Law Office of Deborah E. Brady-Davis and Deborah E. Brady-Davis for Appellant. Bacinett Law Offices and Hilary I. Boyer 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. ED96376) APPEAL from an order of the Superior Court of San Diego County, Robert O. Amador, Judge. Affirmed. Law Office of Deborah E. Brady-Davis and Deborah E. Brady-Davis for Appellant. Bacinett Law Offices and Hilary I. Boyer for Respondent.
In this "move-away" case, the family court found a one-year-old boy's mother had always been his primary custodian, that the mother's plan to move to Texas was made in good faith and not for the purpose of interfering with the father's relationship with his son and that it was in the child's best interest to maintain the existing custody arrangement. Contrary to the father's argument on appeal, the family court's findings are fully supported by the record and the record shows he received both a reasonable opportunity to mediate the controversy and to prepare for a hearing on his objection to the move. The record also shows the family court did not abuse its discretion in denying his request for a custody evaluation.
FACTUAL AND PROCEDURAL BACKGROUND
Nkosi Alkebulan was born on October 7, 2014. His father, appellant Adisa Alkebulan, and his mother, respondent Lakena Dunham, had a romantic relationship before Nkosi's birth and at a time Dunham was separated from her husband. In addition to Nkosi, Dunham has two older children who live with her. Although he never lived with Dunham either before or after Nkosi's birth, much to his credit, Alkebulan was very anxious to be an active and engaged parent. Nonetheless, during the first five months of Nkosi's life, Dunham permitted Alkebulan very limited visitation and no overnight visits. When Nkosi was five months old, he began spending one night a week with Alkebulan and during the day on four days.
In May 2015, Dunham mentioned she was thinking about moving to Dallas with Nkosi. However, in early June, when Nkosi was eight months old, Dunham agreed that Alkebulan could have three overnight visits each week.
Later in June 2015, shortly after Alkebulan's visitation was expanded, Dunham once again told Alkebulan that she was thinking of moving to Dallas because she could no longer afford to live in San Diego. Promptly after Dunham's second statement about moving away, on June 25, 2015, Alkebulan filed a request for an order (RFO) establishing his parentage and providing for shared custody and visitation.
In light of Alkebulan's RFO, the trial court scheduled a mediation hearing for July 17, 2015. On the morning of the mediation, Dunham filed her own RFO in which she asked for an order permitting her to move to Texas. When Dunham appeared at the mediation, she called her attorney who spoke to the mediator in the presence of both Dunham and Alkebulan. The mediator then stated Dunham would be filing an RFO seeking permission to move. Thereafter, in conducting the mediation, the mediator discussed with the parties Dunham's request to relocate with Nkosi. The mediator stated that she did so to save the parties the inconvenience of being required to return for a second mediation. Although the mediator acknowledged that Alkebulan had been very anxious to participate in his son's upbringing and had done so as fully as possible, the mediator found that nonetheless Dunham had been the child's principal caretaker for most of his young life and that the custody arrangement should not be disturbed. Accordingly, the mediator recommended that the family court approve Dunham's relocation and provide ample visitation for Alkebulan.
On September 9, 2015, the trial court conducted a hearing on the parties' respective RFO's. The trial court determined Alkebulan was Nkosi's father and set an evidentiary hearing on Dunham's move away RFO for October 30th. The court also denied Alkebulan's request for an expert custody evaluation.
Prior to and at the October 30, 2015 evidentiary hearing, Dunham presented testimony that she had reconciled with her husband, that his employment required that he move to Texas, that he had purchased home there and that she, Nkosi and her other children could live there. She also presented evidence that Nkosi would be near extended family members in Texas. The trial court determined Dunham was Nkosi's principal caretaker, that she had good-faith reasons for moving and that Alkebulan had not shown that there was any urgent reason to alter the existing custody arrangement. Accordingly, the trial court granted Dunham's RFO but provided Alkebulan with monthly weekend visitation, as well as extended visitation during the summer and holidays.
The basic legal principles we apply in cases where a parent plans to move away from the community where the child's other parent lives were set forth in In re Marriage of Burgess (1996) 13 Cal.4th 25, 37-40 (Burgess). Under Burgess, a court must first determine what in fact is the existing custody arrangement. In Burgess, although there was a temporary custody order in place, no permanent custodial order had been made. Where, as here, there is no permanent custodial order, the family court must make one that is in the best interest of the child. (See id. at pp. 31-33.) In making that initial custody determination in the context of one parent's prospective relocation, "the trial court must take into account the presumptive right of a custodial parent to change the residence of the minor children, so long as the removal would not be prejudicial to their rights or welfare." (Id. at p. 32.) Moreover, in the context of making an initial custody determination, "the paramount need for continuity and stability in custody arrangements--and the harm that may result from disruption of established patterns of care and emotional bonds with the primary caretaker--weigh heavily in favor of maintaining ongoing custody arrangements." (Id. at pp. 32-33.)
In requiring that a court's focus be on preserving the existing custody arrangement, even if the parent with primary custody moves to a new location, the court expressly recognized the realities of our mobile society: "Amici curiae point out that approximately one American in five changes residences each year. [Citation.] Economic necessity and remarriage account for the bulk of relocations. [Citation.] Because of the ordinary needs of both parents after a marital dissolution to secure or retain employment, pursue educational or career opportunities, or reside in the same location as a new spouse or other family or friends, it is unrealistic to assume that divorced parents will permanently remain in the same location after dissolution to exert pressure on them to do so. It would also undermine the interest in minimizing family decisionmaking by second-guessing reasons for everyday decisions about career and family." (Burgess, supra, 13 Cal.4th at pp. 35-36.)
"It is well settled that the standard of review for custody and visitation orders, including move-away orders, is whether the trial court abused its discretion." (In re Marriage of Lasich (2002) 99 Cal.App.4th 702, 714.) "The precise measure is whether the trial court could have reasonably concluded that the order in question advanced the 'best interest' of the child." (Burgess, supra, 13 Cal.4th at p. 32.) " 'The abuse of discretion standard affords considerable deference to the trial court, provided that the court acted in accordance with the governing rules of law.' " (Kayne v. The Grande Holdings Limited (2011) 198 Cal.App.4th 1470, 1474-1475.) In child custody cases, "[g]enerally, a trial court abuses its discretion if there is no reasonable basis on which the court could conclude its decision advanced the best interests of the child." (F.T. v. L.J. (2011) 194 Cal.App.4th 1, 15.) An abuse of discretion may also be found when the trial court applied improper criteria or made incorrect legal assumptions. (Ibid.) "When applying the deferential abuse of discretion standard, 'the trial court's findings of fact are reviewed for substantial evidence, its conclusions of law are reviewed de novo, and its application of the law to the facts is reversible only if arbitrary and capricious.' " (In re C.B. (2010) 190 Cal.App.4th 102, 123.)
The record on appeal fully supports the trial court's resolution of the two issues presented under Burgess: 1) at the time of the trial court's hearing, Dunham was the principal caretaker of 12-month-old Nkosi, and it was in his best interest that that custody arrangement be maintained; and 2) Dunham's motivation for moving to Texas was a good-faith effort to provide a better living situation for herself and her children.
Although it is true that in the period prior to the hearing Dunham had extended Alkebulan's visitation to three nights a week, nonetheless, at the time of the hearing, Nkosi was still very much an infant and had been, for most of his very young life, principally in the care of his mother. In particular, we note Nkosi's parents never lived together with him and there is no dispute that, until he was eight months old, Dunham had been the child's primary caretaker and that, thereafter, Dunham began to share more custody with Alkebulan. These circumstances fully support the family court's conclusion that maintenance of the existing custody arrangement was in Nkosi's best interest, notwithstanding Dunham's willingness to extend Alkebulan's visitation as the child approached his first birthday and notwithstanding her plan to move to Texas.
In this regard, the facts and disputed issues are readily distinguishable from those considered in Brody v. Kroll (1996) 45 Cal.App.4th 1732, 1736, In re Marriage of Battenburg (1994) 28 Cal.App.4th 1338, 1342-1343 and In re Marriage of McGinnis (1992) 7 Cal.App.4th 473, 475. In Brody v. Kroll, the custody arrangement between the parties had been in place for a number of years, and, on appeal, the court found that it "could support" a determination that the parties had a joint physical custody arrangement; accordingly, the court remanded for a custody determination, which the trial court had expressly been unwilling to make. (Brody v. Kroll, supra, at pp. 475-476.) In In re Marriage of Battenburg and In re Marriage of McGinnis, both decided before Burgess, there was no dispute on appeal a joint parenting arrangement had existed for a substantial period of time. (See In re Marriage of Battenburg, supra, at p. 1342; In re Marriage of McGinnis, supra, at p. 475.) Here, of course, the more generous visitation Alkebulan enjoyed had only been in place for a relatively short period of time, and the trial court could reasonably conclude that it had not yet ripened into an arrangement that supported a permanent custody order giving him primary physical custody.
As we have indicated, the record also shows Dunham had reconciled with her husband, that he wished to move to Texas, and that she believed that she would not only be able to find affordable housing there, but that she would have a network of family support. These circumstances do not support Alkebulan's contention that Dunham was moving away as a means of interfering with his relationship with his son. Rather, they are substantial and good-faith reasons for relocating. (See Burgess, supra, 13 Cal.4th at pp. 35-36; In re Marriage of Battenburg, supra, 28 Cal.App.4th at p. 1342; In re Marriage of McGinnis, supra, 7 Cal.App.4th at p. 476.)
In sum, the record supports the family court's order finding that Dunham had primary physical custody of Nkosi and that maintenance of that arrangement was in his best interest, notwithstanding her plan to move to Texas. (Burgess, supra, 13 Cal.4th at pp. 32-33.) Because Nkosi seemed to be doing well in his mother's custody, and there is nothing in the record which suggests the move to Texas posed any undue risk to him, on appeal we are bound by the family court's determination of his best interest. (Id. at p. 32.)
Although the record fully supports the trial court's order permitting Dunham to relocate, Alkebulan nonetheless argues the order must be reversed because he was not given a fair opportunity to oppose Dunham's request for a move-away order.
First, Alkebulan argues he was not given proper notice Dunham's plan to move away would be discussed at the July 17, 2015 mediation. Alkebulan points out that Dunham and her counsel only provided the mediator with verbal notice of her pending RFO at the commencement of the mediation, and the mediation was then devoted principally to discussion of Dunham's relocation.
Quite understandably, Alkebulan, who was not represented by counsel at the mediation, felt somewhat blindsided by the mediator's decision to discuss the move away at the mediation. As he points out, without prior notice he was in no position to consider the impact of the move away, possible alternatives to it, and conditions which might ameliorate its impact on the parties and Nkosi. However, as we have noted, the July 17 mediation was set in response to Alkebulan's earlier RFO, which both he and his counsel conceded he filed in response to Dunham's still earlier statement to the effect she was planning to move out of state. Thus, given the circumstances which generated Alkebulan's RFO and the mediation, the mediator's willingness to pursue discussion of the move away so that the parties did not have to return for a second mediation, is also understandable.
More importantly, even if the mediator erred in going forward with the mediation on July 17, at the later September 9, 2015 hearing, the trial court offered to send the parties back to mediation and Alkebulan declined because the trial court was unwilling to assign the case to a different mediator. Contrary to Alkebulan's argument, the trial court did not abuse its discretion in refusing to provide Alkebulan with a different mediator. Given the role Dunham's plan to relocate played in originating Alkebulan's RFO, the mediator's decision to discuss relocation on July 17, rather than have the parties return at another time, did not manifest a bias toward Alkebulan which prevented her from presiding over any further mediation. Thus, the trial court's offer of further mediation was proper, and, in declining the trial court's offer to cure any defect in notice, Alkebulan was estopped to raise that defect on appeal. (See Rinehart v. First Cupertino Co. (1957) 154 Cal.App.2d 842, 844 [no right to raise issue on appeal when trial court offers to correct error and appellant declines offer]; 9 Witkin, Cal. Procedure (5th ed. 2008) Appeal, § 397, pp. 454-455.)
More broadly, the record here—in which Dunham's RFO was filed on July 17, 2015 and the subject of a hearing on September 9, 2015, and a fuller evidentiary hearing on October 30, 2015—is in marked contrast to the record in In re Marriage of McGinnis, in which a parent gave notice of her plan to move and received an order permitting her to do so within 30 days and apparently without any meaningful mediation of the issue. (In re Marriage of McGinnis, supra, 7 Cal.App.4th at pp. 477-478.) On that record, the Court of Appeal found that the objecting parent had not been given an adequate opportunity to prepare and present his case. (Ibid.) Here, Alkebulan had more than 90 days to prepare and present his case.
2. Custody Evaluation
In denying Alkebulan's request for a custody evaluation at the September 9, 2015 hearing, the family court found that evidence from people who had contact with the parties and the child would provide a better estimation of what should occur and stated: "Frankly, I sincerely doubt that some psychologist can come in here and tell me that they can read the tea leaves and tell me that an 11 month old is more bonded one way or another to either parent."
Although the court had discretion to order such an evaluation under Family Code section 3111 and Evidence Code section 730, as Dunham points out, such an evaluation is not required. (See Harris v. Harris (1960) 186 Cal.App.2d 788, 801.) Given Nkosi's tender age and evidence available from percipient witnesses about the parties' care for and relationship with Nkosi, we find no abuse of discretion in the family court's ruling.
The family court's order is affirmed. Dunham to recover her costs of appeal.
BENKE, Acting P. J. WE CONCUR: O'ROURKE, J. DATO, J.