Opinion
B324260
07-30-2024
In re the Marriage of GUNTHER and LILY SHIA. v. LILY SHIA, Appellant. GUNTHER SHIA, Respondent,
Lily Shia, in pro. per., for Appellant. Gunther Shia, in pro. per., for Respondent.
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County, No. LD071307 Gary D. Roberts, Judge. Affirmed.
Lily Shia, in pro. per., for Appellant.
Gunther Shia, in pro. per., for Respondent.
BENDIX, Acting P. J.
Lily Shia (mother) appeals the family law court's order granting respondent Gunther Shia (father) primary physical custody of their daughter Ilinka-Ilyana (child) when previously, mother had primary physical custody. Father already had sole legal custody, and the family law court concluded mother's antipathy towards father made shared custody impracticable, thus necessitating father also having primary physical custody with child spending two weekends per month with mother.
Mother asserts three main arguments on appeal: (1) the family law court did not find a change of circumstance justifying a change of custody; (2) the new custody order effectively was a "move away" order requiring consideration of additional factors the family law court ignored; and (3) the family law court erred by not considering the impact on child of separation from her half sibling born to mother years after the divorce.
We hold these arguments do not merit reversal. The grant of sole legal custody to father was a change of circumstance justifying a change in physical custody as well, and the evidence supported the family law court's conclusion that mother's hostility to father would not allow effective shared custody. In the circumstances here, this is not a move-away case because father is not changing child's residence-rather, the court is adjusting the ratio of time child spends with each parent in their existing residences which are in the same metropolitan region. Separating child from her half sibling was unavoidable here because father cannot take custody of both child and the half sibling of whom he is not the father and to whom he has no rights or obligations.
Accordingly, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
We limit our summary to the facts relevant to the issues on appeal.
This is the third appeal we have heard in this case. In the first, we affirmed the family law court's denial of mother's request for a domestic violence restraining order against father. (Shia v. Shia (Mar. 26, 2019, B286864) [nonpub. opn.].) In the second, we held a settlement agreement between the parties did not bar mother from introducing evidence of domestic violence in support of her claim for additional spousal support, and remanded for the family law court to consider that evidence. (Shia v. Shia (Jun. 29, 2020, B290859) [nonpub. opn.].) On remand, the family law court held a trial and issued a statement of decision on March 30, 2022 concluding mother had not met her burden of showing father had committed domestic violence against her or that she was entitled to additional spousal support. Mother did not appeal from that ruling.
1. Dissolution of marriage and initial custody order
Mother and father were married in May 2011. Child was born in July 2013. In May 2015, father filed a petition for dissolution of the marriage.
On February 22, 2016, the family law court entered a stipulated judgment granting mother and father joint legal custody of child. The judgment granted mother primary physical custody, with father having physical custody every second and fourth weekend of the month, and once child reached age four, every Wednesday afternoon through Thursday morning.
In the fall of 2019, the family law court appointed counsel for child to "[r]epresent best interests of child in high conflict parenting situation."
2. Father obtains sole legal custody of child
On August 5, 2021, in response to a request from father and after an evidentiary hearing lasting five days, the family law court, Judge Firdaus F. Dordi presiding, granted father sole legal custody of child. The court noted a number of contacts between parents and law enforcement or the Los Angeles County Department of Children and Family Services (DCFS). Allegations that father abused child were unsubstantiated, but DCFS put a safely plan in place regarding a 2020 incident between mother and child.
The court orally announced its grant of legal custody to father on August 5, 2021, but did not sign and file the order after hearing until December 14, 2021.
According to father, the safety plan was put into place after child's therapist reported child had told the therapist mother had held child's head under the shower as punishment. The record on appeal contains a DCFS safety plan, which states, "Safety Threat 1-cause serious injury," but contains no details. A later DCFS report states the allegations of physical abuse were "Inconclusive," and states, "Mother had no 'Malicious Intent' to harm child when she placed minor's head under water while cleaning minor's nose of 'Crust' in the shower." It is not clear if this last quoted sentence reflects DCFS's conclusions or mother's explanation. In any event, it does not appear the family law court, in awarding father sole legal and, later, primary physical custody of child, found mother had physically abused child.
The court found credible father's testimony that he felt stress to document and record his interactions with child to avoid mother using those interactions as a basis for instigating an investigation against him. The court stated mother's belief that father was abusing child, despite the lack of any substantiated complaints, was "impacting their lives in this profound manner." "[T]he level of intensity clearly appears to be much more on [mother's] side than [father's] side with respect to these things."
The court further found mother unilaterally decided to deviate from a case plan recommended by DCFS, and did not find mother's explanation for why she did so credible: "I did find that Ms. Shia disagreed; and therefore, she chose to do what she wished to do. And that that had happened over and over again," including when it came to determinations about child's schooling. Accordingly, the court found there had been a change of circumstances since the initial custody determination, and father should be the one to make medical and educational decisions regarding child. The court observed that were the parents to continue to share legal custody with one of them having tiebreaking authority, "[i]t would keep the conflict at a very high level."
The court expressed concern, "given the history of this case," that mother might "interfere with [child's] schooling because you don't approve of it and potentially seek to sabotage it." The court warned in that event it would have to "restrict [mother's] access to anything school-related."
Although child's counsel had argued father should have not only sole legal custody but also sole physical custody, the court declined to make any changes to physical custody out of concern father had not given mother adequate notice of that issue. Anticipating that father would file a request for order seeking sole physical custody, however, the court advised mother to meet with father and child's counsel to "discuss[ ] the prospect of coming up with a new physical custodial situation that is somewhat agreeable to by both sides," which "might avoid a new [request for order], and it might avoid a new evidentiary hearing." The court warned mother the findings it had made as to legal custody could "impact . . . substantially" any later findings as to physical custody. The court recommended the parties try to find an arrangement "somewhere in the range of a 50/50" division of custody.
Father asked about responsibility for delivering child to school. The court stated mother would have responsibility for that when child was in her custody, but noted that if father, now having sole legal custody, "ch[o]se a school that's impossible for [mother] to get to or something of that nature, that complicates things. [¶] So if [the school is] somewhere reasonably between the parties['] . . . residences, then [mother will] be responsible for that."
3. Family law court learns of newborn half sibling
A few days after the August 5, 2021 hearing, child's counsel filed a declaration stating, inter alia, that she had just learned that one or two months earlier mother had given birth to a second child (hereafter, half sibling), a fact that child had never mentioned to counsel. In a later hearing, child's counsel stated she had consulted with mother's counsel and clarified mother indeed had given birth to half sibling. Details about half sibling are scant in the record before us or in mother's appellate briefing, and father questions whether half sibling is indeed biologically mother's child. It does not appear from the record that the family law court made any rulings expressly addressing half sibling. Because it does not affect our resolution of this appeal, we will assume arguendo half sibling is biologically related to child.
4. Father's first request for sole physical custody
On October 8, 2021, father filed a request for order seeking sole physical custody of child, attaching over 200 pages of exhibits. Mother filed a responsive declaration opposing the request. Mother first objected to father enrolling child in a school only two blocks from his home rather than between mother's and father's homes, as mother contended the court had ordered. Mother further stated, inter alia, that her psychological evaluations had been positive, whereas father's evaluation showed "Narcissistic Personality Disorder and Histrionic Behavior," which mother contended was consistent with father's history of blaming mother and child for his problems. Mother accused father of being unwilling to coparent, and listed father's purported lies. She stated he was in arrears on his child and spousal support obligations.
Mother also discussed the relationship between child and half sibling, stating child had been teaching half sibling to talk and was "actively participating in his developmental milestones." Mother stated child's "emotional support with her younger sibling cannot be replicated by an adult caretaker. She is discovering and managing her emotions in beautiful ways as she takes on the role of his mentor. I see our child's growing gentle, protective devotion of her younger sibling now shift to her childhood friends. Having sibling bonding is an important aspect that is in her best interests to nurture."
Mother filed a witness list for the hearing on father's request for physical custody. The list included a DCFS social worker, a psychiatrist, a police detective, two tutors, and two "parents who transported [mother] to or from urgent care and emergency room July 2020." (Capitalization omitted.)
Father filed a declaration replying to mother's declaration, in which he explained he had chosen the school near his home because he had little time between the hearing granting him legal custody and the start of school a week later, and enrolling child in a school closer to mother would have required applying for a transfer to a different school district with a lower-rated school. Father contended child was struggling in school, but with mother currently having 75% custody, mother had far more information about child's schooling. Father stated that despite the court's recommendation the parties discuss a 50/50 custody arrangement, mother had not given father any extra custody time.
At the December 15, 2021 hearing on father's request for order, the court stated father did not need to file a 200-plus page request for order, and instead should submit a narrower filing addressing anything that had happened since the August 5 hearing. The court stated it knew the case, and if they proceeded on father's lengthy filing they might have to conduct a multi-day evidentiary hearing.
The court further stated that if the parties did not meet and confer to increase father's custody time, that would constitute a change in circumstance justifying the court to modify physical custody. "If equitable custody's not going to work out then you're not leaving the court a lot of choice." The court warned mother she would put herself at a disadvantage if at the next hearing there was no increase in father's physical custody, because the change in legal custody was "a dramatic shift."
5. Father's second request for sole physical custody
On March 11, 2022, father filed a new request for "full physical custody" with mother having visitation two weekends a month. Father contended the current custody arrangement in which he had custody of child only one weekday a week was insufficient for father to assist child with her education and behavior. Father reported the parties met and conferred at the end of January 2022 and father proposed a 50/50 custody arrangement, but mother would not agree.
Mother, represented by new counsel, filed a responsive declaration on May 17, 2022. Mother proposed a 50/50 arrangement and stated she would agree to it despite her "many misgivings." Mother emphasized the importance of child bonding with her infant half sibling, and mother's proposed 50/50 schedule "would allow [child] frequent opportunities to see her little brother without going long stretches of time away from him." Mother described child and half sibling's relationship, including child assisting in preparing half sibling for bed.
Father filed a reply declaration noting child's various difficulties and the many DCFS and law enforcement interactions, pointing out they arose while child was primarily in mother's custody. Father accused mother of lying repeatedly and reminded the court of earlier findings that mother lacked credibility.
At the next hearing on June 1, 2022, Judge Gary D. Roberts took over the case from Judge Dordi. At child's counsel's request, the court continued the hearing on physical custody. The court stated it had "spent a lot of time reading through this file," and it was "encouraged" by the "conciliatory tone" of mother's most recent responsive declaration. The court observed the conflict between the parents was putting child in danger and parents should "do your best to move forward in the best interest of the child."
6. Father's and mother's supplemental declarations
On July 8, 2022, father filed a supplemental declaration describing how he had changed to become a better parent to make a better life for child. As he had in earlier filings, he accused mother of ruining his career, but said, "My love for [child] and the complete destruction of all the material things I valued in the past has led me to work on myself and transform myself spiritually, emotionally, and as a person."
On July 28, 2022, mother, without knowledge or involvement of her counsel, filed another declaration. Mother called father "malicious" and said in the past he had physically abused her and child while in steroid-induced rages. She stated father had prepared for the divorce long before it had happened by going through mother's phone and deleting evidence of his abuse, and subsequently had told child what to say so as to initiate DCFS investigations of mother. Mother accused father of "habitual parental abduction."
Mother also claimed credit for father's professional successes, stating she herself took his online licensing exams for him and managed his client portfolios. She claimed father's own poor performance and misconduct cost him his job, and accused him of money laundering. She contended he did not meet his child support obligations because he prioritized his own expenses.
Mother reiterated she accepted the family law court's recommendation of a 50/50 custody arrangement, but did not believe it was in child's best interest. She stated father, since obtaining legal custody, "has unreasonably and dishonestly made legal choices for our daughter that greatly benefit him and not [child]," including lying about why he had enrolled child at a school close to his home. She complained that father was not keeping her informed of child's education, and had switched child's doctor and dentist such that mother no longer received information about child's medical care.
Mother concluded, "For a child who has been used as a pawn by Mr. Shia, upsetting her sense of normalcy, divesting her of siblings, maternal cousins, and local 'family' she has known and frequently interacted with her whole cognitive life would be against this State's public welfare policy and cruel to a child, regardless of her relation to us. I am her primary and emotional parent since birth. [Child] relies on me for stability, routine, a sense of home, permanence, and a reliable perspective. I respectfully and humbly beg this Court to dismiss Mr. Shia's [request for order] and to allow our daughter to continue being with her mother."
7. August 2022 hearing and father's declaration
At the next hearing on August 10, 2022, mother's counsel told the family law court he had not been aware of mother's July 28 declaration, which did not come from counsel. The court admonished mother that all submissions must come from counsel so long as she was represented.
Child's counsel stated that mother giving birth to half sibling "came as a complete shock to everyone involved in the case, especially [child]," and "[i]t was a very large adjustment and deal for [child]." Child's counsel stated child "was very concerned over the fact that she did not know where this child came from." Child's counsel said "[c]hild support services" contacted her office to inquire as to whether half sibling was indeed child's sibling or another family member's child, and when child's counsel contacted mother for more information "she was not forthcoming." Child's counsel reported that child was afraid the police would come to child's home, and said," 'I don't know where this baby came from.'" Child's counsel confirmed the birth of half sibling once mother retained new counsel, but child "still has a lot of emotional block and emotional trauma surrounding the issue of how her brother appeared."
Child's counsel spoke approvingly of the school in which father had enrolled child, stating that the school was providing therapy and remedial tutoring for child.
Child's counsel reported the parties had been unable to agree on a 50/50 custody arrangement. Child's counsel noted mother's filing stating she would agree to 50/50, but argued mother's subsequent July 28 declaration, filed without knowledge of counsel, in fact showed mother wished to remain the primary physical custodian. Child's counsel questioned whether mother would indeed abide by a 50/50 arrangement without court involvement.
The family law court noted it was the end of the day and asked when the parties would be available to return for further argument. The court stated its initial thought as it read through the papers was to order at minimum a 50/50 custody arrangement and hear argument as to whether there should be a complete change of custody as father requested. Mother's counsel stated he thought 50/50 was appropriate. The court said, "I thought I knew where you were [on the custody issue] until I read the [July 28] submission, and I had the same reaction as [child's counsel]." The court nonetheless believed it would be appropriate to try a 50/50 arrangement if the parties agreed to it.
On August 22, 2022, father filed another declaration asking for custody on a particular date for an event involving child's Girl Scout troop, of which father was a troop leader. Father also expressed concern about mother's resistance to him taking child to Australia to visit her paternal grandmother.
8. Family law court grants father primary physical custody
Argument on physical custody continued at a hearing on September 2, 2022. Mother's counsel disputed that child was surprised to learn about half sibling, explaining that given mother's age and pregnancy dangers, mother did not immediately tell child she was pregnant in case the baby was lost. Mother's counsel further argued that under In re Marriage of Williams (2001) 88 Cal.App.4th 808 (Williams), siblings should be kept together as much as possible. Mother's counsel recommended the parties try a 50/50 arrangement "and give it the opportunity to work." Mother's counsel contended mother had shown she followed court orders whether she liked them or not, and also followed her counsel's guidance. Mother's counsel further argued it would not be to the child's benefit to be in father's custody most of the time given father's "hard feelings about mom."
Father argued that although mother's counsel had a conciliatory tone, mother's tone was very different as indicated by her July 28 filing in which she accused father of erasing evidence, committing abductions, and laundering money. Father noted mother had previous opportunities to agree to a 50/50 arrangement but had not done so. Father believed that if the parties attempted a 50/50 arrangement "we will be [in court] again many more times." Father further argued that child was struggling in school, and although father enrolled her in summer school, under the current custody arrangement he could not monitor her progress. Father stated, "I'm not asking that [child] never sees her mother, but it would not serve her to spend half of her time . . . with somebody who is refusing to coparent and seems to have a deep desire to completely destroy me and willing to . . . use [child] to do that."
Child's counsel argued Williams was distinguishable because mother's new baby was only a half sibling and child had spent eight years of her life as an only child. Child's counsel echoed father's argument that mother's July 28 filing belied her counsel's assertion that mother would follow his counsel and comply with a 50/50 arrangement.
Mother's counsel responded to father's and child's counsel's arguments, noting Judge Dordi knew the full history of the case yet had recommended 50/50 custody over father taking full custody. Mother's counsel argued father caused problems by using his legal custody to dictate what classes child took regardless of whether it interfered with child's plans with mother, and father was not conferring with mother but simply telling her what was going to happen. Mother's counsel further pointed out that when child's counsel met with child, it was always when child was in father's custody, which likely affected how child spoke about mother.
Child's counsel responded to this last argument, stating her usual process was to interview her clients in both parents' homes, but in this case, child had told her she wanted to meet with counsel only at father's home because of the stress. According to child's counsel, child knew mother did not agree with child's counsel and mother had told child she did not like child's counsel. Thus, this was not a case in which child's counsel could interview child in both homes, which itself indicated the problem with a 50/50 custody arrangement.
The family law court then made its ruling. The court stated its "strong initial inclination" was to try a 50/50 custody arrangement, but mother's July 28 filing changed the court's mind. The court stated it could ignore the filing if not for the fact that it followed a long history of mother resisting a 50/50 arrangement. The court agreed with child's counsel's position that trying a 50/50 arrangement "would be a hollow exercise." The court ruled that father should have primary physical custody, with mother having visits the second and fourth weekends of the month.
The court acknowledged awarding father primary physical custody was "a very abrupt change," and both parties "do have some blame" for the issues between them. The court found it significant, however, that when the court recommended a 50/50 arrangement, the arrangement "wasn't effectuated," and even when mother's counsel filed papers agreeing to 50/50, mother then filed her July 28 filing "indicating that she was highly unlikely to go along with it."
9. Subsequent proceedings
On September 27, 2022, mother moved for a stay of the custody order pending appeal. Mother filed a witness list for the hearing on her stay motion-the list indicated the witnesses all would testify to changes in child's behavior "post-new custody order."
The family law court heard the motion on November 16, 2022. Mother, now represented by new counsel, argued against separating child from half sibling, and that the change in custody was "essentially a move away without a move away trial having been held." Mother's counsel did not request to call any witnesses.
The family law court noted the "move away" argument had not been raised in mother's papers. The court ruled the stay motion was in fact a motion for reconsideration with no new facts shown, and denied it.
On December 5, 2022, the family law court entered a written order reflecting its oral ruling at the September 2, 2022 hearing.
Mother filed her notice of appeal on September 27, 2022, before the family law court had entered its written order. We "may treat a notice of appeal filed after the superior court has announced its intended ruling, but before it has rendered judgment, as filed immediately after entry of judgment," and we do so here. (Cal. Rules of Court, rule 8.104(d)(2).)
DISCUSSION
On appeal, mother challenges the order granting father primary physical custody.
A. Governing Law and Standard of Review
Under Family Code section 3087, "[a]n order for joint custody may be modified . . . if it is shown that the best interest of the child requires modification of the order." Although "the best interest of the child" is also the guiding standard of an initial custody determination (see Fam. Code, § 3040, subd. (a)), courts have put a judicial gloss on that standard when a parent seeks to change an existing custody order." 'Once 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] . . .' [Citation.]" (In re Marriage of McKean (2019) 41 Cal.App.5th 1083, 1089 (McKean).) Thus, when a parent seeks to change a final or permanent existing custody order, courts apply" 'a variation on the best interest standard, known as the changed circumstance rule.'" (Ibid.) Under that rule," 'custody modification is appropriate only if the parent seeking modification demonstrates "a significant change of circumstances" indicating that a different custody arrangement would be in the child's best interest. [Citation.] . . .' [Citation.]" (Ibid.)
"We review custody and visitation orders under the deferential abuse of discretion test. [Citations.] The 'precise measure' of whether the family law court abused its discretion is whether the court 'could have reasonably concluded that the order in question advanced the "best interest" of the child.' [Citation.]" (Johnston-Rossi v. Rossi (2023) 88 Cal.App.5th 1081, 1087.) We review the family law court's factual findings for substantial evidence. (Ibid.)
B. The Family Law Court Did Not Misapply the Changed Circumstance Standard and Its Findings Were Supported By Substantial Evidence
Mother contends the family law court never made a finding of change of circumstance, instead applying only a "best interest" standard. It is true during the hearing at which the family law court awarded primary physical custody to father, the court never used the term "change of circumstance" or similar. Nevertheless, "[w]e presume the trial court knew and properly applied the law absent evidence to the contrary." (McDermott Will &Emery LLP v. Superior Court (2017) 10 Cal.App.5th 1083, 1103; see Keep Our Mountains Quiet v. County of Santa Clara (2015) 236 Cal.App.4th 714, 741 [" 'It is a basic presumption indulged in by reviewing courts that the trial court is presumed to have known and applied the correct statutory and case law in the exercise of its official duties.' "].)
Mother identifies no evidence the family law court misunderstood what standard applied. She notes the family law court in its ruling on physical custody referred to the child's best interest, but as discussed, the child's best interest is the correct standard under Family Code section 3087, with the change-of-circumstance rule a judicial gloss on that standard. The family law court did not misstate the law.
Also, the change of circumstance is patent on the face of the record. Most notably, the family law court had granted father sole legal custody, finding, inter alia, the conflict between mother and father was impacting child, "the level of intensity clearly appears to be much more on [mother's] side than [father's] side with respect to these things," and mother inappropriately was making unilateral decisions about child's education and medical treatment. Mother may not agree with these findings and ruling, but she did not challenge them on appeal and they are final.
In subsequent hearings, the family law court warned mother the change in legal custody was a "dramatic shift" that could impact physical custody as well, and repeatedly urged her to reach an agreement with father that increased his custody time. The court in fact informed mother that if the parties did not reach agreement to increase father's custody time, that would constitute a changed circumstance justifying modification of the custody order.
Despite these warnings, father presented evidence that mother refused to grant father more custodial time despite meeting and conferring, and it was not until she retained new counsel that she finally filed her declaration proposing a 50/50 arrangement despite her "many misgivings." This agreement was short-lived, however, because two months later mother, without her counsel's knowledge, filed her July 28, 2022 declaration leveling serious accusations against father of abuse, destruction of evidence, "parental abduction," and money laundering, and asking the court to dismiss father's request for order "and to allow our daughter to continue being with her mother."
In short, the grant of sole legal custody to father, a ruling from which mother did not appeal and cannot challenge now, was a significant change of circumstance. Mother's history of antipathy towards father, including her July 28 filing, supported the family law court's further conclusion that coparenting was not possible, and father therefore should have primary physical custody as well. The family law court applied the correct standard and its findings were supported by substantial evidence.
Mother focuses on evidence from which the family law court could have made a different decision. That analysis is not consistent with our standard of review. The question before us is whether the family law court reasonably could conclude granting father primary physical custody was in child's best interest. As explained above, the family law court's conclusion was reasonable.
Mother argues the family law court's concern that she would not comply with a 50/50 arrangement was a speculative "hunch" insufficient to support a change in custody. She disputes child's counsel's and father's contention that mother had resisted a 50/50 arrangement and notes her July 28 declaration in fact expressly stated she agreed to such an arrangement, albeit reluctantly. Mother further contends there is no evidence she previously failed to follow court orders.
We do not read the family law court's ruling as a finding that mother would not follow court orders. Rather, the basis of the ruling was that for a 50/50 arrangement to succeed, that is, bring some peace to the conflict between the parents and provide stability for child, the parents would have to cooperate with one another. The family law court found cooperation was unlikely given the history of the case, including mother's repeated accusations of abuse and criminality against father in her July 28 declaration and elsewhere, and her previous resistance to accepting voluntarily a 50/50 arrangement despite the family law court's urging her to do so. The family law court's conclusion was not speculation, but a reasonable prediction based on the facts of the case.
Mother argues there was no basis to change custody because the family law court never found she was not a competent parent, or abused or neglected child. Mother cites no authority that these findings are a prerequisite to a family law court's ordering a change of custody. Again, the family law court's chief concern was not that mother was not a capable parent, but that mother's antipathy towards father precluded a coparenting arrangement, and therefore it was in child's best interest to be placed primarily with father. To the extent mother contends it is father who has driven the conflict between them and makes coparenting impossible, the family law court concluded otherwise in final rulings that mother has not challenged, including the ruling granting father sole legal custody.
Mother argues the change of custody constitutes a "move away," that is, a change of the child's residence, which mother contends required the family law court to evaluate additional factors it failed to consider. (See Jane J. v. Superior Court (2015) 237 Cal.App.4th 894, 904-905.) This is not a move-away case. Father did not move child to a new residence. The child was already spending time with mother and father in their respective homes-the family law court's custody ruling simply shifted the amount of time child spends with each parent. Father, moreover, lives in Santa Clarita, and mother in Sherman Oaks, which are both within the Los Angeles metropolitan region and approximately 20 miles apart. Thus, the cases cited by mother are not instructive to the extent they address move-away requests. (See, e.g., In re Marriage of C.T. &R.B. (2019) 33 Cal.App.5th 87, 97 [request by noncustodial parent to move child from California to Arkansas]; In re Marriage of Brown &Yana (2006) 37 Cal.4th 947, 952 [custodial parent sought to relocate with child from California to Nevada].)
In making this argument, mother references factors discussed in In re Marriage of LaMusga (2004) 32 Cal.4th 1072 and In re Marriage of Burgess (1996) 13 Cal.4th 25.
Mother argues the custody order infringes on her constitutional right to direct the care, upbringing, and education of her child. Mother cites no authority that a family law court granting primary physical custody to one parent implicates constitutional concerns. (See In re Tobacco Cases II (2015) 240 Cal.App.4th 779, 808 [failure to provide supporting legal authority waives issue].)
C. The Custody Order Does Not Conflict With Case Law or Public Policy Concerning Separation of Siblings
Mother argues the custody order will separate child from half sibling, and the family law court abused its discretion by not considering the impact of that separation on both children. Mother primarily relies on three cases: Williams, In re Marriage of Heath (2004) 122 Cal.App.4th 444 (Heath), and McKean. As we discuss below, those cases are distinguishable on their facts from the circumstances presented here.
1. Summary of mother's cited cases
a. Williams
In Williams, the parents of four minor children divorced and agreed to a joint custody arrangement. (Supra, 88 Cal.App.4th at p. 809.) The mother remarried, moved to Utah, and requested modification of the custody order so the children could live with her. (Ibid.) Father objected. (Ibid.) The family law court ruled that the oldest and youngest sibling would live with mother in Utah, while the two middle children would live with father in California. (Id. at pp. 809-810.) The court reasoned that either parent was "an appropriate custodial parent," but found the evidence showed the oldest child had a stronger relationship with the mother than the father, and because of the youngest child's "tender years," it was in that child's best interest to be with the mother as well. (Id. at p. 811.) The court further ruled that, "[a]s to the two middle children, the factors of the established patterns of care and emotional bonds outweigh other considerations and the court finds that their best interests are served by their father being the custodial parent in each case." (Ibid.)
The Court of Appeal reversed, concluding the family law court's "custody arrangement [was] so unusual and onerous to all concerned that it cannot be considered a routine exercise of judicial discretion." (Williams, supra, 88 Cal.App.4th at p. 813.) "The record is silent on the adverse effect the order will necessarily have from the point of view of the children. They too have rights, which must be considered." (Ibid.) Among those rights is the "right to the society and companionship of their siblings." (Id. at p. 814.) "We can envision a case in which an extraordinary emotional, medical or educational need, or some other compelling circumstance, would allow the separation of siblings. But here there is no evidence of the impact that separation will have on these children. In the absence of such evidence, we cannot affirm the family law court's order even on the deferential abuse of discretion standard." (Ibid.)
The Court of Appeal held that "the family law court may only order a separation of siblings upon a showing of compelling circumstances. If it does, it must articulate such circumstances in a manner that permits meaningful appellate review." (Williams, supra, 88 Cal.App.4th at pp. 814-815.)
b. Heath
Heath concerned a family with two children born in 1998 and 2000, the older of which had autism. (Supra, 122 Cal.App.4th at p. 447.) The parents separated in 2001 and stipulated to mother having primary physical custody. (Ibid.) In 2003, the father argued he believed the older child was impeding the younger child's development, and the children should be separated. (Ibid.) The family law court agreed, stating it "had 'an image of what's going on.'" The court surmised the younger child was imitating the older child's autistic behaviors in order to get more attention. (Ibid.) The court then awarded custody of the older child to mother and the younger child to the father, and established a visitation schedule. (Ibid.)
The Court of Appeal reversed, concluding the family law court's order ignored two "strong policies in California law," namely "that the sibling bond should be preserved whenever possible," and "that disability, mental or physical, is never to be presumed as a barrier to individual rights." (Heath, supra, 122 Cal.App.4th at p. 449.) Analogizing to Williams, the court reasoned that both parents were "appropriate custodial parents," and "the record was silent as to the relationship between the children, the true impact, if any, of [the older child's] autism on [the younger child], and the impact on [the older child] of losing [the younger child]." (Heath, at p. 450.) The reviewing court noted the family law court made its ruling without taking testimony, ordering a custody evaluation, or receiving expert analysis, instead relying on "speculation by the father and the children's counsel, and the court's 'hunch.'" (Ibid.) "The law, however, requires proof of compelling circumstances, based on evidence that the family law court can evaluate and this court can review." (Ibid.)
c. McKean
McKean involved the divorce of parents of three children, the oldest of which had suffered permanent major brain damage from a car accident. (Supra, 41 Cal.App.5th at p. 1086.) The family law court granted the parents joint physical custody of all three children, stating" 'there seems to be a bond with all three (3) minor children, and the court thinks it should be equal time with [the father] and [the mother].'" (Id. at p. 1087.) The next year, the mother filed a request seeking sole physical custody of the oldest child, which the father opposed. (Ibid.)
Following a trial, the family law court granted the mother sole physical custody of the oldest child, but granted the father sole physical custody of the two younger children, an outcome neither parent requested or supported. (McKean, supra, 41 Cal.App.5th at pp. 1087-1088.)
In explaining its ruling, the family law court found the parents" 'cannot co-parent'" and" 'parallel parenting' was not possible given [the oldest child's] medical needs" and the parents' "inability to communicate." (McKean, supra, 41 Cal.App.5th at p. 1087.) The court further found the mother was not capable of being the primary physical custodian of the two younger children if she was also the physical custodian of the oldest child, citing an incident in which the mother left one of the younger children in the care of the child's dance teacher at a workshop in Las Vegas so the mother could return to California after the oldest child suffered a seizure. (Id. at pp. 1087-1088.) The family law court considered this" 'abandonment'" of the younger child. (Id. at p. 1088.) As additional support for its ruling, the family law court found the oldest child's "extraordinary" needs to be compelling circumstances justifying separation of siblings, and further concluded the oldest child's handicap "rendered her incapable of recognizing" her siblings or providing them "with any emotional support." (Ibid.) The court also was concerned that whatever bonding there was between the oldest and two younger siblings "would simply be the result of [the younger siblings] parentification, i.e., the requirement they 'parent' [the oldest sibling] while in [the mother's] care." (Ibid.)
The Court of Appeal reversed. (McKean, supra, 41 Cal.App.5th at p. 1093.) The reviewing court rejected the family law court's characterization of the Las Vegas incident as" 'abandonment'" of the younger child, concluding the record instead indicated the mother "did everything a parent could be expected to do under the circumstances." (Id. at p. 1090.) The court noted, "[T]he record is replete with [the mother's] commendable achievements as a mother to all three children," and mother "appropriately, and indeed admirably, balanced time constraints posed by [the oldest child's] severe disabilities with the needs of her able-bodied younger children." (Ibid.) The family law court, moreover, had not "weighed [the younger children's] interests in the stability of their current custodial arrangement" or "the potential harm to [the younger children] from losing [the mother] as a custodial parent." (Id. at p. 1091.)
The appellate court cited Williams and Heath as recognizing the public policy of preserving sibling bonds whenever possible, and requiring a showing of compelling circumstances before separating siblings. (McKean, supra, 41 Cal.App.5th at p. 1091.) The court cited evidence, including from the oldest child's neurologist, that the oldest child could indeed "appreciate her social surroundings" and "feel emotions such as fear and happiness" and that the children were bonded with one another. (Id. at p. 1092.) The court further noted a lack of evidence of" 'parentification'" of the younger children. (Ibid.) The order separating the siblings "appeared to be supported by the [family law] court's speculation about the dynamics between the siblings. This was insufficient." (Ibid.) "Testimony demonstrated the siblings had mutual bonds and [the oldest child's] cognitive state was akin to that of a one-year-old to 18-month-old child. Children of that age indeed have relationships with their families, and dismissing the impact of separating the siblings based purely on [the oldest child's] disability was error." (Ibid.)
2. Analysis
Mother argues under Williams, Heath, and McKean, that the family law court could not issue an order separating child from half sibling without conducting an impact analysis and finding compelling circumstances justifying separation. We disagree. Mother's cited cases all involve siblings who share the same mother and father and who lived together prior to the divorce. In the instant case, in contrast, child and half sibling share only one parent, half sibling was born years after the divorce when child was approximately eight years old, and child and half sibling have never lived together full time.
These distinctions are significant. Most importantly, absent agreement among the parents, it generally is not feasible to keep half siblings together with the child of divorcing parents, because, as for example here, father has neither the right nor the obligation to take custody of half sibling, and therefore cannot keep child and half sibling together while child is in his custody. Perhaps parents in less contentious circumstances could agree voluntarily to an arrangement where child and half sibling remain together even when in father's custody, but the family law court would have no authority to order such an arrangement when father has no right to custody of half sibling. Williams, Heath, and McKean, in which it was readily possible for the family law court to order the full siblings remain together, did not address or have reason to contemplate the scenario presented in the instant case.
The only outcome that would keep child and half sibling together would be to grant mother sole or primary physical custody. The law, however, does not support granting custody preference to a parent merely because he or she has a child with someone else following the divorce. Such a rule would be unfair to the other parent, who is no less deserving of time with the shared child just because he or she has not produced a postdivorce half sibling. Such a rule would also create perverse incentives for parents in acrimonious custody disputes to have children postdivorce to bolster their entitlement to custody. Further, in the event both parents have offspring postdivorce, such a rule would be unworkable given the family law court would have to decide which half sibling relationship to prioritize.
Additionally, when siblings who have spent their whole lives together are separated during a divorce, a family law court should and must consider whether the separation would adversely impact them. That concern is less present here, where child has lived most of her life as an only child, and even under the prior custody order, was living part of the time with father after half sibling's birth. A change in custody that increases her time with father is thus not comparable to the separations at issue in Williams, Heath, and McKean.
Our ruling today does not mean that a family law court cannot consider a child's relationship with his or her half siblings when the court is determining what custody arrangement is in the child's best interests. We also do not suggest that half-sibling relationships cannot be as important to a child as full-sibling relationships or that maintaining sibling and half-sibling relationships is not important given the emotional trauma of divorce. We only conclude Williams, Heath, and McKean do not demonstrate error here merely because, as mother asserts, child will spend less time with half sibling if father is awarded physical custody. Similarly, mother fails to demonstrate error in the family court's failure to conduct a sibling impact analysis.
Mother argues the family law court should have appointed counsel for half sibling to obtain half sibling's input regarding the separation. The record does not reflect that mother requested appointment of counsel for half sibling, and the issue is therefore forfeited. (GoTek Energy, Inc. v. SoCal IP Law Group, LLP (2016) 3 Cal.App.5th 1240, 1248.)
Mother cites statutes and court rules she contends support keeping half siblings together whenever possible. As discussed, it is not generally possible to avoid separating a child of divorced parents from a postdivorce half sibling, and is not possible under the circumstances of this case given the family law court's findings as to mother's antipathy towards father making joint physical custody unworkable.
Mother's cited statutes and court rules are inapposite, moreover, because they apply to circumstances, not present here, in which children are removed from their parents' custody and placed in foster care or adopted. None of the cited statutes or court rules suggests or requires a family law court to prioritize postdivorce half-sibling relationships when making custody orders for the biological child of divorcing parents. (See Fam. Code, § 8714.5, subd. (a)(2) [statement of legislative intent in cases of adoption to, inter alia, "recogniz[e] the importance of sibling and half-sibling relationships"]; Welf. &Inst. Code, §§ 306.5 [children removed by social worker from parental custody should be placed with siblings and half siblings if practical and appropriate], 366.26, subd. (c)(1)(B) [providing for consideration of sibling relationships when determining whether to terminate parental rights], 16002, subd. (a)(1) [statement of legislative intent to ensure siblings are placed together when removed from their home]; Cal. Rules of Court, rules 5.460(a), (b)(6) [rule for exchanging contact information among adopted siblings defines" 'Sibling'" as including half sibling]; id., 5.502(37) [juvenile court rule defines" 'Sibling group'" as including children "related to each other by . . . affinity through a common legal or biological parent"].)
Mother contends the family law court abused its discretion by not taking live testimony from mother's witnesses when mother moved for a stay of the custody order. We note mother was represented by counsel at that hearing, and although mother had filed a witness list, counsel did not request to call any of them. Assuming arguendo the witness list itself constituted a sufficient request to call those witnesses, mother does not explain why she did not, in fact, call these witnesses at the hearing on father's request for physical custody. The family law court viewed mother's stay request after the court issued its custody order as mother seeking reconsideration of its custody order, a conclusion mother does not address or contest on appeal. It is well established that a party may not seek reconsideration based on new evidence in the absence of "a satisfactory explanation for failing to present the evidence sooner." (California Correctional Peace Officers Assn. v. Virga (2010) 181 Cal.App.4th 30, 46, fn. 15.) Mother has provided no such explanation.
DISPOSITION
The order is affirmed. The parties are to bear their own costs on appeal.
We concur: WEINGART, J. KELLEY, J. [*]
[*] Judge of the San Luis Obispo County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.