Opinion
B301543
05-25-2021
K.M., Plaintiff and Appellant, v. A.J., Defendant and Respondent.
Law Offices of Lisa R. McCall, Lisa R. McCall and Erica M. Baca for Plaintiff and Appellant. A.J., in pro. per., for Defendant and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Los Angeles County Super. Ct. No. SD034570) APPEAL from a judgment of the Superior Court of Los Angeles County, Lawrence Riff, Judge. Affirmed. Law Offices of Lisa R. McCall, Lisa R. McCall and Erica M. Baca for Plaintiff and Appellant. A.J., in pro. per., for Defendant and Respondent.
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K.M. appeals from a judgment following a bifurcated trial relating to child custody and visitation. The trial included adjudication of K.M.'s request to relocate the residence of the parties' daughter from Los Angeles, California to New Orleans, Louisiana. K.M. raises several challenges to the family court's orders, which included an order increasing father A.J.'s parenting time with their then four-year-old daughter, R.J. K.M. has not demonstrated an abuse of discretion, and therefore, we affirm.
We use initials to protect the personal privacy interests of the parties and the child in this Family Code proceeding. (Cal. Rules of Court, rule 8.90(b)(1) & (11).)
FACTUAL AND PROCEDURAL BACKGROUND
A. Prior Custody and Visitation Orders
K.M. and A.J. were married on December 15, 2012. R.J. was born in August 2015. On October 23, 2015, when R.J. was approximately two months old, K.M. filed a petition for dissolution of marriage.
On December 29, 2015, pending a further evidentiary hearing, the family court awarded K.M. and A.J. joint legal custody of R.J. It ordered that K.M. would have primary physical custody of R.J., while A.J. would have parenting time on alternating days from 10:00 a.m. to noon.
On March 3, 2016, K.M. sought a domestic violence restraining order against A.J. The family court issued a temporary restraining order and amended the custody and visitation orders to require that A.J.'s visits with R.J. be supervised. Following a 10-day evidentiary hearing, on August 29, 2016, the family court determined K.M. had presented insufficient evidence to warrant a permanent restraining order.
On September 19, 2016, the family court determined that A. J. was not a danger to R.J., and that A.J.'s visits could resume without a monitor. The court observed that reducing the number of exchanges would be in R.J.'s best interest due to the "high conflict atmosphere" between the parents. Further, "the time [A.J.] may spend with [R.J.] should be increased for each visit as she is now older and capable of spending more time away from [K.M.]." The court ordered parenting time for A.J. every Tuesday and Thursday for four hours and every Saturday for six hours.
On August 7, 2017, when R.J. was two years old, the family court again increased A.J.'s parenting time. Following a four-week period in which A.J.'s daytime visits on the weekends were increased, A.J.'s parenting time transitioned to overnights. The court ordered A.J. to parent R.J. on alternate weekends, from Saturday at 10:00 a.m. to Sunday at 6:00 p.m.; and every Tuesday and Thursday for four hours.
B. The Requests for Orders Relating to R.J.'s Custody
On March 6, 2018, A.J. filed a request for order to increase his parenting time with R.J. On March 28, 2018, K.M. filed a request for order seeking permission to relocate with R.J. to New Orleans so that K.M. could begin employment with Tulane Law School in August. The family court scheduled a bifurcated trial on the issues of custody and visitation. Both parents' requests for orders were deemed subsumed in the trial.
The appellate record does not include a copy of A.J.'s request for order.
Trial began on July 30, 2018, and the parties rested on February 8, 2019. During the course of the nonconsecutive 10-day trial, the court heard testimony from 20 witnesses.
On August 6, 2018, the family court issued a temporary order that authorized K.M. to move to New Orleans with R.J. pending the conclusion of the trial. Under the order, A.J. was scheduled to have parenting time in New Orleans every first and third weekend of the month.
On August 29, September 10, and September 12, 2018, the parties again addressed the temporary custody and visitation orders. The family court modified its temporary order to permit A.J.'s parenting time to occur in Los Angeles on the third weekend of every month. The court clarified that the temporary orders did not establish a "status quo" for R.J. to reside in New Orleans. K.M.'s counsel acknowledged the orders were temporary.
C. The Statement of Decision and Judgment
On April 29, 2019, the family court issued a tentative statement of decision addressing custody and visitation. On July 22, 2019, following consideration of objections to the tentative ruling, the court issued a 22-page final statement of decision.
In its statement of decision, the family court determined that because there had not been any prior final custodial orders, it would apply the best interest of the child standard in making custody and visitation orders concerning R.J. In determining R.J.'s best interest, the court weighed the factors articulated in In re Marriage of LaMusga (2004) 32 Cal.4th 1072 (LaMusga).
The family court summarized the parties' principal contentions. K.M. asserted she should be awarded sole custody of R.J. with " 'liberal visitation' " for A.J. She claimed these orders were in R.J.'s best interest "because [A.J.] continue[d] . . . to violate court orders despite his probation; because [A.J.] has been careless with [R.J.] resulting in a collection of head injuries while in his care; that [A.J.] . . . has admitted to a 'debilitating fear of women' which would make placing a female child in his custody unwise; because [A.J.] . . . has a continued pattern . . . of uncontrolled anger toward [K.M.]; because . . . he has an alcohol abuse problem; and because . . . [A.J.] is a liar who has presented falsified evidence to the [c]ourt."
A.J. sought joint legal custody and " 'primary' " physical custody, which the court interpreted as sole physical custody with liberal visitation for K.M. A.J. asserted such orders would be in R.J.'s best interest "because . . . [K.M.] has, since the date of separation, done all she could to 'build a wall between [R.J.] and her father' which wall, brick by brick, . . . 'was meant to secure an insurmountable barrier between this little girl and her dad'[;] . . . [K.M.]'s conduct has resulted in 'abuse' of [R.J.], both physically and emotionally; . . . [K.M.]'s campaign to exclude him from their daughter's life has included [K.M.]'s subjecting [R.J.] to unnecessary and potentially dangerous medical testing and evaluation; . . . [K.M.] has falsely asserted that [A.J.] engaged in sexual abuse of [K.M.]; . . . [K.M.] wrongfully 'abducted' [R.J.] from him and denied him visitation for some 75 days and thereafter she burdened his visitation with the requirement of supervised monitoring (which ultimately the [c]ourt found was not necessary) and other burdensome and vexatious conditions; . . . [K.M.] asserted false domestic abuse allegations which the [c]ourt ultimately decided were unproven; . . . [K.M.] excluded [A.J.] from information about [R.J.]'s medical appointments and excluded him from participating in day care decisions; and that [K.M.] . . . made a 'show' (the [c]ourt's word) of seeking to facilitate visitation when in fact she was grudging and closed-minded about [A.J.] having parenting time with [R.J.]."
The family court concluded that neither parent demonstrated the other parent was unfit. Rather, it found after "a careful weighing of all the admitted evidence and evaluating the credibility of the witnesses that both [K.M.] and [A.J.] are capable, responsible and loving parents." Thus, the court concluded "that both parents, in [R.J.]'s best interest, should have prominent and important roles, and frequent and continuing contact, in [R.J.]'s life."
As to the parties' specific contentions, the court found that K.M.'s allegations relating to R.J. having suffered a series of head injuries while in A.J.'s care were overstated. Rather, "the events in question were all in the nature of relatively minor bumps and scratches of the type that a toddler . . . would commonly encounter." The court observed R.J. suffered a similar injury while in K.M.'s care. However, the court found disturbing that K.M. persistently subjected R.J. "to fulsome medical examination[s]" for "minor bumps and scratches." The court also found disturbing A.J.'s decision to subject R.J. to an examination that included her vaginal area to document that R.J. was well and unharmed.
The court found the evidence demonstrated that A.J.'s " "debilitating fear of women' " was hyperbole. Further, based upon the evidence, the court found that A.J. had neither an anger management problem nor an alcohol abuse problem. The court observed that "[A.J.]'s demeanor during trial (including instances of his expressing frustration) and the extensive written record of communications demonstrate that he can positively and constructively interact with [K.M.] relative to the upbringing of their daughter."
The court found K.M. provided "more than" 50 percent of R.J.'s care "during her lifetime" and "has not been careless with respect to [R.J.]'s health and well-being."
The court found that K.M. "has had a grudging attitude with respect to providing [A.J.] with parenting time access to [R.J.] which has translated into [A.J.] having less time with their daughter than has been optimal or contemplated by the various temporary [custody] orders." The court did not find K.M. engaged in a brick-by-brick scheme to alienate R.J. from A.J.; nor did she try, as she contended, to ceaselessly and selflessly foster and increase A.J.'s parenting time. The court observed that were it "called upon to make a 'friendly parent' factual finding, the [c]ourt would find on th[e] record [before it] that [A.J.] is the parent more likely to allow [R.J.] to have frequent and continuing contact with the non-custodial parent."
Turning to the LaMusga factors, the court found that the "paramount interest" of continuity and stability in the custodial arrangement and the harm that may result from the disruption of established patterns of care and emotional bonds was "generally neutral." The court observed there were two temporary custodial arrangements to be considered: the initial one that existed in Los Angeles, and the one that existed following K.M.'s move to New Orleans, approximately 10 months prior to the court issuing its statement of decision.
The court balanced the practicalities of R.J.'s age (then three-and-one-half years old) and her inability to travel on her own between Los Angeles and New Orleans. "Under an ideal scenario in light of [R.J.]'s stage of development she would not be physically separated from either parent for more than a couple of days and both parents should have routine caregiving roles. That is not practicable here, however. There is a stark tradeoff facing this family and the [c]ourt as we consider [R.J.]'s best interests: more travel time and longer separation time from both parents, on the one hand, or considerably less parenting time for one parent or the other for the immediate future, on the other hand." The court further found that "[K.M.]'s reasons for relocating to New Orleans [were] reasonable, based in good faith and [were] in no way motivated by a desire to frustrate [A.J.]'s contact with [R.J.]."
As to R.J's relationship with each parent, the court found "that both relationships are strong and healthy." However, "the parents' current relationship and ability to communicate and cooperate effective[ly] is poor." K.M. and A.J. "have been engaged in active, hostile[,] and acrimonious family law litigation. . . . [D]uring virtually none of [R.J.]'s life have these parents effectively co-parented." (Fn. omitted.) The court determined "that [A.J.] has a greater willingness than [K.M]. to put [R.J.]'s interests above his or her own. . . . [K.M.] would subjectively define her interests as entirely co-extensive with [R.J.]'s. That is, [K.M.] would explain that all of her actions are driven by her seeking to further [R.J.]'s interests and not her own. The [c]ourt believes she is objectively mistaken because it is in [R.J.]'s best interest to have more parenting time with [A.J.] including in [A.J.]'s home in Los Angeles. On the other hand, [A.J.] subjectively believes that it is in [R.J.]'s interest to have a fulsome parenting relationship with [K.M.], and objectively he is correct in the [c]ourt's view."
The court considered the extent to which the parties shared temporary custody to date and noted that "vast amounts of evidence was presented at trial on this issue." As the court observed earlier in its statement of decision, K.M. had custody more than 50 percent of the time, but her grudging attitude toward A.J.'s parenting time "translated into [A.J.] having less time with their daughter than has been optimal or contemplated by the various temporary [custody] orders."
As to community ties and support systems, the court concluded that K.M. had a stronger support system in New Orleans, with family members nearby.
The court granted joint legal custody to K.M. and A.J. The court noted the parents were "currently so impaired in their ability to co-parent that not awarding tie-breaking authority will result in continuous disputes on legal custody decisions." Accordingly, the court granted each parent the final authority to make decisions on three out of six legal custody issues, such as enrollment in school or selection of a doctor. The court's division of tie-breaking authority was "designed to induce these parents to effectively co-parent." Although the award of joint legal custody was intended to be a final order under Montenegro v. Diaz (2001) 26 Cal.4th 249, the division of tie-breaking authority was not.
A Montenegro order is a permanent custody order that can be modified only upon a showing of "a significant change of circumstances" that indicates a modification is in the child's best interest. (Montenegro v. Diaz, supra, 26 Cal.4th at p. 256.)
The family court recognized that R.J. "would likely prosper" in either Los Angeles with A.J. or in New Orleans with K.M. Accordingly, the court granted joint physical custody to both parents. As to parenting time, the court observed that "[w]ere the parties living in the same locale, the [c]ourt would establish a . . . parenting plan that would result in a 50-50 [percent] parenting time allocation." Thus, the court formulated a parenting plan that would replicate as close as possible a 50-50 timeshare. In doing so, the court found "(a) that at age three and a half, [R.J.] ought not [to] be physically separated from either parent for too long a duration; (b) that although only three and a half, it is [in R.J.]'s interest to attend a single preschool in one locale; (c) that the parties have limited resources relative to travel expenses for themselves and [R.J.] between New Orleans and Los Angeles; (d) that it is not in [R.J.]'s interest to spend too much time traveling." The court observed that, "[t]he tradeoffs are intractable . . . and not all these goals can be met."
"Parsing the evidence, the [c]ourt [found] that, at [the time it issued the statement of decision], [K.M.]'s proposed home environment for [R.J. was] more stable, varied and robust with respect to [R.J.]'s social and extracurricular activities, and extended family relationships for [R.J.] than [A.J.]'s proposed home environment. Accordingly[,] the [c]ourt [based] its parenting plan on the premise that it [was] in [R.J.]'s best interest, for the present at least, that [K.M.]'s parenting time in New Orleans . . . predominate over [A.J.]'s parenting time in Los Angeles." (Fn. omitted.)
The court ordered K.M.'s parenting time to commence on the first day of the month; and A.J.'s parenting time to commence on the 19th day of each month, and continue until the Sunday next following the 28th day of each month, at which time K.M.'s parenting time would resume. The court ordered A.J. to pick up R.J. in New Orleans and K.M. to pick up R.J. in Los Angeles.
The court acknowledged K.M.'s objection "that this parenting plan will disrupt plans to keep [R.J.] in a single preschool in New Orleans and worse than that, she says, it will deprive [R.J.] of attending any preschool." The court determined that "it [was] not clear from the evidence that the latter assertion is categorically true, but it might be. . . . Once again as explained above, the [c]ourt's unenviable job here is to balance all of the varied and conflicting aspects of this family's complicated situation, including difficult tradeoffs, to come up with a parenting plan meeting the statutory policies of the Family Code."
The court declined to make a holiday or vacation schedule on the ground that the parties did not have sufficient financial resources for travel apart from the parenting plan. The court ordered that R.J. have a 10-minute video conference with the noncustodial parent each day R.J. was not traveling.
The court stated the parenting plan orders were not intended to be final, Montenegro orders, and could be modified in the future under the best interest standard. The court acknowledged that once R.J. is enrolled in school full time, the orders "plainly will not be in [R.J.]'s best interest" and "will have to be modified because she will need to reside in one locale during school time." The court recognized its order may be viewed as "simply defer[ring] yet another long and expensive 'move away' evidentiary hearing in order to obtain final orders." Nonetheless, it declined to issue final orders for two reasons. First, the evidence before the court was "not sufficiently robust" to make a final decision about R.J.'s residence for the foreseeable future. The court found that "[t]hese parents may well decide, with more information and time, that the opportunities open to [R.J.] in the future are indeed better in Los Angeles than New Orleans." Second, the court stated "there is a not-insignificant chance these parents will rise to [the] challenge of co-parenting now that this initial battle has been waged and concluded."
On August 14, 2019, the family court issued a judgment on the bifurcated custody issues reflecting its rulings as set forth in the July 22, 2019, statement of decision.
K.M. timely appealed the judgment.
On August 16, 2019, K.M. petitioned this court for a writ of mandate/prohibition, which was denied. On November 5, 2019, K.M. filed a petition for writ of supersedeas requesting a stay of the August 14, 2019, judgment, which was summarily denied on February 11, 2020.
DISCUSSION
A. The Family Court Did Not Abuse Its Discretion in Declining to Make a Permanent Custody Award
1. Legal Framework and Standard of Review
K.M. argues the family court erred in failing to make a permanent custody award upon her move to New Orleans. We disagree.
"In an initial custody determination, the trial court has 'the widest discretion to choose a parenting plan that is in the best interest of the child.' [Citation.] It must look to all the circumstances bearing on the best interest of the minor child." (In re Marriage of Burgess (1996) 13 Cal.4th 25, 31-32, quoting Fam. Code, § 3040, subd. (b).) "In making a determination of the best interests of a child, a trial court should consider various factors, including: the health, safety, and welfare of the child (§ 3011, subd. (a)); the nature and amount of contact with both parents (§ 3011, subd. (c)); and which parent is more likely to allow the child frequent and continuing contact with the noncustodial parent (§ 3040, subd. (a)(1))." (F.T. v. L.J. (2011) 194 Cal.App.4th 1, 20.) A parent seeking to change a temporary custody order need not prove changed circumstances, and there is no presumption that the existing custody arrangement is the appropriate one. (See id. at pp. 19-20.)
Subsequent unspecified statutory references are to the Family Code.
In applying the best interests analysis in a proposed relocation or "move-away" context, a court ordinarily should consider "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." (LaMusga, supra, 32 Cal.4th at p. 1101.)
The standard of appellate review of custody and visitation orders is the deferential abuse of discretion standard. (In re Marriage of Burgess, supra, 13 Cal.4th at p. 32.) "The precise measure is whether the trial court could have reasonably concluded that the order in question advanced the 'best interest' of the child." (Ibid.) "[A] discretionary decision may be reversed if improper criteria were applied or incorrect legal assumptions were made." (F.T. v. L.J., supra, 194 Cal.App.4th at p. 15.)
2. The Family Court Was Not Required to Issue a Permanent Order
K.M. has not demonstrated that a family court must issue a permanent custody order in a move away context. Rather, a court has wide discretion to fashion an order that is in the best interests of the child. (See LaMusga, supra, 32 Cal.4th at p. 1095 [applying the best interest of the child standard in fashioning a custody order in a move-away context]; In re Marriage of Burgess, supra, 13 Cal.4th at pp. 31-32 [applying the best interest of the child standard in fashioning an initial custody order].) Here, the family court's statement of decision reflects a careful and meticulous analysis of the factors to be considered under LaMusga and sections 3011 and 3040. The family court concluded that neither parent was unfit; that both parents were capable, responsible and loving toward R.J.; and "that both parents, in [R.J.]'s best interest, should have prominent and important roles, and frequent and continuing contact, in [R.J.]'s life." In other words, a temporary split custody plan was in R.J.'s best interest.
K.M. relies on Mark T. v. Jamie Z. (2011) 194 Cal.App.4th 1115 and Brody v. Kroll (1996) 45 Cal.App.4th 1732, to support her position. Neither case dictates a different result. In Mark T., the trial court denied the mother's request to relocate to Minnesota because it determined the move would be detrimental to the child's relationship with his father. (Mark T., supra, at p. 1124.) The appellate court observed that " '[t]he question for the trial court is not whether the parent may be permitted to move; the question is what arrangement for custody should be made [. . . when the parent moves]. [Citation.]' [Citations.]" (Id. at p. 1126.) In Mark T., "[t]he trial court . . . avoided the ultimate question, i.e., what custody arrangement would be in [the child's] best interests," upon the mother's relocation, and instead "appear[ed] to have been under the misimpression that it could coerce [the mother] into remaining in San Diego through its custody order." (Id. at p. 1128.) Here, the family court acknowledged K.M.'s move to New Orleans and carefully crafted a custody arrangement based on her relocation. The family court did not run afoul of the principles articulated in Mark T.
In Brody, the trial court granted the mother's request to relocate. However, the trial court entirely declined to consider the father's request for a change of custody to maintain the child's residence in California on the basis that the father did not provide the required notice. (Brody v. Kroll, supra, 45 Cal.App.4th at p. 1735.) The appellate court concluded that, "[u]nder these circumstances, the court should have determined whether it was in [the child's] best interest to give the mother virtual sole custody and allow her to take the child to Connecticut." (Id. at p. 1737.) A similar blanket failure to consider a modification of the parties' custody arrangements did not occur here. To the contrary, the family court conducted a thorough analysis of the parties' contentions and the best interest factors.
K.M. argues the family court applied the wrong standard because the parties did not share joint physical custody at the time she sought the move away order. K.M.'s argument, in effect, demands that the family court assign greater weight to her role as R.J.'s primary caregiver. "The weight to be accorded to such factors must be left to the court's sound discretion," and an appellate court may not "substitut[e] its judgment for that of the superior court." (LaMusga, supra, 32 Cal.4th at p. 1093.) As summarized above, the family court considered and weighed K.M.'s role as primary caregiver along with all the other factors in reaching a decision in R.J.'s best interest.
Moreover, due to R.J.'s young age, this factor does not weigh as heavily in K.M.'s favor as she contends. With infants, it is customary that one parent serves as the primary caregiver and that visitation with the other parent increases as the child becomes older. "Extended visitation at infrequent intervals may not be 'reasonable' with regard to infants or toddlers. Child psychologists and other experts in this area suggest that, from a developmental perspective, very young children should not be separated from their primary caretakers for long blocks of time. [Citations.]" (Hogoboom & King, Cal. Practice Guide: Family Law (The Rutter Group 2020) ¶ 7:486.1.) As the child grows older, and the child can spend more time away from the primary caregiver, the court may review and modify custody. (See In re Marriage of Edlund & Hales (1998) 66 Cal.App.4th 1454, 1474 [concluding in a move-away case with a child of a "tender age" that it was not an abuse of discretion to increase the length of the child's visits with the father while decreasing the frequency of the visits, and observing that the order could be modified as the child grew older and could spend more time away from her primary caretaker].) The family court's expansion of A.J.'s parenting time as R.J. grew was consistent with these precepts.
K.M. contends the family court also "incorrectly assum[ed] a joint physical custody parenting arrangement was an option." However, K.M. does not identify any legal authority for the proposition that the family court could not order such an arrangement if it was in the child's best interest. Here, given R.J.'s age at the time of the judgment and the evenly balanced factors, the family court was well within its discretion to issue a custody order that increased A.J.'s parenting time to approximate an equal time share.
B. The Family Court Did Not Improperly Consider the Possibility that K.M. Might Move Back to Los Angeles
K.M. argues the family court "expressly considered [K.M.] moving back to Los Angeles might be an option in the future in making its order, . . . used that premise to avoid making a permanent custody decision," and sought to coerce her to relocate to Los Angeles. K.M. does not cite—and we are not able to identify—any such express consideration in the statement of decision or the judgment. Rather, the family court stated that the parents might decide, in the future, that it would be in R.J's best interest to attend school in Los Angeles.
This statement does not invoke the prohibition against coercing a custodial parent to forego relocating. (See LaMusga, supra, 32 Cal.4th at p. 1098.) Instead, it reflects the family court's attempt to foster a collaborative parenting relationship by suggesting the parents might find common ground on an important issue as time progressed. Rather than criticize the family court, we commend its attempt to encourage the parties to resolve their disagreements in a harmonious manner, which will serve their daughter's best interest in the long run by minimizing her exposure to conflict.
C. The Family Court Did Not Fail to Consider Mandatory Factors in Issuing its Custody and Visitation Orders
K.M. argues the family court failed to consider several mandatory factors in making its custody and visitation orders. First, K.M. contends "the court failed to consider continuity and stability for the child." In particular, she observes that she has been the primary custodian for R.J. throughout her life and "had de facto sole custody prior to her relocation to New Orleans, which the trial court gave no weight in its move-away determination, finding it a 'neutral' factor."
Contrary to K.M.'s assertion that she "had de facto sole custody," the record shows that prior to moving to New Orleans in August 2018, R.J. had frequent weekly contact with A.J., which increased over time to weekly daytime and overnight visits beginning in September 2017. As described above, given R.J.'s young age, in the absence of facts showing that doing so was against R.J.'s best interest, gradually increasing A.J.'s parenting time would have been customary. (See Hogoboom & King, Cal. Practice Guide: Family Law, supra, ¶ 7:486.1.) Accordingly, we do not find the family court's treatment of this factor as "neutral" to be an abuse of discretion.
Second, K.M. contends substantial evidence does not support the family court's finding that A.J. was more likely to facilitate visits between K.M. and R.J. In support of her argument, K.M. cites 10 examples why A.J. should not be deemed the "friendly parent." In doing so, K.M. misapprehends the standard of review.
We review the family court's factual findings for substantial evidence, in the light most favorable to the judgment. (S.Y. v. Superior Court (2018) 29 Cal.App.5th 324, 334.) It is not the function of a reviewing court to reweigh the evidence, reevaluate the credibility of witnesses, or redetermine factual conflicts, as those functions are committed to the trier of fact. (People v. Culver (1973) 10 Cal.3d 542, 548.) "[W]e are guided by the principle that '[t]he testimony of a single witness is sufficient to uphold a judgment even if it is contradicted by other evidence . . . . [Citations.]' [Citation.]" (People v. Whitmer (2014) 230 Cal.App.4th 906, 924.)
Here, substantial evidence supported the family court's finding that A.J. would be more likely to facilitate visits between R.J. and K.M. For example, A.J. testified that he "ha[d] a protocol on weekends . . . when [he] return[ed] [R.J.] back to [K.M.]. [He and R.J.] stop[ped] for ice cream on the way to the police station [where the exchange occurred], and it's part of a ritual event." He advised R.J. that it was "[t]ime to go to see Mommy. Let's get ice cream. Yay, yay, yay, just making a happy place." He would tell R.J., "It's going to be great," "There's Mommy. . . . There she is waiting for you. She loves you." A.J. testified he "introduced time to go back to Mommy as a joy filled, wonderful thing" and that R.J. "loves her mom." A.J. testified that, in contrast, when K.M. would drop R.J. off for visitation with him, K.M. and the maternal grandmother would behave as though they were part of a funeral procession. Further, we note the family court did "not credit [K.M.]'s contention she has tried ceaselessly and selflessly to foster and increase [A.J.]'s parenting time."
Third, K.M. argues the family court erred in not requiring that she and A.J. participate in mandatory mediation prior to adjudicating their custody dispute. Pursuant to section 3170, subdivision (a), "[i]f it appears on the face of a petition, application, or other pleading to obtain or modify a temporary or permanent custody or visitation order that custody, visitation, or both are contested, the court shall set the contested issues for mediation." However, this statutory mandate is satisfied upon an initial submittal of a contested custody or visitation case to mediation. If the mediation is unsuccessful, resubmission to mediation lies within the trial court's discretion. (See In re Marriage of Green (1989) 213 Cal.App.3d 14, 25 ["When mediation is unsuccessful in resolving the custody or visitation dispute, the statutory requirement has been met and a resubmittal to mediation need not be ordered at the request of a party upon trial of that dispute. The trial judge possesses considerable discretion to determine whether the facts and circumstances of a case justify a further use of this precious and overtaxed resource"].) Here, the family court found the parties had participated in mediation on November 5, 2015, and that further mediation would have been "fruitless and futile." K.M. does not make any argument to the contrary.
Fourth, K.M. contends the family court failed to consider her allegations of domestic abuse by A.J. as required by section 3011. However, in August 2016, the court conducted a multi-day evidentiary hearing on K.M.'s domestic violence allegations. Following the hearing, the court concluded that K.M. did not satisfy her burden to prove that A.J. committed acts of abuse and denied a permanent restraining order. Accordingly, the family court did not err in failing to consider K.M.'s unproven allegations of domestic abuse in weighing the best interest factors.
Finally, K.M. argues the family court erred by failing to schedule visitation for holidays. However, the family court expressly stated that it declined to set a holiday schedule "because the [c]ourt does not believe that the parties have sufficient financial resources for travel apart from the parenting plan/parenting time order set out [in its statement of decision]." Indeed, on more than one occasion during the trial, K.M. represented to the court that she did not have sufficient funds to facilitate the necessary travel between New Orleans and Los Angeles. Accordingly, K.M. does not demonstrate the family court abused its discretion in declining to schedule further travel for holidays.
DISPOSITION
The August 14, 2019, judgment is affirmed. A.J. is to recover his costs on appeal.
NOT TO BE PUBLISHED
Judge of the San Luis Obispo County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution. --------
CHANEY, J.
BENDIX, Acting P. J.