ORDER MODIFYING OPINION AND DENYING REHEARING
[NO CHANGE IN JUDGMENT] THE COURT:
It is ordered that the opinion filed herein on November 27, 2019 is modified as follows:
On page 44, "When asked by the court about her potential witness list at the hearing," is added to the beginning of the second sentence of the first full paragraph and a footnote is added at the end of the sentence so that it now reads:
When asked by the court about her potential witness list at the hearing, mother did not assert that any of the "potential" witnesses were ready to give testimony that was germane to the school choice decision or that she was constitutionally entitled to present that testimony as a matter of due process.18
18 Toward the end of hearing on the school choice issue, mother's counsel told the court that he had no further questions for mother and did not intend to call
any other witnesses. It was only after the court sought to confirm that the parties were resting on that issue that mother's counsel said that mother's older son was in the courtroom and ready to testify. As indicated, the trial court expressly concluded that his prospective testimony as described in mother's potential witness list was irrelevant to the school choice issue.
The numbering of footnotes following new footnote 18 is adjusted accordingly.
On page 44, the word "all" is added to the first sentence of the second full paragraph so that it now reads:
Even assuming arguendo that all the individuals on mother's potential witness list had been subpoenaed and were ready to testify as live witnesses at the August 1, 2018 hearing—which does not appear to be true—and that she had a due process right to present relevant evidence of significant probative value, she forfeited her appellate contentions regarding any failure to hear their testimony by agreeing, through her counsel, to the procedure proposed by the court without preserving any claim that she was entitled to call them as witnesses at that hearing.
On page 47, a citation is added at the end of the third full sentence of the initial, partial paragraph so that it now reads:
" '[A]n examiner's question asking a lay witness to testify to facts that the witness has not personally observed, or to state an opinion not based on his or her own observations, calls for speculation and conjecture by the witness and is prohibited by' Evidence Code sections 702 and 800. [Citation.]" (People v. Rodriguez (2014) 58 Cal.4th 587, 631; see People v. Jones (2017) 3 Cal.5th 583, 602 [" '[W]hen a lay witness offers an opinion that goes beyond the facts the witness personally observed, it is held inadmissible.' [Citation.]"].)
There is no change in judgment.
The petition for rehearing is denied.
ELIA, ACTING P. J.
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. (Santa Clara County Super. Ct. No. 2005-1-FL-129664)
In this case, mother Lauren Herbstman (mother) appeals from two family court orders after judgment: (1) a written order filed September 5, 2018 following a hearing on August 1, 2018 and (2) a written order filed on October 23, 2018 following a hearing on August 27, 2018. (Code Civ. Proc., § 904.1, subd. (a)(2).) Adam Blum (father) had requested that the court modify its final custody orders to provide that (1) their son (son) attend Scotts Valley High School (SVHS) as a freshman, beginning in the 2018-2019 school year; (2) father have physical custody of son Monday through Friday during the school year; (3) mother have son on alternating weekends; and (4) father have permanent legal custody of son.
For years son had attended school in Danville where his mother lived. The final custody orders, which had been filed in February of 2015, provided for joint legal and physical custody; recognized that son attended school in Danville, California and lived primarily with mother during the school year; and provided for father to have custody of son for spring break and the majority of the summer. Those orders also provided for each parent to have custody of son during certain holiday and vacation periods for half of the time or in alternate years.
In the initial order being challenged, the court selected SVHS, as requested by father, over San Ramon Valley High School (SRVHS) in Danville, as urged by mother, as the high school that son would attend as a freshman. In the subsequent order being challenged, the court modified the custodial time-sharing schedule to provide for son to be in father's physical custody during the school year, except that mother would have custody of son from "every Wednesday pick up at school until Thursday drop off at school and on the 2nd, 4th, and alternating 5th weekends of the month from pick up at school on Friday to drop off on Sunday at 5:00 [p.m.]" Except as so modified, the final custodial time-sharing orders remained in full force and effect, including with respect to spring break, other vacation and holiday periods, and the summertime.
Mother claims that the court committed a multitude of errors that require reversal of those orders. She asks this court to "permit [son] to return to [her] residence to attend high school in Danville forthwith."
We affirm the September 5, 2018 order that determined the high school that son would attend. However, we reverse the October 23, 2018 order insofar as it modified the final custodial time-sharing arrangements because those modifications resulted in a de facto change in the form of physical custody from joint to sole. We remand for further proceedings consistent with this opinion.
Procedural History and Background
The parties proceeded by way of appendixes in lieu of a clerk's transcript.
In its "Statement of Decision and Order" filed February 25, 2015, the court made final custody orders for son and addressed mother's relocation with son to Danville. The court found that mother lacked credibility and had improperly refused to follow court orders. The court found a "convincing" "pattern of evidence" that mother was excluding father "however she [could]" and that her "willingness to share" son was "illustrated by her motion to move to Danville." The court further found that mother's motion to move to Danville was brought in bad faith and was primarily motivated by a desire to frustrate "visitation" between son and father. Nevertheless, the court declined to order mother to return son to Los Altos because son was well adjusted and doing well in Danville.
The court also found that mother had "acted, on numerous occasions, to minimize and marginalize [f]ather." It determined that mother had made meritless allegations of domestic violence, which were also an attempt to frustrate son's relationship with father. The court found that mother was a "gatekeeper" and that she alienated son from father and manipulated son against father. It found that it was in son's best interest to have father "substantially involved in an equal part of [son's] life."
In the February 2015 order, the court granted the parties joint legal custody, joint physical custody, and "equal parenting time with [son]." In addition, it ordered the parents to "share equally in [son's] health, welfare, and educational decisions." The court found that a parent coordinator was needed to "reduce the drama and tension" in the family.
In a separate written order filed February 25, 2015, the court reiterated that the parents shared joint physical custody of son. The order stated that "the child will share residence with [m]other and [f]ather equally, as far as possible." It set the custodial time-sharing schedule for the parties, recognizing that since son attended school in Danville and lived primarily with mother during the school year, it was necessary to allot the majority of the summer time with son to father. Son was scheduled to be with father on "every first, third, and fifth weekend of the month, from Friday release from school until Monday return to school" and on"every Wednesday, from the end of the school day, until return to school Thursday morning." In addition, it provided that father had custody of son during spring break "every year from the day school ends for the holiday until school resumes." The order generally provided that each parent would share other holiday periods, including Jewish holidays, or have son in alternate years. Mother had son for the weekend of Mother's Day, and father had son for the weekend of Father's Day. As to legal custody, the order provided: "The parents shall share joint legal custody of the minor child. Parents shall share in the decision making related to medical, educational, and all other decisions related to the child's welfare."
The February 25, 2015 order specifically provided: "Father shall have custody of the child for the majority of the summer. Father's custody time with the child shall begin on the FIRST day that school is out and continue for two consecutive weeks. Mother shall then have one week of custody time with the minor child. The schedule will then change with three consecutive weeks of custody time with [f]ather and one consecutive week with Mother. The stated schedule of three weeks with [f]ather and one week with [m]other shall continue until school begins, with [m]other having the minor child the last three (3) days before school begins."
The February 25, 2015 order further provided for the appointment of a mental health professional to serve as a parent coordinator, who would make recommendations when son's parents were unable to agree. It required the coordinator's fees to be paid equally by the parties unless the coordinator found that one of the parties was being unreasonable and assigned the fees to the unreasonable party. The court also ordered the parties to undergo co-parent counseling, at least 24 sessions within 12 months, to help each parent understand his or her role in their conflict. The parties were made equally responsible for payment of the counselor. A process was established in the event the parties could not agree on a licensed mental health professional to serve as the co-parent counselor.
The February 25, 2015 order expressly stated that it was "a final judicial custody determination and a long-term custody plan." The order further stated that "[i]t shall only be modified upon the written agreement of the parties or a showing of a significant change of circumstances."
After a hearing on March 30, 2017, the court issued an order appointing a co-parent counselor, Dr. Mary Day Rolison. Mother was ordered to "meet with Dr. Rolison forthwith." The dispute resolution process established by the court order required the parties to first discuss an issue with the co-parent counselor, who would determine whether the issue was ready to be addressed by the parent coordinator. The order specified that once the co-parent counselor referred the issue to the parent coordinator, the parent coordinator would make recommendations to the court.
The court ordered an emergency screening for September 21, 2017 after father filed a "Request for Order" because mother allegedly was preventing son from seeing him, had hired security guards who barred father from attending son's bar mitzvah in August 2017, and was purposefully alienating son from him. In late September 2017, after the court-ordered emergency screening by a licensed clinical social worker, the court issued extensive parental conduct orders. The court ordered mother to begin mental health therapy for the purpose of "learn[ing] how to support the child's relationship with the father [while] continu[ing] to advocate for her child." The court also ordered individual therapy for father and reconnection counseling to strengthen the father-son relationship. The parents were ordered to continue co-parent counseling with Dr. Rolison. The court did not alter its previous orders for joint physical and joint legal custody.
The court appointed Elise Mitchell to represent son, and she accepted the appointment.
A review hearing was held on October 12, 2017. In its findings and order after hearing, the court clarified that the February 25, 2015 orders governed "current custody and visitation."
After a hearing on November 16, 2017, the court ordered that father would have son for the 2017 Thanksgiving holiday, that son would leave court with father that day, and that father would temporarily have custody of son for all days when son did not have school. The court ordered reconnection therapy to continue.
Following a status conference on November 27, 2017, the court appointed a therapist for son and a new parent coordinator, Dr. Nancy Read.
After a review hearing on December 20, 2017, the court ordered that father would have son for the entire winter break, except for a period extending over two days; every weekend from his Friday pickup of son at school to his Monday return of son to school; and every Wednesday from his pickup of son at school to his Thursday return of son to school.
By request for order, father asked the court to order, among other things, that mother pay certain amounts to the parent coordinator, Dr. Read; son's therapist; the co-parent counselor, Dr. Rolison; and son's counsel, and that a writ of execution issue on any of mother's bank accounts if she failed to timely pay. Father asserted in his declaration that mother's "refusal to pay the professionals in this case [was] further evidence of alienation" and was "making [his] reconnection efforts with [son] more difficult." He stated that mother "continues to refuse to pay Dr. Melville, Dr. Rolison[,] and Elise Mitchell, despite court orders requiring her to do so." According to father's declaration, mother had "not completed any forms or made payment to" son's therapist to enable son's scheduled therapy to go forward.
Although mother had been ordered to pay half the costs and fees of various professionals providing services to the parties in this case, by request for order filed January 26, 2018 mother asked the court to "apportion" the fees of minor's counsel and other custody professionals according to each party's ability to pay and set a hearing for March 5, 2018. In her memorandum of points and authorities, she indicated that she had not been able to pay her full court-ordered share of those fees.
Minor's counsel sought an emergency hearing and either a change in custody to father or the placement of son in protective custody because of the "high conflict situation" and her "grave concerns about the turmoil . . . created in [son's] life" and the pressure placed upon him by mother. She indicated that mother was not paying the co-parent coordinator. She agreed with father's declaration as to the "nonpayments to the mental health professionals" and her.
At a hearing on March 5, 2018, Dr. Julie Melville, the reconnection therapist, was sworn and examined by father's counsel. Her report dated March 1, 2018 was admitted into evidence. The motion of minor's counsel and other motions were continued until March 19, 2018.
By request for order filed on March 15, 2018, minor's counsel sought an order granting temporary sole legal custody to father to facilitate individual therapy for son and the continuation of reconnection therapy between father and son. In her supporting declaration, minor's counsel indicated that certain actions, including mother's failure to pay Dr. Melville, the attempt of mother's counsel to schedule a deposition of Dr. Melville and her counsel's hiring of an expert to critique Dr. Melville, had interrupted that therapy. Minor's counsel reported that son had "a trusting relationship with Dr. Melville and [that son] work[ed] well with him," that Dr. Melville had "revealed on Monday many concerning statements from [son] that do not bode [sic] [m]other in a good light," and that "[t]hose statements suggest that [m]other is causing severe emotional distress to [son] such that he has now admitted that [m]other participated in the very negative [b]ar [m]itzvah speech h[e] gave in August 2017 . . . ." Minor's counsel indicated that son needed "mental health intervention and support" because of the emotional turmoil resulting from mother's "want[ing] him to adhere to her agenda." Minor's counsel requested that the court grant temporary sole legal custody to father so that he could "immediately implement individual therapy for [son] and also so that Dr. Melville [could] continue her work . . . ."
At a hearing on March 19, 2018, Dr. Melville further testified. The court heard mother's motion on reallocation of fees. The court found that the motion was premature, apparently because she had not yet filed for bankruptcy. Following the hearing, the court denied the request of minor's counsel for a protective custody order. But it issued temporary orders granting sole legal custody to father and making son's primary residence with father. The court denied mother's request for a child custody evaluation.
The written "Findings and Order After Hearing," which followed the March 19, 2018 hearing (not filed until June 12, 2018) contained the following temporary orders: (1) father temporarily had sole legal custody of son; (2) son's primary residence was with father; (3) son would finish his eighth grade year at his current school in Danville; and (4) son temporarily would be with mother "every Wednesday pick up from school through return to school Thursday," every second, fourth, and alternate fifth weekend (from his pickup from school on Friday through his return to school on Monday), and son would be with father at all other times. The order provided that on June 1, 2018, the schedule would "revert to the schedule as outlined in the [February 25, 2015] order." The order denied (1) the request of minor's counsel to place son in protective custody, (2) a request from father to deny mother "visitation," and (3) mother's request for a child custody evaluation. It also denied mother's request to reallocate responsibility for the payment of various fees as premature.
On March 22, 2018, a formal written order appointing Dr. Read as the new parent coordinator was filed. The order set forth (1) the process for dispute resolution with the parent coordinator and (2) the parent coordinator's authority to make recommendations to the court. The order included a provision regarding false accusations of child abuse: "Family Code Section 3027.1 (a) provides for a monetary sanction and attorney fees for any knowingly false allegation of child abuse made during [a] child custody proceeding. This section does not apply to a PC who reports an allegation made to him/her by a parent, child, or other third party, but does apply to the person making the allegation to the PC if the court finds that the initial allegation was made knowing that it was untrue."
In a request for order, dated April 9, 2018 and apparently filed April 10, 2018, father requested that the court make the "[c]hoice of school" for son. In his supporting declaration, father requested that the court order that (1) son, who was completing eighth grade, would attend SVHS in the fall of 2018; (2) father would have physical custody of son for the summer as specified in the court's February 2015 order; (3) once high school began, mother would have son on only alternating weekends and father would have physical custody of son Monday through Friday and impliedly on the remaining weekends; and (4) father would have permanent sole legal custody of son.
In a declaration dated April 11, 2018, minor's counsel explained that she had filed an ex parte request for an order placing son in protective custody based on "the extreme conflict between the parents." Minor's counsel further explained that she had then filed an ex parte request for an order awarding sole legal custody to father "so that [he] could be the decision maker regarding the important services for [her] client" because of mother's "unwillingness to properly complete the required forms" to obtain therapy for son. In the opinion of minor's counsel, "[t]he parents['] own personal and selfish desires to out do [sic] one another at any expense ha[d] allowed for this toxicity to continue and escalate." Minor's counsel "remained concerned that [m]other ha[d] elected to not pay the necessary professionals in this case" because that hampered the ability of those professionals to assist the family and support son.
In a responsive declaration filed on May 11, 2018, mother asserted that father's proposed change to the custodial time-sharing arrangements "requires a custody evaluation and/or a new trial." Mother further stated that the court "should rule only after a full custody trial and a custody evaluation." Mother asked the court to "deny [father's] request for order in its entirety . . . as there has been no change of circumstances . . . ."
At the hearing on May 24, 2018, minor's counsel informed the court that mother had commenced a bankruptcy proceeding and had listed her, Dr. Rolison, and Dr. Read as creditors. On the issue of school choice, minor's counsel reported that she had come up with the idea of son attending boarding school to allow him to have four years of peace. In her view, the "tug-of-war between the parents [was] not in [son's] best interest." When mother had spoken to son about the possibility of boarding school over Mother Day's weekend, son initially had been "quite excited" about the proposal because it "would lift stress off of him." Minor's counsel recognized that boarding school appeared to no longer be a viable option since mother had filed for bankruptcy. Further, she had received an email the previous day in which son had "recanted his position on boarding school." Minor's counsel reported that son was currently attending school in Danville, but son had told her that he found the drive from Scotts Valley to Danville to be a minor inconvenience. She reminded the court that mother had "corralled up a number of [son's] peers' parents to write declarations against dad" earlier that year. Minor's counsel indicated that "a clean slate" would be "the plus" of son attending high school in Scotts Valley, where that history would not follow him.
At the May 24, 2018 hearing, mother's counsel argued against uprooting son and asserted that the school choice decision was "akin to a moveaway motion." The court did not agree that "school selection" constituted "a moveaway." Father's counsel informed that court that freshman orientation at SVHS would take place on August 14, 2018 and that the school would begin on August 20, 2018.
During the May 24, 2018 hearing, the court told the parties and counsel that the they had a very "inflated idea" of the case, which was "simply unfair to the other cases before [the court]." The court told the parties, "[N]o case ha[d] more ex partes or use[d] more court time than your case." It ultimately indicated that it would hear father's motion on school choice on August 1, 2018 and would allocate an hour of the court's time. At the behest of minor's counsel, the court reminded the parties of its parental conduct orders. The court extended its order granting father temporary sole legal custody of son through August 1, 2018, but indicated that the custodial time-sharing schedule would revert to February 25, 2015 orders. The court set the hearing on father's motion to determine the "school choice" issue for August 1, 2018.
In a request for temporary emergency (ex parte) orders filed June 27, 2018, mother requested, among other things, (1) an order making the August 1, 2018 hearing a full-day trial or alternatively scheduling a full-day trial on the issue of the choice of high school prior to August 1, 2018 and (2) an order allowing son to "directly address the court in chambers re: school choice." Mother's request for order did not ask the court to order a custody evaluation.
In mother's memorandum in support of her request for order, mother argued that the request for a full-day trial was to preserve her due process rights and ensure that she had the opportunity to be meaningfully heard and "present any and all evidence and testimony" on the issue of changing the existing custody schedule. In her supporting declaration, mother requested that the court "allow at least one full day for the hearing on 'school choice' prior to August 1, 2018." She asserted, "To simply have a one-hour hearing on this issue is insufficient and denies me due process." She declared that son had thrived academically and socially in Danville and that if he were sent to SVHS, son would "be completely uprooted from his home of many years, his friends, [and] his social and religious network . . . ." She claimed that son "would like to begin high school with his friends in Danville." According to mother, son had "made it very clear to [her] that he wishe[d] to address the court directly." In her declaration, she asked the court to order "a brief, focused assessment and/or [section] 730 evaluation . . . on the issue of [s]chool [c]hoice prior to the August 1, 2018 hearing" if the court could not "accommodate [the] request [for a full-day hearing] because of its impacted calendar."
Evidence Code section 730 provides in part: "When it appears to the court, at any time before or during the trial of an action, that expert evidence is or may be required by the court or by any party to the action, the court on its own motion or on motion of any party may appoint one or more experts to investigate, to render a report as may be ordered by the court, and to testify as an expert at the trial of the action relative to the fact or matter as to which the expert evidence is or may be required."
Minor's counsel filed a responsive declaration. In it she stated that son had "[a]t no time . . . requested to speak with a Judge" and that "[son did] not like going to Court." Minor's counsel expressed her opinion that son "need[ed] to be shielded from any further conflict and [that] having to come to a Court and talk to a Judge only add[ed] unnecessary anxiety and stress to him." It was also her opinion that it would not take an entire day to decide whether son would attend high school in Scotts Valley or Danville or go to a boarding school.
On June 26, 2018, the court declined to make ex parte orders providing for a full-day trial on school choice and permitting son to address the court on school choice.
In a written "brief," apparently filed July 25, 2018, father argued with regard to the issue of school choice that son had lived with him in Santa Cruz half the time since February of 2015. Father contended that it was in son's best interests to attend SVHS.
On July 25, 2018, mother filed a supplemental declaration in opposition to father's request for a school choice order. In it, she stated: "[son] wants to address the court on his own behalf. . . . I reiterate my request to allow him to address the court." Among other things, she also stated: "By way of an offer of proof, attached hereto as Exhibit 1 is a list of potential witnesses and their potential testimony regarding [son's] involvement in the community." Exhibit 1 was a "Potential Witness List" of 14 persons, including a rabbi, son's middle school guidance counselor, and son's older (half) brother, each accompanied by a brief description of the expected testimony. Mother also stated that she "object[ed] to the Court only allowing one hour for the 8/1/18 hearing" and that "[a]t least full day of oral testimony is absolutely required for me to present my case and for the court to make an informed decision about where [son] goes to high school." She claimed that the limited time allotted was "detrimental" to her "due process rights."
The exhibit attached to mother's declaration stated that the rabbi "would testify regarding [son's] religious community and [his] involvement in activities surrounding the synagogue and larger Jewish community in the Danville area . . . ," the rabbi's "involvement in [son's] life," "each parent's involvement in [son's] religious education," and son's "character and independence of mind." The middle school guidance counselor "would testify regarding [son's] academic record and sound behavior, the authenticity of [son's] emails, the academic and social opportunities available at SRVHS, [son's] ties to his school community, [son's] level of maturity and sophistication, [son's] strength of character and independent thinking[,] and each parent's involvement in [son's] education." Son's older half-brother "would testify regarding SRVHS and his experience there, the opportunities for teens in Danville, the Danville community, the atmosphere in [mother's] home, [and] his bond with his Danville area relatives." Mother's potential witness list additionally included maternal aunts, mothers of son's friends, son's pediatrician, his dentist, his orthodontist, two of mother's close friends, and an acquaintance who was the founder of Challenge Success and a senior lecturer at Stanford University's Graduate School of Education.
On August 1, 2018, mother filed a written request for a statement of decision—citing Family Code section 3022.3 ; Code of Civil Procedure section 632 ; and California Rules of Court, rule 3.1590—and a request for a statement of reasons (§§ 3082, 3087) regarding any decision concerning (1) legal or physical custody of son, (2) a change in the visitation schedule, and (3) determination of the high school that son would attend.
All further statutory references are to the Family Code unless otherwise specified. "Upon the trial of a question of fact in a proceeding to determine the custody of a minor child, the court shall, upon the request of either party, issue a statement of the decision explaining the factual and legal basis for its decision pursuant to [s]ection 632 of the Code of Civil Procedure." (§ 3022.3, italics added.)
Code of Civil Procedure section 632 provides: "In superior courts, upon the trial of a question of fact by the court, written findings of fact and conclusions of law shall not be required. The court shall issue a statement of decision explaining the factual and legal basis for its decision as to each of the principal controverted issues at trial upon the request of any party appearing at the trial. The request must be made within 10 days after the court announces a tentative decision unless the trial is concluded within one calendar day or in less than eight hours over more than one day in which event the request must be made prior to the submission of the matter for decision. The request for a statement of decision shall specify those controverted issues as to which the party is requesting a statement of decision. After a party has requested the statement, any party may make proposals as to the content of the statement of decision. [¶] The statement of decision shall be in writing, unless the parties appearing at trial agree otherwise; however, when the trial is concluded within one calendar day or in less than 8 hours over more than one day, the statement of decision may be made orally on the record in the presence of the parties." (Italics added.) A court's failure to issue a statement of decision as required by Code of Civil Procedure section 632 is not reversible per se. (F.P. v. Monier (2017) 3 Cal.5th 1099, 1102, 1116 (F.P.).)
All further references to rules are to the California Rules of Court.
At the hearing on school choice held on August 1, 2018, minor's counsel appeared on behalf of son, who was not present. Mother's counsel informed the court that a request for a statement of decision and findings had been filed.
Mother's counsel indicated that he understood that father was asking for "primary custody" and "sole legal custody." He expressed his concern that those issues could not be addressed in a one-hour hearing. The court indicated that the matter that was scheduled to be heard that day was "school choice."
The court addressed mother's claim that she was being denied due process. The court indicated that the hearing was providing due process. The court voiced its concern that mother had a potential witness list with 14 witnesses, and the court asked mother's counsel to help it "understand what, for example, an orthodontist and a pediatrician have to offer on the issue of school choice." Mother's counsel explained that those witnesses were being proffered to show that father had not complied with their treatment recommendations and had "really made a muck-up of the sole legal custody," which the court had temporarily granted to him. The court then asked about the relevancy of mothers of son's friends testifying as to mother's veracity. Mother's counsel indicated that the mothers were "rehabilitation witnesses" to refute father's claim that mother had poisoned son's social community.
The potential witness list indicated that mothers of son's friends would testify on, among other things, mother's "veracity [and] the supportive atmosphere in [her] home."
At the August 1, 2018 hearing, minor's counsel told the court that son had called her from the car on his cell phone earlier that afternoon and conveyed his school preferences, which she shared. She also told the court that when she had first broached the idea of attending boarding school for high school during a meeting that included his therapist, son had been elated but subsequently changed his mind. She stated, "I don't have to reiterate for the record, because the court knows this child[,] [that son] vacillates . . . ." Minor's counsel recognized that mother was "in a chapter 13 bankruptcy," but she still believed that boarding school would benefit son and that "4 years of . . . some freedom from this conflict may be in his best interest." She also pointed out that the parents had failed to utilize the dispute resolution tools available to them, which would have been in son's best interests.
Mother's counsel asked for more time than had been allotted by the court for the hearing. The court responded, "I have been accused by the parties in this case over and over again of not giving you all the time that you need." The court stated that the case was "the most heavily litigated" one on the docket with almost "1,000 filings." It stated, "We simply do not have the bandwidth to let you litigate this case the way you may wish to."
The court reiterated to mother's counsel that "[i]t [was] not clear . . . what an orthodontist and a pediatrician [would] have to say that could be relevant to . . . the narrow issue of school choice." The court said that it was "quite familiar and very experienced in school choice issues" and that "no one [had] ever [before] attempted to call an orthodontist, a dentist, friends, [or] mothers [of a child's friends]" as witnesses on that issue. The court told the parties, "Here's what is relevant and what I'd be prepared to hear about: The test scores at the different schools; how the schools compare in terms of curriculum; what the schools each have to offer to [son] in his area of interest. Anything that's relevant along those lines, I'm now prepared to hear." The court made clear to mother's counsel that it was not intending to address broader issues of custody at that hearing.
The court indicated that if the parties agreed, it was willing to proceed by "offer of proof" and cross-examination. Mother's counsel agreed to proceed "in that fashion." Father's counsel also agreed to that procedure.
Mother's counsel argued that the only evidence before the court in support of father's "spoiled community theory" was father's statements. Her counsel stated that mother would testify that son thrives in the Danville community and is "heavily enmeshed in it," "heavily involved in his temple," and "engaged in extracurriculars" there. The court responded to mother's counsel, "[I]magine my concern . . . when I'm delivered a witness list [that] basically shows that every aspect of this child's life is intended to be represented on the school choice issue." Minor's counsel asserted that "the only option" to "push back on" on father's claim that son's "social milieu ha[d] been spoiled" was to "call people that are familiar with him and show . . . that's not true." The court pointed out the potential witness list did not "suggest that that's what you [had] planned to address" through their testimony. The court commented that it certainly seemed like son's "entire social community" in Danville had been "involved in this litigation."
Both parents testified at the August 1, 2018 hearing. Father recognized that both SVHS and SRVHS were good schools. He believed that the International Baccalaureate Program at SVHS was more prestigious than the AP (Advanced Placement) classes available at SRVHS.
Mother acknowledged that son had spent the last portion of his eighth grade year in the primary custody of father in Scotts Valley and that son's grades had improved in the last term. Mother also acknowledged that the potential benefits of attending school in Scotts Valley could include son's spending time with his little (half) brother, with whom son had "a very close relationship," and pets of which he was "super fond." But she believed that son would get a superior education and have greater educational opportunities in Danville as compared to Scotts Valley. While she saw some benefits to the alternative of son attending boarding school, she did not "have the means to fund it."
While mother was on the witness stand, the court asked her why her declaration had indicated that she "intended to bring all of those people into court" to testify about "father's lack of involvement in [son's] care[,] [their] concerns [regarding son's] health[,] and [her] veracity." The court said, "You can, I hope, understand why that seems so wildly inappropriate." Mother said that she understood and apologized, explaining that she had not "read through that very well before it was filed." She stated that her intention had been to give the court "a bigger picture of . . . who [son was], what his community [was], [and] how important [son was] to . . . his friends' families . . . ." Mother indicated that if son were "taken out of his Danville community, [it was] going to be very hard for him to maintain those relationships," including some "very close" Hebrew school friends. She stated that SRVHS was "a phenomenal high school."
Mother stated in her written declaration that SRVHS was "both statistically and subjectively a much better school than [SVHS]. She asserted: SRVHS, with 2,095 students is 2.6 times larger than [SVHS]. The larger size school provides a greater array of classes, extracurriculars and also an expanding friendship network, missing in a smaller school such as [SVHS]." She reported: "SRVHS offers a GATE Program, honors classes, accelerated classes and 22 Advanced Placement classes." According to mother, SVHS did not offer such a program or classes, and students at SVHS were not eligible to participate in its International Baccalaureate program until their junior year. The 2016-2017 school accountability report cards for both high schools were attached to her declaration. In her declaration, mother stated that "SRVHS has a 'Bring Your Own Device' policy (laptops, chrome books, iPads) and has integrated technology into virtually every classroom," while SVHS had "no such policy and [did] not allow the use of personal technology." Mother indicated that son had been diagnosed with dysgraphia when he was younger and that "teachers ha[d] recognized his challenge and ha[d] allowed him to use his iPad and a Chrome Book as needed for notetaking and school work." According to mother, "SRVHS ha[d] [two] psychologists on staff, [five] resource specialists and [one] librarian" while SVHS did not have such staff, and "SRVHS ha[d] 90 clubs including Hebrew Club and other clubs that are of great interest to [son]" while SVHS had only 35 clubs.
At the August 1, 2018 hearing, the court said that mother's offers of proof on the 14 potential witnesses were "not particularly helpful or relevant [to the issue of] school choice." It declined to hear the proffered testimony of mother's college-age son, who was on the witness list and apparently had attended SRVHS, on the ground that his testimony would be irrelevant to the issue of school choice for son. It also declined to hear testimony of a witness proffered by father's counsel on mother's credibility.
A declaration of this half-brother had been filed on July 25, 2018. In his declaration, the half-brother indicated that he had left for college in 2015, that he had "not been able to spend much time at home over the past few years, aside from breaks," and that "[n]owadays" he "hardly ever" saw son because of son's schedule.
Also at that August 1, 2018 hearing, the court denied mother's request for a statement of decision because the court was addressing the limited issue of school choice and a request for a change in custody was not before the court at that hearing. The court agreed with father that a fresh start for son was the "right choice," and it determined that son would enroll in and attend SVHS. The court emphasized that the custodial "time share" was not at issue at that juncture and that the 50/50 custody arrangement would continue. A hearing was scheduled for August 27, 2018 to consider financial and custody matters. The court asked father's counsel to prepare an order.
At the hearing on August 27, 2018, minor's counsel appeared on behalf of son, who was not present. Minor's counsel told the court that the co-parent counselor, Dr. Rolison, had met with the parties in an effort to resolve the custody schedule during the school year, but they had reached an impasse. In addition, minor's counsel reported that mother was not paying Dr. Read, so the parent coordinator was unwilling to continue to work on the issue. Since son had already started school, minor's counsel recommended flipping the weekday schedule and maintaining the same holiday schedule. To maintain the "50/50 arrangement," mother's counsel advocated for reversing the established custodial time-sharing schedule throughout the year so that mother had father's previous schedule and father had mother's previous schedule. Under that proposal, mother would have son on Wednesdays and on the weekends and the "vacation and holiday time" previously allotted to father.
The court accepted mother's agreement through her counsel to return son to father on Sunday evenings, instead of Monday morning, and ordered the exchange to occur on Sundays at 5:00 p.m. at the previously specified exchange location. The court indicated that the weekday custodial time-sharing schedule would be reversed during the school year and that mother would have son overnight on Wednesdays. The court stated that father would have son on the first and the third weekends of each month and on alternate fifth weekends.
Mother's counsel again asked the court to order that the holidays and vacation time previously allotted to father be switched to mother to maintain a 50/50 custody split. Minor's counsel suggested postponing any further changes and coming back for a review in March to see how son was doing. Minor's counsel also informed the court that mother was not paying her fees either, but indicated that she would continue to represent son.
When mother's counsel complained that the court's order in effect reduced mother's "custodial time share," the court insisted that it had not been changed or reduced. The court acknowledged that there were holidays and vacations during the school year that still needed to be addressed. The court reminded the parties to go to the appointed co-parent counselor and parent coordinator to resolve further custody issues. The court subsequently commented that this case had "more filings than any other case in [the] system" and called the parties "litigious."
At the end of the August 27, 2018 hearing, the court concluded that mother's bankruptcy filing had not resulted in an automatic stay of proceedings concerning child support obligations and that its orders concerning the parties' shared responsibility for the costs of therapy and counseling, the parent coordinator, and minor's counsel were "matters of child support" or akin to child support because those professional services directly benefitted the child's general welfare. The court denied mother's request for "reallocation" of the responsibility to pay those costs. The court directed father's counsel to prepare an order.
In the written findings and order after hearing, based on the August 1, 2018 hearing and filed on September 5, 2018, the court found that son's "brother's experience in high school and his relationship with his mother and relatives [was] not relevant to the issue of school choice for [son]." The court further found that the parties' "offers of proof and testimony of third parties" were "not helpful to the court or relevant to the issue of school choice." The court denied mother's written request for a statement of decision on the limited issue of school choice.
In the September 5, 2018 written order, the court granted father's request for son to attend SVHS. The order directed mother to "immediately disenroll" son from SRVHS. It also required the parties to "cooperate with each other to sign all necessary forms and submit all necessary paperwork to enroll [son] at [SVHS]." It authorized father to sign the paperwork himself if mother "refuse[d] to cooperate with a request for signature within 5 days of the request . . . ." It mandated that both parties "be listed as contacts for the school within 5 days of this order."
The September 5, 2018 written order expressly provided that "[b]eginning on August 1, 2018, legal custody . . . reverted to join[t] legal custody between the parties" and that the parties had "joint physical custody on a 50/50 timeshare." The order stated that "[a]ll prior orders not in conflict with this order shall remain in full force and effect."
In the written findings and order after hearing, based on the August 27, 2018 hearing and filed on October 23, 2018, the court found that a bankruptcy filing did not result in an automatic stay on issues related to child support, which included the payment of costs of therapy and counseling. It found that consequently, "[t]he costs related to therapy and counseling remain[ed] as previously ordered." The court further found that payments to minor's counsel and the parent coordinator were "similar to child support because their services directly benefit[ed] the welfare of the child."
The October 23, 2018 written order further provided: "Per the agreement of the parties, the February 25, 2015 Order shall be modified as follows: [¶] During the school year, [son] shall be in the custody of [father] from Sundays at 5:00 PM to Wednesday drop off at school and from Thursday pick up at school to Friday drop off at school every week. In addition, [father] shall have the 1st, 3rd, and alternating 5th weekends with [son] from Friday pick up at school until Wednesday drop off at school. [Son] shall be in the custody of [mother] every Wednesday pick up at school until Thursday drop off at school and on the 2nd, 4th, and alternating 5th weekends of the month from pick up at school on Friday to drop off on Sunday at 5:00 PM." The order required Sunday exchanges to occur at the specified location "per the 2015 custody order." It provided that "[a]ll other custody and visitation orders not in conflict with this modification remain in full force and effect." The court denied mother's "request to modify the holiday and vacation schedule." In its order, the court "admonished the parties to adhere [to] its orders and to engage in the dispute resolution process with the co-parent counselor and the parenting coordinator."
Mother filed a notice of appeal, appealing from the orders entered on September 5, 2018 and October 23, 2018.
A. Legal Background
" 'Joint legal custody' means that both parents shall share the right and the responsibility to make the decisions relating to the health, education, and welfare of a child." (§ 3003, italics added.) In contrast, " '[s]ole legal custody' means that one parent shall have the right and the responsibility to make the decisions relating to the health, education, and welfare of a child." (§ 3006, italics added.) " 'Joint physical custody' means that each of the parents shall have significant periods of physical custody." (§ 3004, italics added.) Ordinarily, joint physical custody must be "shared by the parents in such a way so as to assure a child of frequent and continuing contact with both parents . . . ." (§ 3004.) On the other hand, " '[s]ole physical custody' means that a child shall reside with and be under the supervision of one parent, subject to the power of the court to order visitation." (§ 3007.)
Educational decisions are an aspect of legal custody. (See § 3003, 3006.) In this case, the February 2015 final custody orders provided for joint legal custody and established that both parents shared decision-making. In August of 2018, son's entry into high school was fast approaching, and the parents had neither agreed on a high school nor availed themselves the dispute resolution process established by court order.
We are aware that family courts sometimes are compelled to make or become involved in school choice decisions for parents, even where parents have been granted joint legal custody and have the right to make that decision together. (See e.g., Enrique M. v. Angelina V. (2009) 174 Cal.App.4th 1148 (Enrique M.) [where lower court selected middle school for child whose parents were unable to agree, appellate court rejected father's argument that the due process clause of the Fourteenth Amendment required the court to apply strict scrutiny to any burden placed on his right to make decisions concerning the care, custody, and control of his child]; In re Marriage of Adams & Jack A. (2012) 209 Cal.App.4th 1543, 1568 [stipulated judgment provided for joint legal custody and the submission of disputes to a special master; an appellate court reversed a post-judgment order that awarded sole custody to the mother, finding among other things that the trial court erroneously denied the father's request to appoint special master to facilitate joint custody where parents were unlikely to mutually agree on middle school absent one parent's capitulation or "intervention of a neutral third party or the court"]; In re Marriage of Birnbaum (1989) 211 Cal.App.3d 1508, 1512-1514 (Birnbaum) [appellate court determined among other things that sufficient evidence supported the court's findings that the San Mateo school system in which father resided was superior to the El Granada school system in which mother resided and that enrollment of the children San Mateo schools would provide them with "a greater variety of both educational and enrichment options"].) But a court's school choice decision does not necessarily alter an underlying final joint legal custody order. B. Court's Decision that Son Would Attend SVHS as a Freshman 1. Section 3042 and Rule 5.250
Mother claims that she requested the court to permit son to testify in chambers with a support person present, possibly his current therapist, regarding "the school choice matter" which she now characterizes as "his custodial preferences." She asserts that the court improperly denied her request in violation of section 3042.
As indicated, in a written request for temporary emergency (ex parte) orders, filed June 27, 2018, mother asked that "minor be allowed to directly address the court in chambers re: school choice." In a declaration, mother stated that son "has been crystal clear with anyone who will listen that he wants to go to high school in Danville, CA and I believe it is in his best interests to do so." She requested that son be allowed to address the court in chambers without either parent being present, perhaps with the support of his therapist. In her memorandum of points and authorities, mother claimed that son "wishe[d] to address the court and state his wishes relating to the school choice request." She indicated that son would soon be 14 years old.
As also indicated, on June 25, 2018, minor's counsel filed a responsive declaration. Minor's counsel stated in her declaration that son had "[a]t no time . . . requested to speak with a Judge" and that "[son did] not like going to Court." She expressed her opinion that son "need[ed] to be shielded from any further conflict and [that] having to come to a Court and talk to a [j]udge only add[ed] unnecessary anxiety and stress to him."
Also as indicated on June 26, 2018, the trial court declined to make an ex parte order allowing son to directly address the court.
Section 3042, subdivision (c), provides: "If the child is 14 years of age or older and wishes to address the court regarding custody or visitation, the child shall be permitted to do so, unless the court determines that doing so is not in the child's best interests. In that case, the court shall state its reasons for that finding on the record." (Italics added.) The section also expressly states: "Nothing in this section shall be construed to require the child to express to the court his or her preference or to provide other input regarding custody or visitation." (§ 3042, subd. (g).) Although it is not at all clear that this section applied to the school choice decision, we assume arguendo that it did.
Section 3042 is implemented by rule 5.250. The rule states in part: "No statutory mandate, rule, or practice requires children to participate in court or prohibits them from doing so." (Rule 5.250(a).) A party may inform the court that the party has "information indicating that a child wishes to address the court." (Rule 5.250(b)(2).) "If the child indicating an interest in addressing the court is 14 years old or older, the judicial officer must hear from that child unless the court makes a finding that addressing the court is not in the child's best interest and states the reasons on the record." (Rule 5.250(c)(2), italics added.)
In June of 2018, son was not yet 14 years old. Consequently, when the court declined to make an ex parte order allowing son to directly address the court in chambers on school choice, it had no duty to state its reasons on the record under section 3042, subdivision (c), and rule 5.250(c)(2). Moreover, the information provided by son's counsel indicated that son did not like to go to court and that it would not be in his best interests to address the court.
Mother's reiteration of her claim that son wanted to address the court on his own behalf was buried in a supplemental declaration in opposition to father's request for a school choice decision. Mother's conclusory statement lacked any factual foundation to show that son's counsel had misrepresented his feelings or best interests as to his addressing the court or that son had a new desire to address the court on school choice.
On August 1, 2018, minor's counsel shared son's current school preferences, as son had conveyed them to her during a phone call earlier that day. Son had indicated a preference for attending school in Danville, his second choice was to go to a boarding school, and his last choice was to attend high school in Scotts Valley. Nevertheless, it was the opinion of minor's counsel, who was "charged with the representation of [son's] best interests" (§ 3151, subd. (a)), that it was in son's best interest to have four years of "some freedom from this conflict." She urged the court to "give [son] a chance for high school, to have a breather, whatever that breather is. Have a breather so that he can enjoy the rest of his minority."
Although the court's selection of a high school was not consistent with son's expressed preference on the day of the August 1, 2018 hearing, the court observed that son had "expressed through minor's counsel a number of different opinions over time." The court was aware of son's current wishes when it made the school choice decision.
Section 3042 requires a court to "consider" and give "due weight" to the child's preferences regarding custody and visitation. (§ 3042, subd. (a); see In re Marriage of Mehlmauer (1976) 60 Cal.App.3d 104, 110 ["court's comments conclusively demonstrate it did give consideration and due weight to [the minor's] expressed preference"].) Assuming without deciding that section 3042 applies to the court's school choice decision, there has been no showing that the court did not consider and give due weight to son's school preferences. A court's failure to accede to a child's wishes does not in and of itself establish an abuse of discretion under section 3042. (See In re Marriage of Winternitz (2015) 235 Cal.App.4th 644, 655.)
Moreover, it is not reasonably probable that the court would have selected SRVHS for son if son had told the court his school choice preferences in person. (See People v. Watson (1956) 46 Cal.2d 818, 836 (Watson); Cal. Const., art. VI, § 13.) We discern no basis for reversal on this ground.
2. Court did not Abuse its Discretion by not Appointing a Custody Evaluator
On appeal mother contends that the trial court erroneously denied her ex parte request for a focused custody evaluation or a Family Court Services (FCS) emergency screening. She argues that "the trial court lacked the 'complete picture' and missed an opportunity to obtain expert guidance when it denied [her] request." She asserts that "[a] custody evaluation or FCS screening could have provided expert guidance to the court, particularly in light of [f]ather's allegations of parental alienation."
Father asserts that mother made "no request for a focused custody evaluation for the orders addressed by this appeal." However, the record reflects that in her responsive declaration in opposition to father's request for order on school choice mother indicated that the court must or should appoint a child custody evaluator before deciding the school choice issue. In a declaration in support of her request for order, apparently filed June 20, 2018, mother also requested "a brief, focused assessment" and a section 730 evaluation "on the school choice issue prior to the August 1, 2018 hearing." (See ante, fn. 3.) Even assuming arguendo that a request for a child custody evaluation was preserved for review on appeal, we find no abuse of discretion.
The appellate record reflects that the parties reported to FCS for an emergency screening on September 21, 2017. The court held emergency screening review hearings regarding custody and visitation issues in October, November, and December of 2017. Mother has not shown by citation to the appellate record that she requested another emergency screening to address the school choice issue.
"A 'child custody evaluation' is an expert investigation and analysis of the health, safety, welfare, and best interest of children with regard to disputed custody and visitation issues." (Rule 5.220(c)(3).) "A 'full evaluation, investigation, or assessment' is a comprehensive examination of the health, safety, welfare, and best interest of the child." (Rule 5.220(c)(4).) "A 'partial evaluation, investigation, or assessment' is an examination of the health, safety, welfare, and best interest of the child that is limited by court order in either time or scope." (Rule 5.220(c)(5).)
Section 3111 authorizes the appointment of a child custody evaluator and states the statutory requirements. Under its provisions, a court is not obligated to obtain an independent custody evaluation before resolving disputed child custody or visitation issues. "In any contested proceeding involving child custody or visitation rights, the court may appoint a child custody evaluator to conduct a child custody evaluation in cases where the court determines it is in the best interests of the child." (§ 3111, subd. (a), italics added.) The word "may" is permissive, not mandatory. (§ 12.)
" 'The standard of appellate review of custody and visitation orders is the deferential abuse of discretion test.' [Citation.]" (Montenegro v. Diaz (2001) 26 Cal.4th 249, 255.) A trial court's decision whether to appoint a child custody evaluator is reviewed for an abuse of discretion. (See In re Marriage of E.U. & J.E. (2012) 212 Cal.App.4th 1377, 1389 [decision to appoint an Evidence Code section 730 evaluator reviewed for abuse of discretion].) " 'Discretion is abused whenever, in its exercise, the court exceeds the bounds of reason, all of the circumstances before it being considered. The burden is on the party complaining to establish an abuse of discretion, and unless a clear case of abuse is shown and unless there has been a miscarriage of justice a reviewing court will not substitute its opinion and thereby divest the trial court of its discretionary power.' [Citations.]" (Denham v. Superior Court (1970) 2 Cal.3d 557, 566; see Cal. Const., art. VI, § 13.)
Mother has not demonstrated that the court abused its discretion by not appointing a child custody evaluator before the August 1, 2018 hearing. The court had already appointed mental health professionals to serve as co-parent counselor and parent coordinator to help the parties resolve disputed issues. Son, who would be entering high school soon after that hearing, was represented by his own counsel at that hearing, and his counsel conveyed his preferences on school choice to the court. We discern no basis for reversal based on the court's failure to appoint a child custody evaluator. It was not beyond the bounds of reason to proceed without a custody evaluation. Furthermore, contrary to mother's assertion, our standard of review of the sufficiency of the evidence to support the court's school choice decision is not altered by the lack of a custody evaluation.
3. Consideration of Son's Best Interests
a. School Choice Decision Not Equivalent to a Custodial Parent's Move-Away
On appeal, mother contends that the court was required to consider the best interest factors set forth in In re Marriage of LaMusga (2004) 32 Cal.4th 1072 (LaMusga) because the court uprooted son and moved his primary home to Scotts Valley. She accuses the court of being "willfully blind to the obvious fact" that granting father's request that son attend SVHS meant "removing him from the community where he had enduring familial, social, educational and religious ties." According to mother, from son's "perspective, moving to Scotts Valley and attending SVHS, meant moving the epicenter of his life and leaving a community where he had close friends, extended family, a supportive religious community, and an educational system in which he had excelled." Mother maintains that "[a]lthough neither parent was moving, only the child, [the court was] not relieve[d] . . . of its obligation to apply principles and best interest factors derived from controlling moveaway law under LaMusga."
"The provisions in the Family Code governing custody of children do not use the term 'primary physical custody.' [Citation.] Rather, the code uses the terms 'joint physical custody,' which 'means that each of the parents shall have significant periods of physical custody' (Fam.Code, § 3004), and 'sole physical custody,' which 'means that a child shall reside with and be under the supervision of one parent, subject to the power of the court to order visitation' (Fam.Code, § 3007). The term 'primary physical custody' does appear in Family Code section 4045, subdivision (d)(3), which grants the Judicial Council the authority to review the statewide uniform child support guidelines." (LaMusga, supra, 32 Cal.4th at p. 1081, fn. 1.)
In LaMusga, the court had granted primary physical custody to the mother (LaMusga, supra, 32 Cal.4th at pp. 1080-1081), and the mother was planning to move to Ohio. (Id. at p. 1081.) The California Supreme Court did not "suggest that a showing that a proposed move will cause detriment to the relationship between the children and the noncustodial parent mandate[d] a change in custody." (Id. at p. 1095, italics omitted.) However, the court made clear that "it is within the wide discretion of the superior court to order a change of custody based upon such detriment, if such a change is in the best interests of the children in light of all the relevant factors." (Ibid.) It explained that "[e]ven if the custodial parent has legitimate reasons for the proposed change in the child's residence and is not acting simply to frustrate the noncustodial parent's contact with the child, the court still may consider whether one reason for the move is to lessen the child's contact with the noncustodial parent and whether that indicates, when considered in light of all the relevant factors, that a change in custody would be in the child's best interests." (Id. at p. 1100, fn. omitted.)
The Supreme Court held in LaMusga: "[T]he noncustodial parent bears the initial burden of showing that the proposed relocation of the children's residence [by the custodial parent] would cause detriment to the children, requiring a reevaluation of the children's custody. The likely impact of the proposed move on the noncustodial parent's relationship with the children is a relevant factor in determining whether the move would cause detriment to the children and, when considered in light of all of the relevant factors, may be sufficient to justify a change in custody. If the noncustodial parent makes such an initial showing of detriment, the court must perform the delicate and difficult task of determining whether a change in custody is in the best interests of the children." (LaMusga, supra, 32 Cal.4th at p. 1078.)
The Supreme Court determined in Marriage of LaMusga that "[a]mong the factors that the court ordinarily should consider when deciding whether to modify a custody order in light of the custodial parent's proposal to change the residence of the child are the following: 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." (Id. at p. 1101.) Even so, the Supreme Court stated that it would "generally leave it to the superior court to assess [the] impact [of a proposed change of residence by the custodial parent] in light of the other relevant factors in determining what is in the best interests of the child." (Id. at p. 1097.)
The Supreme Court has subsequently explained: "[W]here a final custody order had awarded sole legal and sole physical custody to the parent seeking to relocate with a child, the noncustodial parent opposing the relocation may seek and obtain a custody modification based on a proper showing pursuant to the changed circumstance rule." (In re Marriage of Brown & Yana (2006) 37 Cal.4th 947, 959 (Brown & Yana).) Stated another way, "[w]hen a final judicial custody determination is in place . . . , and a noncustodial parent seeks to modify custody in response to a proposed relocation, the trial court must apply the changed circumstance rule." (Ibid.) In that situation, the noncustodial parent "bears the initial burden of showing that the proposed relocation of the child's residence will cause detriment to the child, requiring a reevaluation of the existing custody order. [Citations.]" (Id. at pp. 959-960.)
During the May 24, 2018 hearing, the court rejected the suggestion of mother's counsel that father's request for an order on school choice was "akin to" a move-away motion. We agree that the school choice request was not tantamount or akin to a custodial parent's proposed move-away because (1) neither parent had moved away or was moving to a new residence and (2) both parents were custodial parents under the court's joint physical custody orders.
Although we conclude that this is not a move-away case, we are not convinced by father that the court's order temporarily designated his home as son's primary residence was determinative. Following the March 19, 2018 hearing, the court specified that commencing June 1, 2018 the custodial time-sharing schedule established by the final February 25, 2015 orders again governed. Those orders stated that son "will share residence with [m]other and [f]ather equally, as far as possible" and provided for father to have son for "the majority of the summer time" because son lived primarily with mother during the school year. At the May 24, 2018 hearing, the court told the parties that the final February 25, 2015 orders controlled the custodial time-sharing schedule for the summer of 2018.
This case is easily distinguished from other cases cited by mother as well. Father was not a noncustodial parent who had moved away and was seeking to have custody of the child. (Cf. In re Marriage of C.T. & R.B. (2019) 33 Cal.App.5th 87, 89-90 (C.T. & R.B.) [reversing custody order changing "primary physical custody" of 12-year-old son from the custodial mother in California to the noncustodial father who had moved to Arkansas, where the father failed to meet burden of establishing that moving son to Arkansas would not cause detriment and was in his best interests]; Jane J. v. Superior Court (2015) 237 Cal.App.4th 894, 897-898 [peremptory writ issued where modification order changed "custody to the noncustodial parent, thereby requiring the minor children to move in the middle of the school year from their California home to the noncustodial parent's home in Alabama"; court abused its discretion by not considering "the children's existing educational, physical, emotional and familial relationships with the custodial parent" and "whether an out-of-state move away would detrimentally affect their interests in continuity and stability"].)
By asking the court to make the school choice decision, which the parents had failed to make themselves, father did not need to meet the legal requirements applicable to move-away cases. b. A Child's Best Interests and the Change in Circumstances Rule
We agree, however, that even if father's school choice request was not tantamount or akin to a move-away motion, the court's school choice decision was still governed by son's best interests. As indicated, that decision should have been resolved by the parents since they had joint legal custody of son (see § 3003; cf. § 3006) and the final custody order provided for shared decision making on educational issues, but they did not cooperate and reach an agreement. While the court was forced to resolve this particular impasse, it did not modify its final custody orders at the August 1, 2018 hearing. i. Governing Law
Section 3020 states that "it is the public policy of this state to ensure that the health, safety, and welfare of children shall be the court's primary concern in determining the best interests of children when making any orders regarding the physical or legal custody or visitation of children" (§ 3020, subd. (a)) and that "it is the public policy of this state to ensure that children have frequent and continuing contact with both parents after the parents have . . . dissolved their marriage . . . and to encourage parents to share the rights and responsibilities of child rearing in order to effect this policy, except when the contact would not be in the best interests of the child . . . ." (§ 3020, subd. (b).)
Section 3011 requires the court in determining a child's best interests to consider specified factors, including the child's health, safety, and welfare (§ 3011, subd. (a)) and "[t]he nature and amount of contact with both parents, except as provided in [s]ection 3046." (§ 3011, subd. (c).) The court may also consider "any other factors it finds relevant" (§ 3011) and "consistent with [s]ection 3020." (Ibid.)
In making a determination of a child's best interests, the court must also consider the factors of "[a]ny history of abuse by one parent or any other person seeking custody" of the child (§ 3011, subd. (b)) and "[t]he habitual or continual illegal use of controlled substances, the habitual or continual abuse of alcohol, or the habitual or continual abuse of prescribed controlled substances by either parent." (§ 3011, subd. (d).) "When allegations about a parent pursuant to subdivision (b) or (d) have been brought to the attention of the court in the current proceeding, and the court makes an order for sole or joint custody to that parent, the court shall state its reasons in writing or on the record." (§ 3011, subd. (e)(1).) There were no allegations that either of these factors was a consideration at the time the court made the orders now being challenged.
As the California Supreme Court has recognized, under "California's statutory scheme governing child custody and visitation determinations . . . , 'the overarching concern is the best interest of the child.' [Citation.]" (Brown & Yana, supra, 37 Cal.4th at p. 955.) "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. ([In re Marriage of Burgess (1996) 13 Cal.4th 25,] 32-33.) In recognition of this policy concern, [the court has] articulated a variation on the best interest standard, known as the changed circumstance rule, that the trial court must apply when a parent seeks modification of a final judicial custody determination. [Citation.] Under the changed circumstance 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.] Not only does this serve to protect the weighty interest in stable custody arrangements, but it also fosters judicial economy. [Citation.]" (Id. at p. 956, fn. omitted.) ii. Analysis
The parents did not avail themselves of the existing dispute resolution mechanism set up by the court to reach a mutual decision as to the high school that their son would attend. Consequently, the issue of school choice devolved to the family court. The court explicitly limited the August 1, 2018 hearing to the question of school choice and made clear that the "50-50 custody arrangement" was not before the court.
We agree that once the court selected SVHS as son's high school, the decision was very likely to precipitate a change in the parents' custodial time-sharing arrangements since they lived quite a distance apart and father lived in the vicinity of SVHS and mother did not. But nothing in the school choice decision itself dictated that the parents would no longer have joint physical custody or that mother would no longer have significant periods of physical custody during which son would reside with her in Danville and be under her supervision.
We agree with father that he was not required to show a change in circumstances as a prerequisite to the court's deciding that son would attend SVHS because that decision did not in and of itself alter any final custody order. Even if the decision would likely lead to some adjustment of the parties' custodial time-sharing arrangements, the decision did not necessarily mean the end of the basic joint physical custody framework or that the order establishing joint physical custody of son would be modified to give father sole physical custody of son. It was possible for son to attend SVHS while living with mother for significant periods. Son had attended school in Danville for the latter part of eighth grade while residing with father.
4. Sufficiency of Evidence to Support the School Choice Decision
In a document filed May 11, 2018, mother's counsel raised many evidentiary objections to father's declaration. After the May 24, 2018 hearing, the court continued the matter of school choice to August 1, 2018 to hear testimony. In its order, the court cautioned that it would not accept third-party declarations on August 1, 2018 unless the declarant could be cross-examined.
In in their respective declarations, mother and father discussed the merits of the high school they each espoused. In her declaration, mother also emphasized the quality and stability of son's relationships in the Danville community, including the familial and Jewish communities. In his declaration, father reported that son was already "part of the Santa Cruz community," that son "enjoy[ed] his youth group at [their] temple" and was "active in [their] religious community," that son "loves to play Magic at the Gathering at [their] local game shop," and that son had "made many friends through these activities." Father stated that son was "also bonded to his little brother, and enjoy[ed] being part of his everyday life."
Father further stated in his declaration that (1) son had been "repeatedly" telling father that "something bad [was] happening to him in [m]other's home, but he [was] too afraid to tell [father] what it [was]"; (2) son had "also expressed these thoughts to Dr. Melville" (the reunification therapist); (3) son had "admitted during the January 31, 2018 session with Dr. Melville that all of accusations regarding any abuse by [father] or name calling by [father] were false;" and (4) son had written "his [b]ar [m]itzvah speech, but the specific accusations were all provided by his mother." Father also stated that "the lies [that son] ha[d] told at the behest of his mother ha[d] permeated every aspect of [son's] life in Danville" and that son had "lied to his rabbis, friends and family at his temple during his [b]ar [m]itzvah speech."
Father further stated in his declaration that "the court [had] heard evidence from Dr. Melville, and it [was] documented in her report that was entered into evidence, that [son] [was] telling lies to his doctor claiming that it takes him over four hours to do his homework." Father stated that mother had "lied to school personnel regarding false allegations of abuse."
In his declaration, father also stated: "[Son's] social group has been tainted by [m]other's public broadcasting about this deeply personal family matter. [Son's] teachers, school counselor, principal, office staff and peers have been harassed by [m]other in her quest to tarnish my reputation. As a result, much of [son's] community is aware of our custody case and the struggles that [son] is facing with [m]other."
Father reported in his declaration that son's "peers in Santa Cruz will have little to no knowledge about [their] custody case, as [he did] not share that information with the general public." It was father's position that "[a] change in school will give [son] a fresh start . . . ."
At the August 1, 2018 hearing, mother's counsel elected not to cross-examine father regarding his statements in his declaration. Son's counsel urged the court to make a school choice decision that would give son "a breather" from litigation so that he could enjoy the remainder of his "minority." As indicated, the court selected SVHS for son, stating, "I am forced to agree with [father] that a fresh start is the right choice." b. Evidence Sufficient to Support School Choice Decision
Mother does not argue on appeal about the sufficiency of the evidence to support the court's choice of SVHS over SRVHS based the school's relative merits to meet son's educational needs and interests. Rather, mother asserts that the court's school choice decision was based on speculation and conjecture rather than "solid evidence of ponderable value" in that father's declaration was "riddled with hearsay and speculative assertions." She maintains that father produced "insufficient evidence of legally persuasive value," that many of father's statements "should have been stricken" as requested "in her evidentiary objections," and that father did not satisfy his burden of proof. Mother argues that "[i]t is highly improbable [that the] purported 'lies' had somehow radiated throughout a community of over 44,000 or had invaded a high school with over 2,000 students in a way damaging to [son]." She suggests that the evidence was insufficient because father did not call any witnesses to support his " 'spoiled community' theory." (Italics omitted.) Mother claims that her evidence as to son's settled life in Danville "remained overall uncontradicted."
Some of the considerations in selecting an appropriate high school for a college-bound student may include the available college preparatory and advanced academic courses and whether a school's size, student-teacher ratio, environment and culture, educational resources, and extracurricular opportunities are a good match for the student's needs and interests.
At the August 1, 2018 hearing, the parties' counsel agreed to proceed by offers of proof based on their "pleadings" and cross-examination. At that time, mother's counsel did not except from that mutually agreed method of proceeding any of his prior evidentiary objections to father's declaration and did not secure rulings on those prior objections. Consequently, those prior evidentiary objections were not preserved for review on appeal. (See e.g., People v. Ramos (1997) 15 Cal.4th 1133, 1171, but cf. Reid v. Google, Inc. (2010) 50 Cal.4th 512, 531-532 [written evidentiary objections are deemed made at the hearing under the summary judgment statute and preserved on appeal].) In addition, mother's counsel never cross-examined father to show that he lacked credibility or personal knowledge as to any matter stated in his declaration.
In addition, to the extent that mother's conclusory statements concerning father's declaration are not accompanied by specific citation to the appellate record and legal analysis, her claims of evidentiary insufficiency are deemed forfeited. (See People v. Stanley (1995) 10 Cal.4th 764, 793 (Stanley); rule 8.204(a)(1)(B) & (C).)
In evaluating the sufficiency of evidence, courts consider objectionable evidence admitted without proper objection. (See People v. Panah (2005) 35 Cal.4th 395, 476 [It is settled that " ' "incompetent testimony, such as hearsay or conclusion, if received without objection[,] takes on the attributes of competent proof when considered upon the question of sufficiency of the evidence to support a finding." ' [Citations.]"].) In reviewing the sufficiency of the evidence, " '[t]he power of the appellate court begins and ends with a determination as to whether there is any substantial evidence, contradicted or uncontradicted,' to support the trial court's findings. [Citations.] 'We must therefore view the evidence in the light most favorable to the prevailing party, giving [him] the benefit of every reasonable inference and resolving all conflicts in [his] favor . . . .' [Citation.]" (Estate of Leslie (1984) 37 Cal.3d 186, 201.) An "order of a lower court is presumed to be correct on appeal, and all intendments and presumptions are indulged in favor of its correctness. [Citations.]" (In re Marriage of Arceneaux (1990) 51 Cal.3d 1130, 1133.)
Generally, evidence given by a single witness, if believed by the fact finder, is sufficient to prove a fact. (See In re Marriage of Mix (1975) 14 Cal.3d 604, 614 (in bank); see also Minikin v. Hendrix (1940) 15 Cal.2d 338, 341 ["[I]t is well settled that the testimony of one witness entitled to credit is sufficient to establish a fact in a civil case"].) For an appellate court to reject on appeal the statements of a witness who was believed by the fact finder, either there must be a physical impossibility that the statements were true, or their falsity must be apparent without resorting to inferences or deductions. (People v. Mayberry (1975) 15 Cal.3d 143, 150.) " ' "Conflicts and even testimony which is subject to justifiable suspicion do not justify the reversal of a judgment [or an order], for it is the exclusive province of the [trier of fact] to determine the credibility of a witness and the truth or falsity of the facts upon which a determination depends. [Citation.]" ' " (Ibid.) In assessing the sufficiency of the evidence, " '[a] reviewing court neither reweighs evidence nor reevaluates a witness's credibility.' [Citation.]" (People v. Albillar (2010) 51 Cal.4th 47, 60.)
The court's implied factual findings regarding the relative merits of the high schools and the situation in son's Danville school community that underpin its school choice decision were supported by sufficient evidence.
Mother argues for the first time in her reply brief that the doctrine of implied findings does not apply because she asked for a statement of decision and a statement of reasons. "Obvious reasons of fairness militate against consideration of an issue raised initially in the reply brief of an appellant. (Hibernia Sav. and Loan Soc. v. Farnham (1908) 153 Cal. 578, 584.)" (Varjabedian v. City of Madera (1977) 20 Cal.3d 285, 295, fn. 11 (in bank) (Varjabedian).) Mother forfeited her contention.
5. Bests Interests of Son in Selecting His High School
Mother strenuously argues that the school choice decision was not in son's best interests because it disrupted the stability and continuity of his relationships in Danville. But she has failed to show that the court did not consider all evidence relevant to son's best interests in deciding which high school son would attend. In the absence of affirmative evidence to the contrary, we must presume that it did. (See Evid. Code, § 664 [statutory presumption that "official duty has been regularly performed"]; People v. Stowell (2003) 31 Cal.4th 1107, 1114 ["the general rule [i]s 'that a trial court is presumed to have been aware of and followed the applicable law. [Citations.]' [Citations.]"].) At the August 1, 2018 hearing, mother did not present expert evidence concerning any psychosocial factors relevant to the school choice decision. She did not show why son's significant relationships in Danville could not be preserved during son's time with her and through regular communication (online, text messaging, or phone calls) during son's time with father if SVHS was selected for son. Mother has not demonstrated that the court abused its discretion in selecting SVHS as the high school that would serve son's best interests. (See Burgess supra, 13 Cal.4th at p. 32.)
Without any citations to the appellate record, mother also suggests that the court improperly focused on her alleged misconduct in making the school choice decision. She asserts that punishment of her is "not a legally permissible basis for custody modification."
In C.T. & R.B., a case cited by mother, the appellate court reversed an order changing "primary physical custody" of a 12-year-old child from the custodial mother, who lived in California, to the noncustodial father, who had moved to Arkansas. (C.T. & R.B., supra, 33 Cal.App.5th at pp. 89-90.) Although the appellate court did not "condone or intend to minimize the seriousness of [the mother's] custody order violations" (id. at p.107), the court made clear that "[t]he focus should be on the best interests of [the child], and not on penalizing the custodial parent by removing the child from the parent." (Ibid.)
In LaMusga, the California Supreme Court stated: "[T]he superior court's function in determining custody is not to reward or punish the parents for their past conduct, but to determine what is in the best interests of the children. [Citation.] But this does not mean that the court may not consider the past conduct of the parents in determining what future arrangement will be best for the children. (See In re Marriage of Abargil [(2003)] 106 Cal.App.4th 1294, 1299 [finding that the mother respected the father's relationship with his son and was likely to foster continuing contact between them, noting her past efforts to nurture that relationship, and contrasting the father's disparagement of the mother's parenting skills]; In re Marriage of Lasich [(2002)] 99 Cal.App.4th 702, 719 [noting that the mother had never tried to block the father from exercising his visitation rights]; In re Marriage of Bryant [(2001)] 91 Cal.App.4th 789, 792 [noting, in permitting a change of the child's residence, that the mother had not 'unreasonably interfered with [the father's] visitation with the children'].) Clearly, the court must consider the past conduct of the parents in fashioning a custody order that serves the best interests of the children." (LaMusga, supra, 32 Cal.4th at p. 1094.)
Mother has not demonstrated on appeal that the court's school choice decision (or its later modification of the custodial time-sharing arrangements during the school year) was done to punish mother for her past behavior. (Cf. Birnbaum, supra, 211 Cal.App.3d at p. 1514.) C. Alleged Deprivation of Mother's Right to Due Process and a Fair Hearing
1. The Limited Time Allotted for the Hearing on School Choice
Mother asserts that the court denied her right to due process by limiting the hearing on school choice to one hour and that the court's time restrictions were unreasonable and prevented her from presenting material evidence and having a meaningful hearing. She argues that the court's congestion was not an excuse for denying her a more extensive hearing and that a family law proceeding should not be conducted on a stopwatch.
We agree that the heavy caseloads under which family courts labor present challenges to the courts and parties. But mother has failed to demonstrate that the amount of time allotted for the school choice hearing necessarily, in and of itself, deprived her of due process. We separately address her other substantive contentions. 2. Court's Alleged Failure to Comply with Section 217 and Rule 5.113
Mother argues that the "court ultimately relied on party declarations and limited cross-examination in contravention to [sic] Elkins and due process requirements." (See Elkins v. Superior Court (2007) 41 Cal.4th 1337 (Elkins).) Mother complains that the court denied her request for live witness testimony without making good cause findings in conformity with section 217 and rule 5.113.
Mother insists that the court "overlooked at least three crucial witnesses" on her witness list, namely the rabbi who had known son and his family since 2011, son's middle school guidance counselor, and an older half-brother of son who had previously graduated from SRVHS and was going to be a college senior in the fall of 2018. She argues that those witnesses would have provided "relevant evidence regarding [son's] educational, developmental, and spiritual needs" and testified that son's "social reputation within his 'social milieu' had not been tarnished."
In Elkins, the Supreme Court held that that a local superior court rule and a trial scheduling order that required parties to present their case by means of written declarations (Elkins, supra, 41 Cal.4th at p. 1344) were "inconsistent with the hearsay rule to the extent they render written declarations admissible as a basis for decision in a contested marital dissolution trial." (Id. at p. 1356.) It stated that "pursuant to state law, marital dissolution trials proceed under the same general rules of procedure that govern other civil trials." (Id. at p. 1345.) It observed that under the Evidence Code "[a]ll relevant evidence is admissible, including evidence bearing on the issue of witness credibility (Evid. Code, §§ 210, 351), and [that] the oral testimony of witnesses supplies valuable evidence relevant to credibility, a critical issue in many marital dissolution trials." (Id. at pp. 1356-1357.) But the court expressly stated that its "conclusion [did] not affect hearings on motions." (Id. at p. 1345, fn. 1.) The court's conclusion made it unnecessary to resolve "the difficult question whether the local rule and order violate[d] petitioner's right to due process of law." (Id. at p. 1357; see id. at p. 1345.)
"In response to Elkins, the California Legislature enacted section 217 (Stats. 2010, ch. 352, § 3) to alleviate the harsh effects stemming from the common practice of family law courts seeking to expedite family law proceedings by requiring litigants to rely primarily on written declarations in lieu of introducing live testimony. (Sen. Com. on Judiciary, com. on Assem. Bill No. 939 (2009-200 Reg. Sess.) as amended June 17, 2010.)" (In re Marriage of Binette (2018) 24 Cal.App.5th 1119, 1126.) "The purpose of section 217 is to encourage reliance on live, rather than written, testimony in family law proceedings. (Sen. Com. on Judiciary, com. on Assem. Bill No. 939 (2009-200 Reg. Sess.) Sept. 27, 2010.)" (Id. at pp. 1126-1127.)
Section 217 provides: "(a) At a hearing on any order to show cause or notice of motion brought pursuant to this code, absent a stipulation of the parties or a finding of good cause pursuant to subdivision (b), the court shall receive any live, competent testimony that is relevant and within the scope of the hearing and the court may ask questions of the parties. [¶] (b) In appropriate cases, a court may make a finding of good cause to refuse to receive live testimony and shall state its reasons for the finding on the record or in writing. The Judicial Council shall, by January 1, 2012, adopt a statewide rule of court regarding the factors a court shall consider in making a finding of good cause. [¶] (c) A party seeking to present live testimony from witnesses other than the parties shall, prior to the hearing, file and serve a witness list with a brief description of the anticipated testimony. If the witness list is not served prior to the hearing, the court may, on request, grant a brief continuance and may make appropriate temporary orders pending the continued hearing." (Italics added.)
Rule 5.113(a) provides that "[u]nder Family Code section 217, at a hearing on any request for order brought under the Family Code, absent a stipulation of the parties or a finding of good cause under (b), the court must receive any live, competent, and admissible testimony that is relevant and within the scope of the hearing." (Italics added.) Family courts must consider specified factors "in making a finding of good cause to refuse to receive live testimony under Family Code section 217." (Rule 5.113(b).) The specified factors include the rules of evidence. (Ibid.)
Those factors also include "(1) Whether a substantive matter is at issue . . . ; [¶] (2) Whether material facts are in controversy; [¶] (3) Whether live testimony is necessary for the court to assess the credibility of the parties or other witnesses; [¶] (4) The right of the parties to question anyone submitting reports or other information to the court; [¶] (5) Whether a party offering testimony from a non-party has complied with Family Code section 217(c); and [¶] (6) Any other factor that is just and equitable." (Rule 5.113(b).)
"Witness lists required by Family Code section 217(c) must be served along with the request for order or responsive papers in the manner required for the service of those documents (Witness List (form FL-321) may be used for this purpose). If no witness list has been served, the court may require an offer of proof before allowing any nonparty witness to testify." (Rule 5.113(e).) Mother did not use form FL-321, which allows a party to state the witnesses that the party intends to call to testify at the time of a particular hearing and the subject and brief description of each witness's testimony. Her list of "potential" witnesses was not attached to and served along with her initial responsive declaration to father's request for order (see FL-320). The list was belatedly attached as an exhibit to her "supplemental reply declaration."
During the August 1, 2018 hearing the court made clear that it had determined that the witness testimony proffered by mother was irrelevant to the school choice decision. Mother did not assert at the hearing that any of the "potential" witnesses were ready to give testimony that was germane to the school choice decision or that she was constitutionally entitled to present that testimony as a matter of due process. Neither did she ask the court to make good cause findings with respect to the witnesses on her potential witness list pursuant to section 217 and rule 5.113 and to state the reasons for its findings on the record or in writing. Instead, mother apologized for her potential witness list.
Even assuming arguendo that the individuals on mother's potential witness list had been subpoenaed and were ready to testify as live witnesses at the August 1, 2018 hearing—which does not appear to be true—and that she had a due process right to present relevant evidence of significant probative value, she forfeited her appellate contentions regarding any failure to hear their testimony by agreeing, through her counsel, to the procedure proposed by the court without preserving any claim that she was entitled to call them as witnesses at that hearing. " 'No procedural principle is more familiar to this Court than that a constitutional right,' or a right of any other sort, 'may be forfeited in criminal as well as civil cases by the failure to make timely assertion of the right before a tribunal having jurisdiction to determine it.' [Citation.]" (United States v. Olano (1993) 507 U.S. 725, 731 (Olano).) " 'The purpose of this rule is to encourage parties to bring errors to the attention of the trial court, so that they may be corrected. [Citation.]' [Citations.]" (In re Sheena K. (2007) 40 Cal.4th 875, 881 (Sheena K.).) "[A]n appellate court will ordinarily not consider procedural defects or erroneous rulings where an objection could have been, but was not raised below. [Citation.]" (In re Marriage of Falcone & Fyke (2008) 164 Cal.App.4th 814, 826 (Falcone & Fyke); see Doers v. Golden Gate Bridge etc. Dist. (1979) 23 Cal.3d 180, 184-185, fn. 1 (Doers).)
In any event, mother has not shown on appeal that she was offering admissible testimony that was competent, relevant, and within the scope of the hearing to select the high school that son would attend as a freshman. (See § 217, subd. (a); rule 5.113(a); see also Evid. Code, § 350 ["No evidence is admissible except relevant evidence"].) Moreover, as indicated, one of the factors that a court must consider "in making a finding of good cause to refuse to receive live testimony under Family Code section 217" is "[w]hether live testimony is necessary for the court to assess the credibility of the parties or other witnesses." (Rule 5.113(b)(3).) The court questioned the need to have mothers of son's friends testify as to mother's veracity and at one point indicated that it had a "year and a half worth of knowledge" about the case. It may be inferred from the court's remarks that it had determined that third-party live witnesses were unnecessary for the court to assess the parties' credibility.
Mother's potential witness list indicated that her sister, close personal friends, and mothers of son's friends would testify to her veracity.
In addition, as indicated, a good-cause finding under Family Code section 217 may be based on the rules of evidence and "[a]ny other factor that is just and equitable." (See rule 5.113(b) & (b)(6).) Every court has the inherent power "to control the disposition of the causes on its docket with economy of time and effort for itself, for counsel, and for litigants." (Landis v. North American Co. (1936) 299 U.S. 248, 254; see People v. Engram (2010) 50 Cal.4th 1131, 1146 [same]; see also Code Civ. Proc., § 128, subd. (a) [several powers of courts]; People v. Castro (1985) 38 Cal.3d 301, 306, fn. omitted [California Constitution's "Right to Truth-in-Evidence" provision (formerly Cal. Const., art. I, § 28, subd. (d); now Cal. Const., art. I, § 28, subd. (f)(2)) was not intended to abrogate trial courts' "traditional and inherent power . . . to control the admission of evidence by the exercise of discretion to exclude marginally relevant but prejudicial matter—as, indeed, is provided by Evidence Code section 352."].) It is our conclusion that a good cause for excluding evidence exists where a trial court in the exercise of its sound discretion determines that "its probative value is substantially outweighed by the probability that its admission will . . . necessitate undue consumption of time . . . ." (Evid. Code, § 352; cf. In re Romeo C. (1995) 33 Cal.App.4th 1838, 1843, 1846 [Although Welfare and Institutions Code section 706 requires a court at a dispositional hearing in a juvenile delinquency proceeding to receive in evidence "relevant and material evidence," the section cannot be read "without regard to Evidence Code section 352"].)
Mother has suggested that some of the witnesses could have provided "probative evidence" that son's "social reputation had not been tarnished by the custodial storms between his parents." It appears that one valid consideration in making the school choice decision was whether son would benefit from being in a school community where his parents' intense strife over him had not yet intruded and he could have a respite from their conflict. That concern is different from the issue framed by mother, namely, whether son's social reputation had been injured by his parents' "custodial storms." Although mother now claims that witnesses could have attested to her "reputation for truthfulness" (see Evid. Code, §§ 787, 1100), her potential witness list did not disclose that she intended to call any witness to testify on that subject. Further, mother fails to demonstrate that her reputation for truthfulness was more than marginally relevant to the choice of son's high school.
Mother has not demonstrated that any of her potential witnesses was an expert qualified to give an opinion of son's best interests in attending a particular high school (see Evid. Code, §§ 405, 720, 801) or to testify that J's attendance at SRVHS would facilitate certain significant relationships in Danville important to his well-being. The testimony of a lay witness concerning a particular matter is "inadmissible unless he has personal knowledge of the matter." (Evid. Code, § 702, subd. (a).) " 'Personal knowledge' means a present recollection of an impression derived from the exercise of the witness' own senses. [Citation.]" (Cal. Law Revision Com. com., 29B pt. 2A West's Ann. Evid. Code (2019 ed.) foll. § 702, p. 416, italics added.) " '[A]n examiner's question asking a lay witness to testify to facts that the witness has not personally observed, or to state an opinion not based on his or her own observations, calls for speculation and conjecture by the witness and is prohibited by' Evidence Code sections 702 and 800. [Citation.]" (People v. Rodriguez (2014) 58 Cal.4th 587, 631.) Evidence supporting only speculative inferences is irrelevant and inadmissible. (See Evid. Code, §§ 210, 350; People v. Kraft (2000) 23 Cal.4th 978, 1035.) A court is not required under section 271 and rule 5.113(c) to receive testimony that is incompetent, irrelevant, and/or inadmissible in the hearing at issue.
In sum, mother has not established that she preserved for review on appeal her contentions that the court improperly failed to make good cause findings in conformity with section 217, subdivision (b), and rule 5.113. Neither has she shown that the absence of express good cause findings constituted reversible error that "compromised her right to be meaningfully heard" in deprivation of her right to due process of law.
3. Court Did Not Set Contested Issues for Mediation
On appeal, mother complains that the section 3170 required the parties to engage in mediation before the court rendered its decision. She asserts that a court's "[f]ailure to set a child custody matter for mediation bars the court from proceeding to a custody/visitation hearing."
Section 3170, subdivision (a), requires the court to set a contested custody issue for mediation: "If 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." (Italics added.) "If a matter is set for mediation, . . . the mediation shall be set before or concurrent with the setting of the matter for hearing." (§ 3175.) Under the rule implementing mandatory mediation of contested custody issues, a mediator may terminate mediation "if the mediator believes that he or she is unable to achieve a balanced discussion between the parties." (rule 5.210(e)(7).) Where the parties fail to reach a mediated agreement, "the court shall set the matter for hearing on the unresolved issues." (§ 3185, subd. (a).)
Even assuming arguendo that section 3170 applied to the school choice issue, mother forfeited any objection to the court's school choice decision under section 3170 by not timely requesting mediation or raising the objection in the trial court at any time. Consequently, mother may not raise this issue for the first time on appeal. (See Olano, supra, 507 U.S. at p. 731; Sheena K., supra, 40 Cal.4th at p. 881; Falcone & Fyke, supra, 164 Cal.App.4th at p. 826; Doers, supra, 23 Cal.3d at pp. 184-185, fn. 1.)
We discuss below the applicability of section 3170 to a change to the form of physical custody.
Moreover, the stated purposes of a mediation proceeding include (1) reducing the "acrimony that may exist between the parties" (§ 3161, subd. (a)); (2) developing "an agreement assuring the child close and continuing contact with both parents that is in the best interest of the child, consistent with [s]ections 3011 and 3020" (§ 3161, subd. (b)); and (3) reaching "a settlement of the issue of visitation rights of all parties that is in the best interest of the child" (§ 3161, subd. (c)). In this case, the court had already put in place a dispute resolution process enabling the parties to work out their differences with professionals, a co-parent counselor and a parent coordinator with authority to make recommendations to the court. Given the parties' acrimonious and litigious history and their failure to avail themselves of the existing resources for dispute resolution, it seems highly unlikely that the parties would have reached a mediated agreement if the court had ordered mediation. It is not reasonably probable that mother would have obtained a more favorable result if the court had set the contested issues for mediation. (See Watson, supra, 46 Cal.2d at p. 836; Cal. Const., art. VI, § 13.)
Mother has not argued that the court's failure to order mediation pursuant to section 3170 was a jurisdictional defect that was not subject to harmless error review. (Cf. In re Marriage of Goddard (2004) 33 Cal.4th 49, 58-60 [failure to introduce proof of notice into evidence at trial as required by Code of Civil Procedure section 594 subject to harmless error review]; F.P., supra, 3 Cal.5th at p. 1102 [failure to issue a statement of decision as mandated by Code of Civil Procedure section 632 subject to harmless error review].) Consequently, any such contention was forfeited on appeal. (See Stanley, supra, 10 Cal.4th at p. 793; rule 8.204(a)(1)(B).)
Lastly, any violation of section 3170 did not in and of itself rise to the level of a due process deprivation. (See Engle v. Isaac (1982) 456 U.S. 107, 121, fn. 21 [The United States Supreme Court has "long recognized that a 'mere error of state law' is not a denial of due process. [Citation.]"].) Due process does not safeguard "the meticulous observance of state procedural prescriptions." (Rivera v. Illinois (2009) 556 U.S. 148, 158 ["Because peremptory challenges are within the States' province to grant or withhold, the mistaken denial of a state-provided peremptory challenge does not, without more, violate the Federal Constitution"].)
4. Alleged Cumulative Prejudice Amounting to a Due Process Violation
Mother argues that the court committed multiple procedural errors, which "singularly or cumulatively" resulted in "a violation of due process calling for reversal." She points to the court's "unreasonable time restrictions" on the school choice hearing, its allegedly "arbitrary" denial of her right to call witnesses and restriction of evidence to "declarations rather than direct testimony," its alleged failure "to make mandatory good cause findings pursuant to [section] 217 and rule 5.113," and its failure to order mediation.
We reject this argument with respect to the choice of high school for son. Some of mother's contentions were forfeited and others were meritless. This case is distinguishable from In re Marriage of Seagondollar (2006) 139 Cal.App.4th 1116 (Seagondollar), which mother cites. In Seagondollar, the appellate court determined that the trial court's multiple procedural errors, including its refusal "to trail or continue the matter for three days to permit [the father's] rebuttal expert to testify" (id. at p. 1127), cumulatively deprived the father of a fair hearing on the mother's request to move out of state. (Ibid.) This was not a move-away case, mother did not ask for a continuance of the school choice hearing to call a rebuttal witness, and we have not found multiple procedural errors with respect to the court's school choice decision.
The August 1, 2018 hearing was fundamentally fair, which is the touchstone of procedural due process. (See Gagnon v. Scarpelli (1973) 411 U.S. 778, 790; see also Lassiter v. Department of Social Services of Durham County (1981) 452 U.S. 18, 33.) D. Alleged Modification to Provide for De Facto Sole Physical Custody to Father
Mother argues that "[a]lthough the court claimed that it was maintaining joint 50/50 physical custody in its [order after hearing on August 1, 2018], in fact during the [August 27, 2018] hearing the court made no provision for summertime or holiday visitation that [f]ather had previously been granted, leaving this matter to be resolved through informal measures rather than court order." She asserts that the court left her "with substantially less than a 50% time-share that did not amount to true joint physical custody." She characterizes the modification of the custodial time-sharing arrangements as granting father "de facto sole physical custody" of son and allowing her only visitation with son.
As indicated, at the August 1, 2018 hearing, the court granted father's request that son attend SVHS, beginning with the 2018-2019 school year. The court specifically stated that the issue before the court was limited to the issue of school choice and that "50/50 custody arrangement" remained in effect. At the August 27, 2018 hearing, the court accepted the parties' recommendation that their custodial time-sharing schedule be reversed during the school year, so that mother would have son on Wednesday nights and on the same general weekend schedule as before, except that son would be returned to father on Sunday nights at 5:00 p.m. at the established exchange location. The court insisted that it was not ordering a reduction in custody time. But it acknowledged that holidays and vacations during the school year still needed to be addressed. The court referred the parties to the existing dispute resolution process that had been established. The court's written order provided that "[a]ll other custody and visitation orders not in conflict with this modification shall remain in full force."
2. Mother's Standing to Appeal
Father suggests that mother agreed to the change in custody schedule during the August 27, 2018 hearing and therefore she had no standing to appeal the order making father's home the primary residence during the school year and giving mother time with son on Wednesday nights and certain weekends. We find this argument disingenuous because mother's counsel had asked that the custody schedule be "flipped" for the entire year, not just the school year. Mother's counsel explained to the court that under the February 2015 custody orders father had a "substantial [portion of the] summertime in order to effect a 50/50 custody split" and asked for the holiday and vacation time allotted to father now be switched to mother to maintain that shared physical custody.
Mother's counsel tried to assert that changing the custodial time-sharing schedule for only the school year reduced mother's custodial time. But the court cut him off and admonished him for even suggesting that there had been any change in "the custodial time share." The court stated, " I do not and cannot see or hear that as a change or reduction in the custody schedule. And I, frankly, am surprised that you would even suggest such a thing." After adamantly maintaining that there had been no "change in the custodial time share," the court acknowledged that the holidays and vacations during the school year still needed to be addressed and reminded the parties to avail themselves of the established dispute resolution process with the co-parent counselor and the parent coordinator. The court indicated that it was unnecessary to schedule a further review of the custody situation given that there was an extrajudicial "procedure in place for that."
The court's formal written order following the August 27, 2018 hearing made clear that prior custody and visitation orders that were not in conflict with its modifications remained in full force and effect. The upshot was that under governing orders as modified, father had custody of son during most of the school week, spring break, and the majority of the summer.
For the purpose of appeal, "[a]n aggrieved person . . . is one whose rights or interests are injuriously affected by the decision in an immediate and substantial way, and not as a nominal or remote consequence of the decision. [Citations.]" (In re K.C. (2011) 52 Cal.4th 231, 236.) Mother was a "party aggrieved" (Code Civ. Proc., § 902), and she had standing to appeal.
3. Modification of the Custodial Time-Sharing Arrangements
As indicated, we are not convinced that mother agreed to accept the modified custodial time-sharing schedule during the school year without compensating time during the summer or other periods to maintain true joint physical custody. In light of the school choice decision, mother's counsel asked the court to largely reverse the custodial time-sharing schedule to maintain the roughly "50/50" custody split. Although father was not explicitly seeking sole physical custody of son at the August 27, 2018 hearing, his counsel proposed that father have custody of son Monday through Friday during the school year.
Citing Enrique M., father maintains that a change in a "parenting schedule" does not require a showing of a change in circumstances. In Enrique M., the parents had stipulated that their son's primary residence would be with mother when he was in school. (Enrique M., supra, 121 Cal.App.4th at p. 1375.) During the school year, the father had their son from Friday afternoon until Monday morning on the first, third, and fifth weekends of each month, the Thursday evening preceding each of his weekends, and overnight on the Thursday preceding the mother's weekends. (Ibid.) The father had "requested that the parenting schedule be modified to include overnights with him every Tuesday and Thursday" (id. at p. 1376) and that their young son be enrolled in a different track of his current year-round elementary school so that the son's "school schedule would coincide with [his older] daughter's school schedule" (ibid.) or, alternatively, that their son be enrolled in the school attended by his daughter. (Id. at pp. 1374, 1376.) The appellate court in Enrique M. stated that the mother had "not cited, and [its] research ha[d] not uncovered, any published California case in which a court has held that the changed circumstance rule applies to a request to modify the allocation of parenting time, where a preexisting joint custody order was in place and custody was not at issue." (Id. at p. 1379.) The appellate court held that "the standard of proof a parent sharing joint custody must meet to effect a change in parenting time is the best interest of the child, not changed circumstances." (Id. at p. 1373.)
It must be kept in mind that "joint physical custody" "means that each of the parents shall have significant periods of physical custody." (§ 3004, italics added.) In contrast to Enrique M., the court in this case significantly reduced the time during which mother had physical custody of son without providing her with compensating time during the year. Under the final custody orders as modified, father continued to have son during spring break and much of the summer. We agree that the court's modification of the custodial time-sharing arrangements in effect made father the year-round custodial parent while leaving mother with generous visitation. It appears that the court wished for the parties to try to work out the full custodial time-sharing arrangements in the extra-judicial dispute resolution process. However, the court did not make its modifications to the custodial time-sharing arrangements temporary and set a hearing at a later date to finalize the annual arrangements consistent with joint physical custody.
The court's March 22, 2018 order appointing Dr. Read as the new parent coordinator stated in part: "Substantial changes to time-share arrangements are reserved to the Santa Clara Superior Court for adjudication and may be presented to the court by either party upon the recommendation of the [parent coordinator] or in the form of an order to show cause or request for order. In an emergency, the [parent coordinator] may ask the court to initiate a[n] Order to Show Cause on its own motion."
"The Family Code does not define what amounts to 'significant' time with each parent for identifying a joint physical custody arrangement, but case law establishes guidelines to help answer that question. (In re Marriage of Lasich (2002) 99 Cal.App.4th 702, 715, 121 Cal.Rptr.2d 356 (Lasich), disapproved on other grounds by In re Marriage of Lamusga (2004) 32 Cal.4th 1072, 1097.)" (Celia S. v. Hugo H. (2016) 3 Cal.App.5th 655, 663.) " 'Where children "shuttle[ ] back and forth between two parents" [citation] so that they spend nearly equal times with each parent, or where the parent with whom the child does not reside sees the child four or five times a week, this amounts to joint physical custody.' (Lasich, at p. 715; see People v. Mehaisin (2002) 101 Cal.App.4th 958, 964; [In re Marriage of Biallas (1998) 65 Cal.App.4th 755,] 760 [joint physical custody exists when children spend four days each week with one parent and three days with other parent].)" (Id. at pp. 663-664.) "In contrast, where 'a father has a child only 20 percent of the time, on alternate weekends and one or two nights a week, this amounts to sole physical custody for the mother with "liberal visitation rights" for the father.' (Lasich, supra, 99 Cal.App.4th at p. 715; Biallas, supra, 65 Cal.App.4th at p. 760 [custody one day per week and alternate weekends constitutes liberal visitation, not joint custody]; In re Marriage of Whealon (1997) 53 Cal.App.4th 132, 138, 142 [same].)" (Id. at p. 664.) We conclude that the court's order modifying the custodial time-sharing arrangements in effect gave father de facto sole custody of son because mother retained no "significant periods of physical custody." (§ 3004; see Biallas, supra, at p. 760.)
We accept that case law has established that the change-in-circumstances rule does not ordinarily apply to an adjustment of a parenting or custodial time-sharing schedule that does not amount to a change in the form of physical custody. (See In re Marriage of Lucio (2008) 161 Cal.App.4th 1068, 1077; Enrique M., supra, 121 CA4th at p. 1373; Birnbaum, supra, 211 Cal.App.3d at p. 1513.) However, the rule clearly applies to a request to change the form of custody established in a final order, such as a proposed change from joint custody to sole custody or vice versa. (See Brown & Yana, supra, 37 Cal.4th at p. 956; LaMusga, supra, 32 Cal.4th at p. 1088.) The change-in-circumstances rule also logically applies to a request to modify a custodial time-sharing schedule that would, if granted, result in a de facto change in the form of custody from joint to sole. Further, if contested, such a modification request triggers the court's obligation to set the matter for child custody mediation (§ 3170) and to provide a statement of reasons if granted (§ 3087). Where a proposed modification of custody is contested, custody mediation is mandatory. (§ 3170, subd. (a).) As previously stated, the mediation must "be set before or concurrent with the setting of the matter for hearing." (§ 3175.)
Section 3087 provides: "An order for joint custody may be modified or terminated upon the petition of one or both parents or on the court's own motion if it is shown that the best interest of the child requires modification or termination of the order. If either parent opposes the modification or termination order, the court shall state in its decision the reasons for modification or termination of the joint custody order."
We agree that the court's order modifying the custodial time-sharing arrangements during the school year in effect granted father sole physical custody of son because the final custody orders as modified by the October 23, 2018 written order failed to continue to provide each parent with "significant periods of physical custody" (§ 3004) consistent with joint physical custody. In addition, the court failed to fully comply with the procedural requirements for modifying the form of physical custody from joint to sole. On the other hand, it clearly appears from the record that the court fully intended to continue joint physical custody and adamantly believed, albeit incorrectly, that it was doing so. Accordingly, we reverse the October 23, 2018 order insofar as it modified the custodial time-sharing arrangements.
In her reply brief, mother argues for the first time that the court impermissibly delegated the custody issue to the co-parent counselor and parent coordinator. That contention was forfeited (see Varjabedian, supra, 20 Cal.3d at p. 295, fn. 11), and we do not resolve whether the court improperly delegated its judicial function to make court orders to someone else. We also find it unnecessary to reach any remaining due process claims in light of our determinations and disposition. In addition, there is no need to decide in this appeal whether the court's selection of SVHS was a sufficient change in circumstances to warrant a change in the form of custody. --------
The September 5, 2018 order is affirmed. The October 23, 2018 order is reversed insofar as it modified the custodial time-sharing arrangements. We remand for further proceedings consistent with this opinion. The parties shall bear their own costs on appeal.
ELIA, ACTING P. J. WE CONCUR: /s/_________
MIHARA, J. /s/_________