specific dates on which Father interfered with Mother's attempts to communicate with the child while the child was in Father's care, including engaging in actions such as hanging up on Mother while she was talking with the child, failing to answer calls, and offering the child incentives to not answer Mother's calls and/or to hang up after only a brief conversation. Further, Father's sudden withdrawal of his consent to Mother's request to move to Phoenix with B.E.-R. demonstrates that Father engaged in conflict-heightening behavior and suggests that he may have acted out of a desire to oppose Mother's wishes, given that the proposed move to which he was objecting would bring the child closer to Father.
At times Mother responded with equally unhelpful and antagonistic commentary. However, our review of the record created by the parties in the trial court demonstrates that Father was often the aggressor in the messages between the parties.
Given this record, it is notable that neither the FCS counselor nor the court commented on Father's role in this co-parenting conflict; instead, both appear to have focused solely on Mother's co-parenting flaws. In fact, the court seemed to place virtually all of the blame for the failures in the co-parenting relationship on Mother. As noted, our review of the record does not support such a one-sided view of the co-parenting failures. At a minimum, it appears that both the FCS counselor and the court overestimated the merits of Father's past complaints and requests for court assistance, and also the success, on the merits, of his prior requests for court assistance, since most of them were denied. The record does not support the conclusion that all of Father's contentions were substantiated or that they reflected the reality of the situation between these parents. To the extent that the court suggested that Father's repeated filing of motions with the court was evidence of Mother's recalcitrance, such a conclusion is clearly flawed.
The court's focus on Mother as the sole source of the conflict appears to have impacted the court's decision-making in ordering a psychological evaluation of Mother, only, and in its decision to reject Mother's proffer of the psychological evaluation that she had undergone. It appears clear from the record that the court viewed Mother as the sole problem in the case, and based on that perspective, reached the conclusion that Father should have been permitted to provide input into Mother's evaluation.
The court attributed improvement in the co-parenting between the parties to a change in Mother's behavior, which the court further ascribed to the fact that the parties were "in court." However, as noted, the existing custody order required the parents to agree to specific times when Father would exercise his parenting time, leaving room for further disputes between the parties. The record demonstrates that once the court specified more precise terms for Father's visitation with the child, such as ordering that Father would have custody of B.E.-R. on the first and third weekends of the month, the parties had much more success in complying with the order and had far fewer disputes. Although the trial court suggested that the parties' increased success in ensuring Father's consistent visitation with the child was due to Mother changing her conduct because the parties were in court, the record equally supports a conclusion that once the parties had a clearly defined, consistent visitation schedule, Father did not skip his visitations or fail to communicate with Mother about the exchanges and returns, and Mother ensured that the exchanges occurred. In addition, the court's suggestion that the recent success in Father's exercise of his custodial time was a result of Mother changing her behavior, and that Mother had done so only because the parties were before the court, overlooks the fact that these parents were involved in some sort of litigation in this case virtually in every year of the child's life, and Mother was repeatedly having to respond to Father's requests to change custody—all of which had been denied prior to the current order.
The FCS report filed with respect to Father's RFO notes that the parties had been to FCS five times prior to the current visit to FCS.
It also appears to this court that the trial court's failure to acknowledge or address Father's role in this high-conflict relationship led the court to dismiss certain tools that might have assisted the court in better understanding the dynamics at play in the parties' co-parenting relationship. Indeed, both the FCS counselor and Father's attorney suggested that the court order an Evidence Code section 730 evaluation. The FCS counselor also suggested that the court might want to appoint minor's counsel. Although we do not suggest that appointment of minor's counsel is automatically necessary in all move away cases, an Evidence Code section 730 evaluation or the appointment of minor's counsel likely would have been helpful in this case, given the high level of conflict and the failure of both parties to cooperate. Although the court did neither before ordering a reversal of the existing permanent custody order, on remand it may reconsider this issue if requested by either party.
The parties can stipulate to a custody evaluation, as well. We note that the parties apparently met and conferred regarding the possibility of an Evidence Code section 730 evaluation, and the court set a future date for the parties to report back with an update "on if the parties have decided to do a 730 evaluation," but Mother's counsel failed to appear at that next scheduled date. Nonetheless, it appears Mother later reiterated her request to perform a custody evaluation.
In addition, it is not at all clear that the court's only recourse, if it believed that Mother was not cooperating in permitting Father to exercise his custodial and visitation times with B.E.-R., was to reverse the custody order. There were clearly alternatives that would have been far less disruptive to the child and would have provided an opportunity for the court to determine whether such a drastic change would in fact ultimately be necessary. For example, more "clearly defined visitation orders" (Jane J., supra, 237 Cal.App.4th at p. 908) may have succeeded in addressing the court's concerns about disruption to Father's custodial time. As we have noted, it appears that the existence of specific, detailed visitation orders had already appeared to help ensure successful custody exchanges and visitation with Father. At a minimum, the trial court could have considered alternatives to the sweeping remedy of removing B.E.-R. from Mother, with whom he has lived for his entire life, and relocating him out of state to live with Father. Again, the focus should be on the child's needs, and not on penalizing the custodial parent for perceived failures to follow the court's order, which means that the court must give great weight to preserving the child's interest in stability and continuity unless it is " ' " 'essential or expedient for the welfare of the child that there be a change.' " ' " (Id. at p. 902.) This is certainly true where the record demonstrates that Father, himself, did not do some of the things that he could have done in order to see the child during the time period about which he was complaining. In this circumstance, the court may have been well-served in taking a more gradual and controlled approach to ensuring compliance with the court's order by both parties.
IV.
DISPOSITION
The August 27, 2019 order of the trial court giving Father primary physical custody of the child and permitting Father to move the child to San Diego is reversed. The matter is remanded to the trial court for further proceedings. On remand, the court should consider the views expressed in this opinion, including the need to determine whether Father met his burden to demonstrate a significant change in circumstances that warranted the disruption of the established custodial bond; the court may consider the parties' present circumstances in issuing any further custody and visitation order. (See LaMusga, supra, 32 Cal.4th at p. 1101.)
AARON, J. WE CONCUR: HUFFMAN, Acting P. J. GUERRERO, J.