Gianelli & Associates and Sarah J. Birmingham for Petitioner and Appellant. Law Offices of Anna R. Evans, Anna R. Evans; Channaveerappa & Phipps, John J. Hollenback, Jr., and Naresh Channaveerappa for Defendant and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 454947)
APPEAL from an order of the Superior Court of Stanislaus County. Robert B. Westbrook, Judge. Gianelli & Associates and Sarah J. Birmingham for Petitioner and Appellant. Law Offices of Anna R. Evans, Anna R. Evans; Channaveerappa & Phipps, John J. Hollenback, Jr., and Naresh Channaveerappa for Defendant and Respondent.
Father was granted temporary sole physical and sole legal custody of the child. Mother was granted limited supervised visitation. Mother requested increased visitation; father requested that he be permitted to move with the child to Idaho. The court tried the matters together. It concluded the child should be permitted to move away with father, but continuing the supervised visitation would effectively result in no visitation for mother. It ordered that the existing visitation arrangement continue until father and child relocated, but upon relocation, mother would be allowed unsupervised visitation, including 30 uninterrupted days during the child's summer vacation and specified holidays. Father appeals, contending the conditional order is designed to coerce him into abandoning his plans to relocate and does not give priority to concerns about the child's safety. We conclude the trial court properly considered the factors relevant to the issue before it, did not impose a coercive order, and did not give priority to other factors over the child's health, safety, and welfare. Accordingly, we affirm.
The facts have been taken primarily from the trial court's January 14, 2016, tentative decision and its March 4, 2016, final decision confirming the tentative statement of decision. Both parties rely on these documents as the source of most of the facts set forth in their briefs.
This custody dispute has been in litigation since 2011. Initially, mother was the primary custodial parent, but in a July 9, 2013, temporary custody order, father was designated as the primary custodial parent, with mother having visitation on alternate weekends and some weekdays. The "major source of conflict" that apparently led to the change in custody was mother's repeated unfounded allegations of child abuse made against father's wife. In December 2013, mother filed a request to modify custody to increase her time with the child. Prior to mediation, mother filed a declaration, again alleging child abuse by stepmother. The allegation was investigated and determined to be unfounded. In August 2014, father filed a request to modify custody in light of the latest unfounded accusation and, on September 9, 2014, was granted sole legal and sole physical custody of the child. Mother was limited to supervised visitation, twice a month for 45 minutes, pending trial of the custody issue. On September 23, 2015, father filed a request to relocate with the child to Idaho. Mother objected to the move and requested a move-away evaluation; none was ordered.
The custody issues went to trial in December 2015. The court addressed two issues: (1) whether the child should be permitted to relocate with father and (2) whether the temporary order made on September 9, 2014, remained appropriate in light of father's plans to move. After taking testimony from witnesses, including both parents, mother's therapist, and the counselor making child custody recommendations, the trial court determined the best interests of the child would be served by permitting the child to relocate with father to Idaho. It also found that, in light of the proposed move, a change in visitation was necessary. Until father moved, which he intended to do the following May or June, the supervised visitation would continue as previously ordered. After the move, however, the requirement of supervised visitation would be deleted and mother's visitation would include 30 uninterrupted days during the child's summer vacation, winter break in even-numbered years, Thanksgiving holiday in odd-numbered years, and spring break every year, all unsupervised.
Father filed objections to the custody order, challenging the weight the trial court gave to various portions of the evidence. On March 4, 2016, the trial court entered its final custody order; it confirmed its tentative statement of decision, with one modification not pertinent to this appeal. The final order permitted father to relocate to Idaho with the child, provided for supervised visitation by mother until father relocated, and provided for unsupervised visitation by mother after father relocated, with the holiday schedule specified. The trial court issued an amended order on May 26, 2016, apparently to correct inadvertent gaps in the language of the March 4, 2016, custody order. After both parties pointed out that neither the March 4 nor the May 26 order contained the provision for mother to have 30 days of unsupervised visitation during the summer, which had been included in the tentative decision, the trial court entered a new order on August 9, 2017, which included that provision.
Father appeals from the final custody order, challenging the portion of the order allowing mother's visitation to be unsupervised in the event of father's relocation, but continuing the supervision requirement in the event father retains his local residence. Father contends these two provisions were designed to coerce him to abandon his plans to relocate, because they are inconsistent and cannot both be supported by the same factual findings. Father also asserts the trial court abused its discretion by failing to give the child's safety priority.
I. Standard of Review
"In general, '[t]he standard of appellate review of custody and visitation orders is the deferential abuse of discretion test.' [Citation.]. In an initial custody determination, a trial court, considering all of the circumstances, has the widest discretion to choose a parenting plan that is in the best interests of a child." (F.T. v. L.J. (2011) 194 Cal.App.4th 1, 14 (F.T.).) Once a final judicial custody determination is in place, the "changed circumstance rule" provides that "a party seeking to modify a permanent custody order can do so only if he or she demonstrates a significant change of circumstances justifying a modification." (Montenegro v. Diaz (2001) 26 Cal.4th 249, 256.) When the custodial parent proposes relocating to another area with the child, the custodial parent "has a right to change the residence of the child, subject to the power of the court to restrain a removal that would prejudice the rights or welfare of the child." (Fam. Code, § 7501.) In that situation, "the noncustodial parent bears the initial burden of showing that the proposed relocation of the [child's] residence would cause detriment to the [child], requiring a reevaluation of the [child's] 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 [child]." (In re Marriage of LaMusga (2004) 32 Cal.4th 1072, 1078 (LaMusga).)
All further statutory references are to the Family Code.
Here, the trial court found the prior custody orders were temporary, rather than final, and mother therefore did not bear the initial burden of proving detriment arising from father's proposed relocation. Neither party has challenged that finding. Therefore, the basic "best interests of the child" test applicable to initial custody determinations, with its broad discretion, applies to the decision of the trial court. The question, then, is whether the trial court abused its discretion in ordering the custodial arrangement it did.
Generally, a trial court abuses its discretion if there is no reasonable basis to conclude its decision advanced the best interests of the child, or if its decision was influenced by an erroneous understanding of applicable law or an unawareness of the full scope of its discretion. (F.T., supra, 194 Cal.App.4th at p. 15.) "The appellant bears the burden of showing a trial court abused its discretion." (Id. at p. 16.)
" 'The abuse of discretion standard is not a unified standard; the deference it calls for varies according to the aspect of a trial court's ruling under review. The trial court's findings of fact are reviewed for substantial evidence, its conclusions of law are reviewed de novo, and its application of the law to the facts is reversible only if arbitrary and capricious.' " (Cahill v. San Diego Gas & Electric Co. (2011) 194 Cal.App.4th 939, 957.) Father cannot challenge the sufficiency of the evidence to support the trial court's findings of fact; a record of the testimony presented at trial would be necessary to such a challenge, and the record on appeal does not contain a reporter's transcript of the trial or its equivalent. (Cal. Rules of Court, rule 8.120; National Secretarial Service, Inc. v. Froehlich (1989) 210 Cal.App.3d 510, 521-522 (National).) Accordingly, we review only the trial court's interpretation of the law and whether the trial court's findings support the judgment. (National, at p. 522.)
II. Custody Order
"In making a determination of the best interests of a child, a trial court should consider various factors, including the health, safety, and welfare of the child [citation]; the nature and amount of contact with both parents [citation]; and which parent is more likely to allow the child frequent and continuing contact with the noncustodial parent." (F.T., supra, 194 Cal.App.4th at p. 20.) The factors for the trial court to consider in fashioning a custody order when the custodial parent proposes to change the child's residence include: "the children's interest in stability and continuity in the custodial arrangement; the distance of the move; the age of the children; the children's relationship with both parents; the relationship between the parents including, but not limited to, their ability to communicate and cooperate effectively and their willingness to put the interests of the children above their individual interests; the wishes of the children if they are mature enough for such an inquiry to be appropriate; the reasons for the proposed move; and the extent to which the parents currently are sharing custody." (LaMusga, supra, 32 Cal.4th at p. 1101.) The trial court must consider the effects of relocation on the best interests of the child. (F.T., at p. 21.)
A. Coercive order
A court must not issue a conditional order, transferring primary physical custody to the noncustodial parent in the event the custodial parent chooses to relocate, as a device to coerce the custodial parent into abandoning plans to relocate. (LaMusga, supra, 32 Cal.4th at p. 1098.) "Nor should a court issue such an order expecting that the order will not take effect because the custodial parent will choose not to relocate rather than lose primary physical custody of the children." (Ibid.) Father contends it is also impermissible for a trial court to make a visitation order conditioned on the custodial parent's relocation, to coerce the custodial parent to abandon his or her plans to move.
Father contends the visitation order is based on two contradictory findings: (1) that mother is a threat to the child's safety so her contact with him must be supervised if the child remains in California, and (2) mother is not a threat to the child's safety and her visitation need not be supervised if the child moves to Idaho. He contends the trial court's order improperly forces him to choose between relocating to Idaho and risking his child's safety, or remaining in California to protect his child.
In the September 9, 2014 custody order, father was temporarily granted sole physical and legal custody of the child, with limited visitation by mother, pending a full trial of the custody issue. When father requested that he be allowed to relocate with the child to Idaho, the trial court was required to determine whether that request should be granted. Once the trial court determined the child should be permitted to move with his father to Idaho, it was required to determine what visitation should be ordered; the existing order for twice monthly 45-minute supervised visits could not, as a practical matter, be carried out once father and child moved to Idaho. As the trial court noted, "the temporary orders that were made in September of 2014 were made with a different understanding of the parties' proximity and access to the child." In its March 4, 2016, order confirming its statement of decision, the trial court explained that, because father proposed to move at the end of the school year, some months in the future, it was required to make two decisions: what orders were needed in the event father moved with the child and what orders were needed in the interim.
Although father seemed to recognize a change in visitation would be needed if the child was permitted to relocate with father, father's only proposal was that mother be allowed supervised visitation only during father's summer visits with relatives in mother's area. This would mean mother would visit with the child only once a year during a short period, the length of which would apparently be within father's control.
The trial court summarized the pertinent trial testimony. Mother's therapist testified she had been treating mother since March 2015. She opined that mother made multiple child abuse allegations because she believed the child was being abused by stepmother, and she was trying to protect him. Mother's actions may have been the result of mother's childhood molestation and her family's failure to intervene on her behalf. The therapist believed mother was improving, posed no threat to her son, and was not likely to make false child abuse reports again.
The child custody counselor discussed the false allegations of child abuse and their possible effect on the child. She recommended that supervised visitation continue. In the absence of a move-away evaluation, she declined to offer a recommendation regarding custody in the event the trial court granted father's request to relocate.
Mother testified father's proposed move would be detrimental because she needed to reconnect with her son. She expressed a desire to communicate better with father, who does not inform her of their son's doctor's appointments, medical issues, or extracurricular activities. Mother stated that counseling was helping her understand the relationship between her childhood experiences and her reactions to the things her son told her; she also stated she accepted responsibility for her actions and expressed remorse about her conduct toward stepmother.
Father discussed the child abuse accusations and a 2012 "incident during an exchange in which [mother] 'attacked' his wife," as a result of which a restraining order was issued against mother. Father expressed a preference that mother have no contact with their son, although he understood the child had a bond with her. He admitted he had not communicated with mother about their son. Father stated he was uncomfortable speaking with mother, and had no interest in working with her toward normalizing relations between them.
In choosing a parenting plan, the trial court must "look to all the circumstances bearing on the best interest of the minor child." (In re Marriage of Burgess (1996) 13 Cal.4th 25, 31-32, italics omitted.) This includes "[t]he health, safety, and welfare of the child," and "[t]he nature and amount of contact with both parents." (§ 3011, subds. (a), (c).) Applying the paramount need for continuity and stability in custody arrangements (Burgess, at pp. 32-33), the trial court concluded it was in the best interest of the child to continue father's primary physical custody of the child and permit the child to move with father to Idaho.
The trial court noted there was a strong bond between mother and child, which would be negatively impacted by the child moving away with father, especially because father did not appear interested in fostering that relationship. It expressed "little confidence" that either parent could be trusted to ensure frequent and continuing contact with the other parent. The trial court stated that "[t]he current custody orders were made as a result of [mother's] continued and repeated involvement of CPS, out of concern that her conduct was potentially emotionally harmful to her son. The orders were also made with the understanding that [mother] would nevertheless continue to receive frequent and continuing contact with her son, albeit supervised." The trial court found father's proposal that, after he relocated, mother's visitation be limited to his summer visits was "woefully inadequate, and would effectively reduce contact with [mother] to nil." It was "persuaded by the testimony of [mother's therapist] that [mother] is not a danger to her son, and that she is not likely to call CPS in the future."
The trial court concluded: "In the end, this Court determines that the probable harm to the child caused by effectively severing the bond he has with his [mother] is greater than the risk of harm presented by permitting unsupervised contact." Noting father intended to move in May or June, the trial court ordered that supervised visitation continue as previously ordered until father relocated, although it indicated it would consider modifying the requirement of supervised visitation on a showing of progress in mother's counseling and a lack of documented alienating behavior during visitation. On father's move to Idaho, however, "the Court will delete the requirement that Mother's contact be supervised." At that time, mother's visitation would include 30 uninterrupted days during the child's summer vacation and specified holidays, all unsupervised.
We are not persuaded by father's argument that the visitation provisions that take effect upon father's relocation and the provisions that remain in effect in the interim are contradictory, but based on the same factual findings. We likewise reject father's position that the visitation orders are coercive in presenting him with an inappropriate choice. Father's argument inaccurately assumes the two visitation provisions are based on the same factual findings. The factual findings underlying the two provisions are not the same; they include the differences caused by the relocation of father and the child to Idaho. In its order confirming its statement of decision, the trial court observed that, once the child relocated, "[mother's] visitation is drastically reduced to holidays and summer visits, and it is the Court's belief that the physical distance achieved by this move, will also address many of the concerns that gave rise to the temporary orders in the first place." Because of the distance, the trial court could reasonably believe conflicts between mother and stepmother would be less likely to occur; also mother would be less likely to make reports to CPS about stepmother's conduct, with stepmother residing in another state.
The trial court also gave effect to the recommendation of the child custody counselor. The counselor described her areas of concern with mother's conduct. She recommended that supervised visitation continue, because mother still needed to exercise better impulse control, respect boundaries, and demonstrate insight into her own behaviors to keep them from recurring. The trial court's order continued supervised visitation in the interim until father's planned relocation, but left open the possibility of modification to eliminate the supervision requirement in the event mother could demonstrate she was making progress through therapy in the areas of concern.
The child custody counselor made no recommendation regarding visitation in the event the child moved out of state with father, because no move-away evaluation had been done. The trial court gave the counselor's concerns "significant consideration" in arriving at a visitation arrangement to take effect on the child's relocation.
The trial court's decision to modify the visitation order in light of father's decision to relocate was supported by the facts set out in the order. Without revision, the preexisting visitation schedule would have required that the child travel from Idaho twice monthly for 45-minute supervised visits with mother. Given the child's school schedule and the costs of interstate travel, the existing schedule was infeasible. Father's only proposal was to limit mother to supervised visitation during his visits to the area in the summer, which would deny her any visitation during at least nine months of the year. Father contends mother's visitation should continue to be supervised, even after the move to Idaho, but he has suggested no schedule, as an alternative to the trial court's visitation schedule, that would ensure the child's frequent and continuing contact with his mother while incorporating supervised visitation. He has not suggested how frequent and continuing supervised visitation could be maintained without excessive cost to the parties that might effectively prevent all, or almost all, visitation between mother and son.
In short, the trial court exercised its broad discretion in fashioning a visitation order that was designed to maintain the relationship between mother and child, despite the child's relocation with father to another state. Father has not demonstrated there was any coercive intent, or improper coercive effect, in the order. He has not demonstrated the trial court abused its discretion in fashioning the order.
B. Giving priority to child's safety
Father contends that, in making the visitation order that applies after relocation, the trial court should have given priority to the child's safety, but instead gave priority to fostering frequent and continuing contact with mother at the expense of the child's safety. Father asserts, and mother does not dispute, that the previous order requiring supervised visitation was made pursuant to section 3027.5. That section provides, in pertinent part:
"The court may order supervised visitation or limit a parent's custody or visitation if the court finds substantial evidence that the parent, with the intent to interfere with the other parent's lawful contact with the child, made a report of child sexual abuse, during a child custody proceeding or at any other time, that he or she knew was false at the time it was made. Any limitation of custody or visitation, including an order for supervised visitation, pursuant to this subdivision, or any statute regarding the making of a false child abuse report, shall be imposed only after the court has determined that the limitation is necessary to protect the health, safety, and welfare of the child, and the court has considered the state's policy of assuring that children have frequent and continuing contact with both parents as declared in subdivision (b) of Section 3020." (§ 3027.5, subd. (b).)
Father contends that, under section 3027.5, the trial court can consider the factor of frequent and continuing contact with the noncustodial parent only prior to making a determination that supervised visitation is required for the child's safety. Once the trial court has determined that supervised visitation is necessary to protect the health, safety, and welfare of the child, it cannot find that the need for frequent and continuing contact with the noncustodial parent nonetheless justifies ordering unsupervised visitation. Thus, father contends that, because the trial court retained the requirement of supervised visitation for the period prior to father's relocation, which must have been based on a determination that supervised visitation was necessary to protect the child's health, safety, and welfare, it could not permit unsupervised visitation after father relocates, even based on the need for frequent and continuing contact with mother. He argues the trial court could not "simply discard this requirement without ensuring the child's safety."
As the trial court pointed out, it was faced at trial with two decisions: (1) what custody and visitation orders to make in the event of father's move to Idaho, and (2) in light of his stated intention to move a few months in the future, what custody and visitation orders would apply in the interim. As to the interim period, the trial court apparently found no change in circumstances sufficient to warrant modification of the existing order imposing supervised visitation. Although it was persuaded by the testimony of mother's therapist that mother was not a danger to the child and was not likely to call CPS again, and it found mother had made progress in her personal counseling, it also found mother still had more work to do on her behavior. It left the door open for mother to request modification to eliminate the supervision requirement, on a showing of progress in overcoming the behaviors that had precipitated the imposition of that requirement.
As to the order that would apply upon father's relocation with the child, the trial court found the "proposed move change[d] the calculus." The trial court was entitled to, and did, separately analyze the situation after the move, to determine whether supervised visitation would be appropriate. It stated: "while the Court finds that the existing orders were appropriate when made, [father's] intended move changes the environment vis-a-vis the statutory policy encouraging 'frequent and continuing contact with both parents.' . . . In the end, this Court determines that the probable harm to the child caused by effectively severing the bond he has with his [mother] is greater than the risk of harm presented by permitting unsupervised contact." Thus, in accordance with section 3027.5, subdivision (b), in determining whether to impose supervised visitation, the trial court considered both whether supervised visitation was necessary to protect the health, safety, and welfare of the child, and the state's policy of assuring that children have frequent and continuing contact with both parents. After considering both factors, the trial court declined to impose a requirement of supervised visitation.
Father next cites section 3020 and argues that the child's safety must be given priority over other considerations in making custody and visitation orders. Section 3020 provides, in pertinent part:
"(a) The Legislature finds and declares that it is the public policy of this state to assure that the health, safety, and welfare of children shall be the court's primary concern in determining the best interest of children when making any orders regarding the physical or legal custody or visitation of children. The Legislature further finds and declares that the perpetration of child abuse or domestic violence in a household where a child resides is detrimental to the child.
"(b) The Legislature finds and declares that it is the public policy of this state to assure that children have frequent and continuing contact with both parents after the parents have . . . ended their relationship . . . .
"(c) Where the policies set forth in subdivisions (a) and (b) of this section are in conflict, any court's order regarding physical or legal custody or visitation shall be made in a manner that ensures the health, safety, and welfare of the child and the safety of all family members." (§ 3020.)
Father asserts this section makes the child's health, safety, and welfare the trial court's paramount consideration in determining the child's best interests, and it even takes precedence over frequent and continuing contact with both parents. He then states "the trial court made an initial determination that the child was not safe in the unsupervised care of Mother and, therefore, ordered that Mother have only limited supervised contact." The cited portion of the record does not reflect such a finding. Father argues that, despite this finding, the trial court concluded "the probable harm to the child caused by effectively severing the bond he has with his [mother] is greater than the risk of harm presented by permitting unsupervised contact." He complains the trial court's order failed to protect the child from mother's abusive behavior.
We note there was no suggestion that mother ever physically harmed the child. The statement of decision however, indicates there was testimony by the child custody counselor that discussing false accusations of child abuse with the child or giving the child false information "can interfere with development, inhibit relationships, and is confusing and stressful to the child." She opined that "this can be a form of emotional abuse, and could result in a number of disorders."
As previously discussed, the trial court's statement of decision indicates it complied with section 3027.5, subdivision (b), by considering both the protection of the child's health, safety, and welfare, and the policy of assuring the child's frequent and continuing contact with mother, before determining whether to impose supervised visitation after the child's relocation. The trial court weighed these considerations and exercised its discretion to permit unsupervised visitation. Further, we believe both "the probable harm to the child caused by effectively severing the bond he has with his [mother]" and "the risk of harm presented by permitting unsupervised contact" with mother are aspects of the "health, safety, and welfare" of the child. Both were properly considered by the trial court in determining the best interests of the child. The trial court's statement does not indicate it improperly gave precedence to "frequent and continuing contact with both parents" over "the health, safety, and welfare" of the child.
Finally, father argues the visitation order will endanger the child after father moves. In support, he cites the testimony of the child custody counselor that mother's past conduct could "interfere with development, inhibit relationships, and is confusing and stressful to the child," and "could result in a number of disorders, such as depression, anxiety, somatic complaints, and even post-traumatic-stress-disorder." But father cannot challenge the sufficiency of the evidence to support the trial court's findings, or the weight given by the trial court to any particular evidence, in this judgment roll appeal. (See National, supra, 210 Cal.App.3d at pp. 521-522.) We cannot reweigh the evidence; we can only determine whether the trial court's factual findings support its order. The trial court set out the testimony it considered in reaching its decision. It accepted the testimony of mother's therapist that mother is not a danger to the child and is not likely to call CPS again. It considered the child custody counselor's concerns about mother's conduct. The trial court also took into account the changes that would occur because of the child's move to Idaho. It considered and balanced the statutory factors and set out its findings on those factors.
Father has not met his burden of demonstrating that the trial court's findings do not support its decision. He has not shown that the trial court abused its discretion by entering a custody and visitation order that permits mother to have unsupervised visits with the child in the event the child moves with father to another state.
The challenged custody and visitation order is affirmed. Mother is entitled to her costs on appeal.
Judge of the Fresno Superior Court assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution. --------