Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County. Duke D. Rouse, Judge. (Retired judge of the San Bernardino Super. Ct. No. SBFSS84672 assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.)
Vincent B. Garcia for Defendant and Appellant.
Victor J. Daniels for Plaintiff and Respondent.
OPINION
HOLLENHORST J.
I. INTRODUCTION
Defendant Andrew Delgado (father) appeals from an order denying his requests for a change in custody and for attorney fees. Father contends the trial court erred in applying the change of circumstances test when denying his request for a change of custody, and that the trial court’s decision should be reversed because a change in custody was in the child’s best interest. We find that the trial court applied the appropriate legal standard in maintaining the present custody arrangement and did not abuse its discretion in denying attorney fees.
II. FACTS AND PROCEDURAL BACKGROUND
On February 11, 2002, Carla Carias (mother) gave birth to a baby girl (the child). Mother and father were never married and never lived together. Shortly after the birth of the child, father married Amanda (wife).
Mother sought a determination of paternity against father and requested that the court enter orders on custody, visitation, and support. Father responded with an order to show cause asking for primary physical custody of the child, with visitation for mother. After a blood test confirmed father’s paternity, on July 8, 2002, the trial court issued orders determining paternity and awarding mother “legal and physical custody of the minor child subject to defined visitation” by father. Father was granted three hours of visitation every Monday, Wednesday, and Friday afternoon. This schedule was modified on August 21, 2002, giving father six hours of visitation every Saturday instead of weekday visitation time.
The trial court extended father’s Saturday visitation time by an hour on March 10, 2003. On July 28, 2003, the trial court modified the previous order to grant both parties joint legal custody of the child, but left primary physical custody with mother. Father’s visitation time was changed to the first and third weekends of every month between 10:00 a.m. Saturday morning and 7:00 p.m. Sunday evening, with eight hours of visitation on the fourth Saturday of the month, and a set holiday visitation schedule.
Due to hostilities, mother and father met at the Fontana Police Department for their exchanges. Father instigated several police reports against mother for being late or not showing up for exchanges.
The trial court modified father’s visitation schedule once more on January 13, 2004, granting father visitation on alternating weekends from 4:00 p.m. on Friday and continuing until 7:00 p.m. Sunday, plus three hours of visitation every Wednesday.
On July 11, 2004, mother noted a bruise on the child’s lower back and reported to law enforcement officers that father had physically abused the child. The police concluded that same day that the child’s injuries “did not appear in any way to be abuse.” Child Protective Services launched an investigation and opened a juvenile dependency case. Father’s visitation was reduced to limited supervised visits.
The juvenile dependency case was dismissed around October 4, 2004, after mother failed to show up and give testimony. The investigators and police officers specifically concluded that, although the source of the marks could not be determined, the marks did not appear to be from abuse. Children’s Assessment Center (CAC) medical examiners could not agree as to the nature or the reason for the marks, but the child did not report being afraid of either mother or father, and both parents appeared to be protective.
In February 2005, mother placed the child in therapy with Bertha Head, LMFT, because the child had been crying before she went to visit father and had experienced nightmares since she started visitation. The child told Head that father “pulls her head and hits her on the forehead,” and had told her not to speak to anyone. Head noted the child threw a boy toy under a chair after they named it “Daddy Andrew,” drew pictures of father and wife and said they were both mad, and said father hit her on the back of her head with his hand and that wife had pulled her hair and bathed her in very hot water. The child also said father fed her only bread and milk. Head filed a report with Child Protective Services, instigating a new dependency case. It is unclear from the record whether or not mother was present during these sessions.
After a second juvenile dependency action was dismissed as unfounded, visitation resumed. Father went to mother’s residence to pick up the child, but mother refused to allow the visitation until the police intervened, insisting that father could only have supervised visits.
On May 1, 2005, father had custody of the child. The child complained of stomach aches, so father and wife took her to the doctor, where she was diagnosed with stomach flu. Father and wife were warned that she might experience diarrhea.
On May 2, 2005, mother told Head the child had reported to her that father had touched her privates “with his big hairy finger.” Head filed another written report with the Department of Children’s Services. That same day, mother took the child to the doctor, who stated, “‘No evidence of tearing, only redness related to diarrhea.’”
It is not clear whether Child Protective Services (CPS) referred to in the record is the same entity as Department of Children’s Services (“DCS”) also referred to. As of April 2009, San Bernardino Department of Children’s Services changed its name to San Bernardino Children and Family Services, so we will hereafter refer to it as “CFS.”
On May 6, 2005, mother requested sole legal and physical custody of the child and termination of father’s visitation. Mother provided declarations of Head, Sonia Carias (the child’s maternal grandmother), and mother, declaring that father was sexually abusing the child. In response, father asked that the court award joint physical custody of the child on a “fifty-fifty basis.”
The police investigated the claim of sexual abuse and concluded the allegations were unfounded. The investigating CFS social worker referred the child to CAC and the result was a “‘normal anal-genital exam.’” CFS closed the case due to “‘no marks to validate.’” The police closed the case as unfounded sexual abuse. The police report stated, “‘[The child] said he touched me with a big finger that looked like a wolf’s finger. Police officer felt there was evidence of coaching.’”
The parties went into mediation on May 16, 2005. Father contended that mother was intentionally frustrating visitation and programming the child to make false abuse statements, and therefore he should receive full custody. Mother maintained that father should only be granted supervised visitation until the child stopped making complaints about abuse. The mediator found no reason to require supervised visits for father, in light of the continued lack of findings for any abuse allegations, and returned visitation to the normal schedule with adjustments to accommodate mother’s move and change of employment.
On May 22, 2005, mother married Keith (husband). Mother was pregnant at this time with husband’s child. Husband had two young sons from a previous relationship, one older than the child and one younger than the child. Husband shared fifty-fifty custody of the two boys with their biological mother.
On June 16, 2005, a family friend of mother reported the child said to her: “‘My daddy touches my butt. He hurt me. [Wife] pulls my hair.’” The friend, a counselor, reported the statement. Head made an additional report of sexual abuse on June 20, 2005, claiming the child told her that father touched her privates front and back, and not while she was on the toilet. These reports were determined to be unfounded.
On August 9, 2005, mother requested that father be given supervised visitation until the time of trial, and attached the same declaration written by Head alleging abuse that had already been determined to be unfounded. In the declaration, mother informed the court that she was experiencing complications with her pregnancy and was ordered by her doctor not to be in court or under deposition while pregnant. Mother attached a note from her doctor, written on a prescription pad stating “No [d]eposition while pregnant.”
Head made an additional report of sexual abuse on September 1, 2005, reporting that the child claimed father was rubbing her privates with a “pencil.” This was determined to be unfounded.
Following a hearing on September 28, 2005, the trial court granted a protective order preventing mother from being deposed until after giving birth.
On October 19, 2005, Head made a report of emotional abuse. This report was determined to be unfounded.
Mother gave birth to a baby girl in December 2005.
On December 13, 2005, Head made yet another report of sexual abuse. As with all the other allegations of abuse, this report was determined to be unfounded.
Mother and father went into mediation on January 20, 2006. Mother requested that father have no contact with the child because of the December 13, 2005, allegation that father had sodomized the child while wife unsuccessfully begged father to stop. Father also requested full custody, claiming mother might be “planting” these accusations in the child’s mind.
On January 23, 2006, CFS worker Angela Gordon Nicholas, told the mediator she was trying to contact Head to ask her “‘not to make any other referrals unless there is new information.’” When Nicholas asked the child why people thought there was a problem, the child replied, “‘because my mom thinks so.’” Nicholas said it “‘feels like she’s been programmed by mother’s family.’” The mediator was unable to determine what was actually taking place and stated her belief that “[i]t is time for a 730 Evaluation of both parents, daughter, and each parents’ spouses.”
On February 3, 2006, the trial court appointed Laura A. Brodie, Ph.D., to perform an Evidence Code section 730 evaluation (730 evaluation) focusing on the claims of sexual and physical abuse.
On July 12, 2006, the child told Dr. Brodie that father was touching her sexually. Dr. Brodie reported the statements to CFS based on her legal duty to do so, although Dr. Brodie determined during her interview of the child that “[the child] could not produce a credible statement.” The social worker involved with the case, Vicki Lopez, informed Dr. Brodie that “she was going to close the case unfounded for abuse and was thinking of sustaining emotional abuse on the part of the mother.”
Lopez told Dr. Brodie the child was bonded to both mother and father, and both homes were loving. Despite the reports of abuse, the child showed no fear of father and interacted with father and wife in a relaxed manner. When Lopez and an associate asked to speak to the child at father’s house, the child asked if wife could sit with her and told them she really liked wife. The child denied being touched by father or being hurt by wife.
Despite repeated findings of no abuse, mother pursued her request that father have only supervised visits with the child, and maintained through the day of trial that father had abused their daughter.
Dr. Brodie submitted her report on December 7, 2006. She stated that, while father and mother clearly love their daughter, their hostility has had a negative impact on her. The child appears to have been subjected to confusing and distressing “he-said-she-said” by both parents and has been unable to discern between reality and fantasy. Dr. Brodie thought that Head’s use of play therapy has aggravated this problem. Dr. Brodie explained that “[The child] has been made so confused about truth and lie she has no idea what to say to please the adults.” Dr. Brodie expressed concern over the way the child was being psychiatrically treated by Head, indicating concern with the use of play to vilify father and the alienation of him as a parent.
Dr. Brodie thought both parents had the resources to provide a safe home environment for the child, but that mother would provide a safe home for the child only if mother were willing to drop the accusations against father. According to Dr. Brodie, mother projected her own hurt from her relationship with father onto the child, assuming that if father could hurt mother, he could hurt the child. If mother could not move past her hurt and pain and stop projecting it out on the child, Dr. Brodie did not believe mother’s home would be safe for the child. “If [the child] has not been abused and she believes she has, there are many psychological issues that develop later in life.”
Dr. Brodie recommended that the court change primary physical custody of the child from mother to father with a visitation schedule for mother. Dr. Brodie explicitly testified that it would not be in the best interest of the child to remain in mother’s custody or home and it could even be detrimental to leave the child with mother. No additional expert testimony was provided as to what custody arrangement would be in the best interest of the child.
Mother hired Michael Kania, Ph.D., a forensic psychologist with experience in performing section 730 evaluations, to criticize Dr. Brodie’s report. Dr. Kania testified that he had been retained by mother to “answer questions about the manner which [Dr. Brodie’s] report was conducted,... ” but not to make an independent evaluation or recommendations as to the best interests of the child. The court further admonished the parties that Dr. Kania “has not made any recommendations.”
In his testimony, Dr. Kania expressed concerns with how Dr. Brodie performed the section 730 evaluation, specifically stating the “recommendations did not seem to follow from the information... expressed in the report as a result of both the interviews and the testing of the parties.” Dr. Kania expressed three major sources of concern. First, Dr. Kania found it concerning that Dr. Brodie’s evaluation was not balanced, since Dr. Brodie had met with the child, father and wife, but never with the child, mother, husband, and the child’s half sister and stepsiblings. Second, although he never saw the tests themselves, Dr. Kania was concerned that some of the issues potentially raised in the summary regarding father’s personality traits were not addressed in the report. Third, Dr. Kania was concerned with the lack of description of the child’s cognitive functioning, including the types of statements the child made while with mother or father. “There were some selected comments.... But there was no overall description of [the child], of any report she made of how she felt about her father, mother, what she did when she was with her parents, those sorts of comments.”
In its statement of decision, the trial court applied the changed circumstances test and determined that father failed to meet his burden of proof that circumstances had changed such that a change of custody would be in the child’s best interest. The court denied both mother’s and father’s motions for modification of custody and entered judgment with substantially the same custody arrangement as before.
Although the trial court relied heavily on facts not in evidence in stating its reasons for denying custody change, it was clear that the court was concerned about the impact separating the child from her half sister and stepsiblings on a permanent basis would have on the child. Specifically, the court was concerned with the effect that going from a household with three siblings to a household with no siblings would have on the child. Although Dr. Kania never expressed the belief that a separation would necessarily be detrimental to the child, he did say the effect of separation should have been addressed by the evaluation, but was not. The trial court pointed out that Dr. Brodie did not “provide any testimony, written or oral, about what effects separation of the minor from her sister or other two step-siblings” would have, calling this “a rather substantial issue.”
Additionally, in its statement of decision, the trial court stated that, while it had concerns regarding mother’s history of frustration of visitation, it believed she would not do so in the future. The court did not state a reason for this belief, although there is some indication that mother had appeared more willing to cooperate following the release of Dr. Brodie’s report.
III. STANDARD OF REVIEW
Father contends we must apply the de novo standard of review because the trial court incorrectly applied the changed circumstances test instead of the best interests of the child test in ruling on his request for a change in primary physical custody and visitation.
We apply de novo review to determine whether the trial court applied the correct test. (Enrique M. v. Angelina V. (2004) 121 Cal.App.4th 1371, 1378.) If we determine the trial court applied the correct test, we review the trial court’s ruling for abuse of discretion. (In re Marriage of Burgess (1996) 13 Cal.4th 25, 32 (Burgess).) Under the deferential abuse of discretion test, “we must uphold the trial court ‘ruling if it is correct on any basis, regardless of whether such basis was actually invoked.’ [Citation.]” (Montenegro v. Diaz (2001)26 Cal.4th 249, 255 (Montenegro).)
A. Tests for Custody Determinations
There are two tests that trial courts apply to custody determinations: the best interests test and the changed circumstances test. (Montenegro, supra, 26 Cal.4th at p. 256.)
The best interests test applies in initial custody determinations and where no change in custody is sought (Enrique M. v. Angelina, supra, 121 Cal.App.4th at p. 1382 [parents had joint physical custody of child]), and when no final custody decision has been made. (In re Marriage of LaMusga (2004) 32 Cal.4th 1072, 1089 (LaMusga).) The overarching concern when coming to an initial custody arrangement is the best interest of the child. (Montenegro, supra,26 Cal.4th at p. 255.) “[T]he [trial] court has ‘“the widest discretion to choose a parenting plan that is in the best interest of the child’” [citation], but ‘must look to all the circumstances bearing on the best interest of the minor child.’ [Citation.]”
The changed circumstance test, which applies when a change in an already decided custody arrangement is being sought, “‘is not a different test, devised to supplant the statutory test, but an adjunct to the best-interest test. It provides, in essence, that once it has been established that a particular custodial arrangement is in the best interests of the child, the court need not reexamine that question. Instead, it should preserve the established mode of custody unless some significant change in circumstances indicates that a different arrangement would be in the child’s best interest. The rule thus fosters the dual goals of judicial economy and protecting stable custody arrangements.’ [Citation.]” (Montenegro, supra, 26 Cal.4th at p. 256.)
The trial court determined that father failed to show a significant change in circumstances and failed to meet his burden of proof that a change in custody would be in the best interests of the child. In order to determine whether the trial court applied the correct test and determine our standard of review, we must first look at the finality of the order and the nature of the custody arrangement.
B. Final Custody Order
Father argues the changed circumstance rule did not apply, because there had been no final order. We disagree.
For the changed circumstances test to apply, there must be “a prior custody decision based upon circumstances then existing which rendered that decision in the best interest of the child.” (Burchard v. Garay (1986) 42 Cal.3d 531, 534 (Burchard).) Without a prior determination, there are no preexisting circumstances to be compared to new circumstances, leaving the trial court “no alternative but to look at all the circumstances bearing upon the best interests of the child.” (Ibid.)
There need not be an express indication that a court order is intended to be final for it to fall under the changed circumstances rule. (See LaMusga, supra, 32 Cal.4th at p. 1089, fn. 2.) In LaMusga, the court found that an “‘Order After Hearing,’ granting joint legal custody to the parties and primary physical custody to the mother, constituted a final judicial custody determination that the court need not reconsider in the absence of changed circumstances.” (Ibid.)
A child custody determination is conclusive with respect to all persons who have had an opportunity to be heard as to all decided issues of law and fact. (Fam. Code, § 3406.) A trial court’s decision to revisit the issue of visitation does not affect the finality of the original custody determination. (See LaMusga, supra, 32 Cal.4th at pp. 1088, 1089, fn. 2.) While the trial court must consider the best interests of the child when making its decision, there is no requirement that final custody and visitation orders contain a statement that the custody arrangement is in the best interests of the child. (§§ 3011, 3048, subd. (a).)
All further statutory references are to the Family Code unless otherwise noted.
Looking at the facts, we find there was a final custody order in this case. After a contested hearing, the trial court ordered physical custody of the child to mother with set visitation for father on July 8, 2002. A judgment on the issue of paternity was filed and entered on September 3, 2002. Although there were a number of modifications to the visitation schedule, most increasing father’s visitation time as the child grew older, the basic custody arrangement has remained unchanged since the July 28, 2003, court order granting mother primary physical custody and both parents joint legal custody of the child. Even the visitation schedule has not been substantially modified since January 13, 2004, except for interruptions caused by the reports of abuse. The trial court never stated that its orders were temporary, and even if the orders were not intended to be final, we find it significant that the court has declined to grant any changes to the basic physical custody arrangement over the child’s life.
Father contends that no finality can be presumed in a custody decision where a child was only five months old at the time the order was entered. However, he provided no support for that proposition, nor did we find any.
Moreover, even in the absence of a final order, the maintenance of a custody arrangement over a significant period of time may require a showing of changed circumstances when a party seeks modification. (In re Marriage of Carney (1979) 24 Cal.3d 725, 730, 731 (Carney).) In Carney, a mother attempted to obtain custody of her children from their quadriplegic father after five years where the mother made little effort to be a part of the children’s lives. (Id. at p. 729) The court required that the mother show changed circumstances, even though there had been no prior court order or express agreement by the parties establishing the custody arrangement. (Id. at p. 730.)
While we agree with father that the facts of this case differ from those in Carney, the basic principles still stand. It is important to protect established modes of custody. (Burchard, supra, 42 Cal.3d at p. 537.) The California Supreme Court specifically described Carney as affirming the importance of stability in custody arrangements, placing the burden upon the person seeking to alter a long-established arrangement to show that a change would be in the child’s best interest. (Burchard, supra, at p. 537.) Indeed, when the trial court finds both parents equally capable, it acts within its discretion in using the “‘stability’” factor as the “tie-breaker.” (Lester v. Lennane (2000) 84 Cal.App.4th 536, 594.)
The basic custody arrangement in this case has remained static since the child’s birth, a period of five years as of the date of the trial. Even if the custody order was not final, the substantial period of time this child has spent in the present custody arrangement warrants an examination of a requested change under the changed circumstances test.
C. Custody Dispute
Even when there is a final custody determination, the changed circumstances test does not apply when the parents have joint physical custody. (In re Marriage of Biallas (1998) 65 Cal.App.4th 755, 759 (Biallas).) In the absence of an agreement by the parents to joint custody, there is no judicial presumption in favor of either joint or sole physical custody. (§§ 3040, subd. (b), 3080.) The courts are given “the widest discretion to choose a parenting plan that is in the best interest of the child.” (§ 3040, subd. (b).)
Here, the custody order stated that mother was awarded primary physical custody of the child. However, the term “primary physical custody” has no legal meaning. (Biallas, supra, 65 Cal.App.4th at p. 759.) In its statement of decision, the trial court referred to father as “the non-custodial parent,” implicitly suggesting that father did not have de jure joint physical custody with mother. However, there was no express identification of the type of custody.
Where the court has not expressly identified the type of custody “the trial court looks at the existing de facto arrangement between the parties to decide whether physical custody is truly joint or whether one parent has sole physical custody with visitation rights accorded the other parent.” (Biallas, supra, 65 Cal.App.4th at pp. 759-760.) The court may grant joint legal custody without granting joint physical custody when it makes an order for custody with respect to both parents. (§ 3085.)
Joint physical custody exists when the child spends significant time with both parents. (§ 3004.) For example, in Brody v. Kroll (1996) 45 Cal.App.4th 1732, the trial court found joint physical custody when the father saw the child four or five times a week as part of his joint custody time. (Id. at p. 1735.) In In re Marriage of Battenburg (1994) 28 Cal.App.4th 1338, disapproved on other grounds as stated in In the Marriage of Whealon (1997) 53 Cal.App.4th 131, 140 (Whealon), the trial court found joint physical custody when the child spent four days a week with one parent and three days with the other. (In re Marriage of Battenburg, supra, at p. 1342.) The division of physical custody in this case was more like that in Whealon, supra, at page 137, where the father had alternate weekends and one weeknight every week, as well as other periods agreeable to the parties. The court held that such a custody arrangement did not constitute joint custody, but rather sole physical custody to the mother with “generous visitation rights” for the father. (Whealon, supra, at p. 142.)
We agree with Whealon that custody arrangements such as the one in this case do not constitute de facto joint physical custody. Mother has sole physical custody of the child subject to father’s defined visitation rights. Thus, the trial court did not err in applying the changed circumstances test and the appropriate standard of review in this case is abuse of discretion.
IV. CUSTODY DISPUTE
A party seeking to modify a permanent custody order can only do so by showing a significant change of circumstances so affecting the child that modification is “essential to the child’s welfare.” (Burgess, supra, 13 Cal.4th at p. 37.) In the absence of any changed circumstances, a modification would be an abuse of discretion as denying the child the benefits of a stable home environment and thus would not be in his or her best interests. (See Burchard, supra, 42 Cal.3d at pp. 537-538.)
As the California Supreme Court has repeatedly emphasized, “the paramount need for continuity and stability in custody arrangements—and the harm that may result from disruption of established patterns of care and emotional bonds with the primary caretaker—weigh heavily in favor of maintaining ongoing custody arrangements.” [Citations.]” (Burgess, supra, 13 Cal.4th at pp. 32-33.) Making custody decisions that alter the status quo involves “the potential harm of disrupting bonds established when one parent has been the primary caretaker from birth. To disrupt that relationship requires a showing that overcomes the fact that a child has thrived with a caretaker....” [Citation.] (In re Marriage of Heath (2004) 122 Cal.App.4th 444, 448.)
It is the burden of the parent seeking a change of custody to persuade the trier of fact that a change of custody is in the child’s best interest where custody has been lawfully acquired and maintained for a significant period. (Burgess, supra, 13 Cal.4th at p. 37; Lester v. Lennane, supra, 84 Cal.App.4th at p. 592.) The trial court found that father failed to meet this burden.
Although father claims that mother obtained custody of the child over a significant period of time by utilizing bad faith tactics, this is irrelevant to the determination in this case. The fact remains the child has legally lived under the present custody arrangement since her birth. Although we certainly understand father’s frustration with mother’s bad faith tactics (whether perceived or actual), the fact remains this custody decision was and is about what is best for the child, not what is best for father or mother. (§§ 3011, 3020, 3040, 3041.) Even if father’s contentions are correct that other intentionally stalled the proceedings in order to prejudice his rights, custody decisions are not made to punish a parent’s past conduct. (LaMusga, supra, 32 Cal.4th at p. 1094.)
Although Dr. Brodie stated his opinion that a change of custody was warranted, the trial court was not obligated to simply “rubber stamp” her findings. (See In re Marriage of DeRoque (1999) 74 Cal.App.4th 1090, 1096 [refusal to adopt evaluator’s time share recommendation not an abuse of discretion]; Osgood v. Landon (2005) 127 Cal.App.4th 425, 436 [not error to award custody to relocating mother even though evaluator recommended custody go to nonmoving father].) Contrary to father’s assertions, Dr. Brodie’s report did not provide uncontroverted evidence that a change in custody was in the best interests of the child. Mother’s expert, Dr. Kania, criticized the manner in which Dr. Brodie performed her evaluation. The trial court’s decision implicitly agreed with Dr. Kania that Dr. Brodie’s evaluation was flawed. The trial court specifically stated its concern that Dr. Brodie failed to look into what impact her recommendation to change custody would have on the child. It is apparent the trial court agreed with Dr. Kania’s assessment that he “could find no reasoning behind [Dr. Brodie’s conclusions], no rationale to suggest a significant change in custody and visitation.”
Father points to mother’s repeated allegations of sexual abuse as warranting a change in custody. However, most of the reports came from mother’s mother and from Head, not from mother herself. Moreover, there is no indication from the record that the trial court believed these allegations were made in bad faith. A trial court may not remove custody from a parent who makes legitimate reports of suspected child abuse. (§ 3027.5, subd. (a).) Thus, it would have been an abuse of discretion for the trial court to remove the child to father’s care on the grounds of mother’s abuse allegations.
Father next looks to mother’s prior interferences with his visitation time as a ground for changing custody. The willingness of a parent to facilitate a good relationship with the other parent is an important consideration when determining which parent is the best choice as primary caretaker. (In re Marriage of Steiner & Hosseini (2004) 117 Cal.App.4th 519, 529.) The public policy of this state is to assure that children have frequent and continuing contact with both parents. (§ 3020, subd. (b).)
It is well established that “the quickest way for a parent to lose primary physical custody is for that parent to obstruct the visitation rights of the other parent.” (In re Marriage of Moschetta (1994) 25 Cal.App.4th 1218, 1234.) When the actions of one parent are designed to frustrate the visitation rights of the other, the court has the power to change custody, even where there is no finding of the custodial parent’s unfitness. (In re Marriage of Ciganovich (1976) 61 Cal.App.3d 289, 294, superseded by statute on other grounds as stated in In re Marriage of Carlson (1991) 229 Cal.ApP.3d 1330, 1335.) It is important to note that “a custodial parent’s attempt to frustrate the court’s order [for visitation] has a bearing upon the fitness of that parent.” (In re Marriage of Ciganovich, supra, at p. 294.)
Although the record shows existence of a history of frustration of visitation on the part of mother, the trial court stated its belief that she would not do so in the future. We presume the trial court based its belief on mother’s apparent cooperation since Dr. Brodie’s report was released. However, if mother were to resume behaviors designed to frustrate visitation between father and the child, a change in custody might indeed be warranted.
Father further claims the trial court improperly applied In re Marriage of Williams (2001) 88 Cal.App.4th 808 (Williams) to this case. Under Williams, the court stated that siblings should be separated only upon a showing of “extraordinary emotional, medical or educational need, or some other compelling circumstance....” (Id. at p. 814.) The trial court expressly stated in its statement of decision that it did not wish to separate the child from her half sister and stepsiblings. The trial court expressed its concern that Dr. Brodie failed to consider the impact on the child of separation from her half sister and stepsiblings, an omission the trial court found to be “a rather substantial issue.”
In Williams, the court reversed a trial court’s order resolving a custody issue between two equally competent and loving parents by splitting the siblings between the two parents. (Williams, supra, 88 Cal.App.4th at p. 814.) The court noted: “Children are not community property to be divided equally for the benefit of their parents. The parents of these children have chosen to divorce each other. The children have not chosen to divorce each other. At a minimum, the children have a right to the society and companionship of their siblings. [Citation.]” (Ibid.)
In other contexts, the California Legislature has expressly recognized the importance of relationships with half siblings (§ 8714.5, subd. (a)(2)), and has recognized that in dependency proceedings half siblings should be placed together whenever practical and appropriate. (Welf. & Inst. Code, § 306.5.) Moreover, there is a bond that may form between stepsiblings that should not be ignored when a court makes custody decisions. (See, e.g., Cal. Rules of Court, rules 5.410, 5.502(30).) Thus, the trial court did not err in taking the relationship the child may have with her half sister and stepsiblings into consideration.
Although father contends the trial court considered only the separation of siblings in coming to its conclusion, we disagree. The trial court expressly stated it was concerned with the lack of information relating to the impact of separating the child from her half sister and stepsiblings would have on the child. This is not a statement that the trial court would not separate siblings, but rather a statement that the trial court was concerned about the impact a disruption of these emotional bonds would have on the child.
We find that the trial court’s decision in this case was warranted, based on the importance of protecting the stability of the custody arrangement. We additionally find no error in the trial court’s decision not to separate the child from her half sister and stepsiblings without some showing of the impact that it would have on the child. Thus, we affirm the trial court’s decision.
V. SANCTIONS AND ATTORNEY FEES
On the last day of trial, father filed a motion for sanctions pursuant to section 3027.1 (a penalty for knowingly making false accusations of child abuse or neglect during child custody proceedings). Mother claims that father failed to provide the required 15 days’ notice and thus the motion was defective. But mother’s attorney agreed, on the record, that she had been properly noticed and that this issue “will be another issue for the court to determine,” effectively waiving the argument of untimeliness.
The trial court was required to issue an order to show cause why the requested sanctions should not be imposed. (§ 3027.1, subd. (b).) There was no hearing held on this issue and the court made no express findings as to the nature of the false abuse reports before making its ruling. However, in denying father sanctions, the trial court made an implicit finding that mother’s child abuse reports were made in good faith. (See, e.g., In re Marriage of Nichols (1994) 27 Cal.App.4th 661, 671.) Thus, we will not remand this issue to the trial court.
Father additionally moved for attorney fees pursuant to section 7605, providing attorney fees considering the respective incomes, need, and ability of the parties to pay for legal services. “The basis for awarding attorney’s fees is that each party must have access to legal representation in order to preserve all of his or her rights.” (In re Marriage of Barnet (1978) 85 Cal.App.3d 413, 428.) The record contains no indication that either father or mother was more able to pay for legal services than the other. Moreover, the trial court requested that a “declaration and billing sheets” be provided before a request for attorney’s fees would be considered. The record does not show that father followed through with this requirement. Thus, we conclude the court did not err in denying attorney fees under section 7605.
IV. DISPOSITION
The judgment is affirmed. Each party shall bear his or her own costs.
We concur: RAMIREZ P.J., MCKINSTER J.