Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of San Diego County No. DN135316 Joseph P. Brannigan, Judge.
McDONALD, J.
Jacqueline Stellmacher (Mother) appeals a postjudgment order awarding Darrell J. Dillon (Father) primary physical custody of their minor son Demetrius. On appeal, Mother contends the trial court erred by: (1) applying an incorrect standard in awarding Father primary physical custody and denying her request to move away; (2) denying her motion for reconsideration; (3) not transferring sua sponte the case to Santa Clara County; and (4) denying her request for an order prohibiting Father from recording his telephone calls with her.
Although Mother also contends the trial court cannot transfer the case to Texas (see, e.g., Grahm v. Superior Court (2005) 132 Cal.App.4th 1193; Fam. Code, § 3422), the court has not done so and therefore her challenge to any future transfer order is premature.
FACTUAL AND PROCEDURAL BACKGROUND
In deciding this appeal, we have not considered any factual assertions not supported by citations to the record on appeal contained in Father's respondent's brief, filed in propria persona. (Cal. Rules of Court, rule 8.204(a)(1)(C).)
In 2003 Mother and Father were living in North Carolina and married there. In February 2004, their son Demetrius was born. Later in 2004, Father began a business in Texas and commuted between North Carolina and Texas. In November, Father filed a petition in Texas for dissolution of their marriage. In December, Mother moved with Demetrius to San Marcos, California.
On December 17, Mother filed a petition for legal separation in the San Diego County Superior Court. Mother later filed an order to show cause (OSC) to determine custody and visitation issues regarding Demetrius. In January 2005, she filed an OSC to determine the jurisdiction of the trial court pursuant to the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA). In February, the trial court found California (and not Texas) had jurisdiction under the UCCJEA to make an initial custody determination.
On March 23, the trial court held a hearing regarding child custody and visitation. The court adopted, with certain modifications, the recommendations of the Family Court Services (FCS) report dated March 1 regarding temporary child custody and visitation with Demetrius. That FCS report reflected the agreement of Mother and Father (after FCS mediation) regarding a short-term sharing plan for custody of Demetrius. The parents agreed to joint legal custody of Demetrius with his primary residence to be with Mother in San Diego County. Father was to travel at least monthly from Texas to San Diego County to visit Demetrius for about six hours per day over a four-day period. Neither parent was to move Demetrius out of San Diego County without the other parent's written permission or a court order.
On September 30, a trial was held to determine permanent child custody and visitation issues. The court found that Mother and Father had been divorced in Texas. The court issued an order giving Mother and Father joint legal custody of Demetrius with Mother to have primary physical custody. Father was to have increasing visitation with Demetrius through July 2006, at which time he would begin having Demetrius (apparently during the second weekend of each month) from Thursday after day care until Monday evening in either San Diego or Texas (in Father's discretion).
The record is unclear whether Father's weekend visitation was to be once a month or every weekend. The written order states: "THE COURT ORDERS visitation between [Father] and the minor child as follows: [¶] . . . [¶] July 2006 and thereafter [¶] [Father] to pick up child from [day care] on Thursday and return child to [Mother] on Monday at 7:00 p.m. These visits may take place in San Diego or Texas at [Father's] discretion." Although that express language does not limit Father's visitation to one weekend per month, the order, when read as a whole, shows that Father's visitation until July 2006 was expressly limited to the second weekend of each month. Accordingly, for purposes of this appeal, we assume arguendo the trial court intended that Father's visitation beginning in July 2006 was likewise to be limited to the second weekend of each month.
In June 2006, Father filed an OSC to modify the child custody and visitation order to give him additional time with Demetrius. On July 19, the trial court considered the FCS report, which stated that: "It is the impression of the undersigned that the [M]other is less than cooperative with the [F]ather and helping to facilitate his parenting time. . . . The undersigned gets the distinct impression that the [M]other does not . . . want to encourage and help facilitate the [F]ather's relationship with the child. She is very rigid and inflexible in adjusting her schedule so that the [F]ather may have the child for a period of time when he travels to San Diego." The FCS report stated:
"The undersigned reminds the [M]other that she carries a responsibility to assist in the facilitation of the child's relationship with the [F]ather. If the [M]other does not do so and continues to fight the [F]ather on every little aspect, then the court may at some point in time change custody. Custody is typically provided to the parent most willing to encourage the relationship with the other parent."
The court issued an order adopting the FCS report's recommendation that Mother and Father share joint physical custody of Demetrius, initially with Mother having him 64 percent and Father 35 percent of the time and, after Demetrius turns three years old, with Mother and Father each having him 50 percent of the time (i.e., alternating weeks). The court advised Mother that she "needs to be flexible in sharing of child or Court may consider a 'change of custody orders.' " The court also ordered: "Neither parent shall move the residence of the child out of San Diego County without giving the other parent a 45-day advance written notice and obtaining the other parent's written permission prior to the move or an order of the Court granting the move."
On November 6, Father filed an OSC for modification of the prior child custody and visitation order, alleging Mother had not complied with the prior order and had moved away from San Diego, and that he did not know where Demetrius was living.
On November 28, Mother filed an OSC for modification of the prior child custody and visitation order, requesting that the court allow her to move with Demetrius from San Diego County to Northern California (i.e., the Bay area) and that it stay the order for the impending (i.e., February 2007) change to equal joint physical custody.
On February 2, 2007, the FCS issued a report following mediation between the parents. The report stated: "[F]ather claimed [Mother] moved with the child out of San Diego County without permission from him or the court . . . . He said the police never found [Mother] at the address he had been given and had to involve the local Child Abduction Unit[, which] found out she had moved out of San Diego County." The report further stated: "[M]other admits she moved to Sunnyvale without permission in October 2006, but said it was not her intent to do so." She stated her mother became ill, causing her to go to Connecticut for three weeks, during which time she received a job offer in the Bay area. Accordingly, she returned to San Diego and then moved to Sunnyvale the next day. She claimed she informed Father that she was "in the Bay area." Father also expressed concern about Mother's interference with his attempts to obtain medical treatment for Demetrius's hemangioma. The report concluded Mother did not inform Father of her move and "[t]here appears to be a history of difficulty regarding [Mother] facilitating the child's relationship with [Father]." It further concluded: "[F]ather is more focused on the child's needs than his own while [Mother] appears to be more concerned about [Father's] history of child support payment than in getting the child prompt medical care. The undersigned therefore recommends a change of custody to [Father's] care. The undersigned recommends the child share ten days per month with [Mother] . . . ." Accordingly, the report recommended: "4. The child's primary residence shall be with [Father]. [¶] 5. The child shall share time with [Mother] as follows: [¶] a. For ten days per month . . . ."
On March 2, the trial court conducted an evidentiary hearing on the OSC's filed by Father and Mother. The court received in evidence the FCS report and other documents and heard the testimonies of Father, Mother, and Steve Thorne (the FCS counselor who prepared the February 2 report). Father testified that he could not find Demetrius on October 18, 2006 (apparently at the San Diego address Mother had given him), and did not know Mother had moved with Demetrius to Northern California. Father testified Mother did not call him after the move to inform him she had moved. Rather, Father did not learn of Mother's move until November 28 when the district attorney's office found her.
On April 26, 2007, the trial court issued its written order, finding:
"1. [¶] The court's exercise of jurisdiction over child custody and visitation is based upon the fact that California is the home state of the parties' minor child. [¶] . . . [¶]
"2. Mother was advised in March 2005 that she did need to come to court to obtain permission to move out of San Diego County.
"3. Mother moved to Santa Clara County in October 2006 without asking for permission from the Court. After she moved, she filed paperwork asking permission to take Demetrius out of San Diego County. The Court is concerned that Mother moved to Santa Clara County without permission of the Court.
"4. In July 2006, [the trial court] admonished Mother that she needed to be flexible in the sharing of Demetrius or there may be a change of custody. The Court was quite surprised that Mother moved to Santa Clara County without informing the Court or Father.
"5. The Court noticed that Mother has been somewhat obstreperous in her dealings with Father. Demetrius needs both parents. However, the Court is not concerned about Mother's inflexibility or even about her moving without telling the Court in deciding the visitation plan.
"6. In deciding the well-being of the child, it is important that the child have contact with both parents. In a prior [FCS] report dated July 2006, [the FCS counselor] reminded Mother that she carries a responsibility to assist in facilitating the child's relationship with Father. Mother was told that if she does not facilitate the relationship and continues to fight the Father on every little issue, then the Court may change custody. Mother was told that custody is typically given to the parent more willing to encourage the relationship with the other parent.
"7. The Court is viewing Mother's move to Santa Clara County within the context of her willingness to encourage the child's relationship with Father.
"8. The [FCS] recommendation was based on two factors: Mother['s] move without permission to Santa Clara County and Father's steps to find her; and whether Mother seemed as interested in taking care of a possible medical condition as Father was.
"9. The Court finds, based on the evidence heard at trial and its review of the file, that Mother has battered Father's attempts to have a relationship with their son. The Court believes that Mother has not been flexible, as she was cautioned to be at the July 19 hearing when she was told that a possible change of custody might occur.
"10. The Court believes that it is important for the child to have contact with both parents. The Court believes, based on everything it has heard and read, that the way to do this is to follow the recommendations of the [FCS] report."
The court ordered that "[e]ffectively immediately, Demetrius's primary residence shall be with Father. The Court adopts as its order the [FCS] report dated February 2, 2007 . . . . The parents shall share joint legal custody. Mother's visitation will be as stated in [the FCS report]." The court further ordered: "The case is transferred to Santa Clara County, California. Mother shall pay any costs associated with this transfer." On April 27, Mother sought and obtained a court order staying the April 26 order for one month.
On May 6, Mother filed a motion for reconsideration of the trial court's April 26 order. On May 25, the court heard arguments on Mother's motion and then denied it. In so ruling, the court found that:
"I believe that [Mother] had a bad faith motive when she moved to the Bay area. I believe that her intent . . . was to thwart interaction with [Father] and his son, Demetrius. I think there is a history on [Mother's] part of trying to do that.
"[Mother] left North Carolina and came here. [Father] wasn't aware of where she was. And when she moved up to the Bay area, she did it without advising him. I think at one point he was in San Diego looking for her, trying to find out where she was, and she had gone up to the Bay area.
"I believe there was a change in circumstance. I think the change in circumstance was the move to the Bay area itself, because I believe it was intended to keep Demetrius from his dad. And I made the decision that it was essential that for [the] stability of Demetrius that custody be changed. I believed it was in his best interest[s]. So finding that that move, an unannounced secretive move, by [Mother] was done for the wrong reasons. It was done to keep Father and son from seeing each other, I believe. That was to the detriment of Demetrius because it is important that a child have contact with both parents. So I find the move was detrimental to Demetrius and was a change of circumstance that allowed [Father] to come back to court to ask for change of custody."
The court concluded:
"So for all of the reasons that I elaborated on at the original hearing, as well as some additional ones that I just mentioned, I do believe that since the move by [Mother] was intended to frustrate the other parent's contact, that being [Father], that my original decision was correct."
The court also denied Mother's request for a further stay of its April 26 order, thereby allowing its order granting Father primary physical custody to take effect immediately. The court rescinded its prior order transferring sua sponte the case to Santa Clara County. It allowed the parties to submit briefs on the issue of whether the court had jurisdiction and whether the case should be transferred to Texas. Finally, the court denied Mother's request for an order prohibiting Father from recording future telephone calls between them. On August 14, the court issued its written order denying the motion for reconsideration, substantially restating its findings and rulings quoted above.
On June 19, the trial court heard arguments on whether it had jurisdiction over the case. The court concluded it had jurisdiction and would retain the case for now, subject to its consideration of any future motion for change of venue because of inconvenient forum. On October 18, the court issued its written order retaining jurisdiction of the case until further order.
Mother timely filed a notice of appeal.
DISCUSSION
I
Standard of Review
In general, "[t]he standard of appellate review of custody and visitation orders is the deferential abuse of discretion test." (In re Marriage of Burgess (1996) 13 Cal.4th 25, 32 (Burgess).) 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. (Id. at pp. 31-32; Fam. Code, § 3040, subd. (b).) In contrast, "[o]rdinarily, after a judicial custody determination, the noncustodial parent seeking to alter the order for legal and physical custody can do so only on a showing that there has been a substantial change of circumstances so affecting the minor child that modification is essential to the child's welfare." (Burgess, at p. 37, citing Burchard v. Garay (1986) 42 Cal.3d 531, 534 (Burchard).)
However, Burgess noted: "A different analysis may be required when parents share joint physical custody of the minor children under an existing order and in fact, and one parent seeks to relocate with the minor children. In such cases, the custody order '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[s] of the child requires modification or termination of the order.' (Fam. Code, § 3087.) The trial court must determine de novo what arrangement for primary custody is in the best interest[s] of the minor children." (Burgess, supra, 13 Cal.4th at p. 40, fn. 12.) "The changed-circumstance rule is not a different test, devised to supplant the statutory test, but an adjunct to the best-interest[s] 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[s]. The rule thus fosters the dual goals of judicial economy and protecting stable custody arrangements. [Citations.]" (Burchard, supra, 42 Cal.3d at p. 535.)
Generally, a trial court abuses its discretion if there is no reasonable basis on which the court could conclude its decision advanced the best interests of the child. (In re Marriage of Melville (2004) 122 Cal.App.4th 601, 610; Burgess, supra, 13 Cal.4th at p. 32.) However, "all exercises of legal discretion must be grounded in reasoned judgment and guided by legal principles and policies appropriate to the particular matter at issue." (People v. Russel (1968) 69 Cal.2d 187, 195, superseded by statute on another ground as noted in People v. Anderson (2001) 25 Cal.4th 543, 575; People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 977.) Therefore, a discretionary decision may be reversed if improper criteria were applied or incorrect legal assumptions were made. (Linder v. Thrifty Oil Co. (2000) 23 Cal.4th 429, 435-436.)
Alternatively stated, if a trial court's decision is influenced by an erroneous understanding of applicable law or reflects an unawareness of the full scope of its discretion, it cannot be said the court has properly exercised its discretion under the law. (People v. Belmontes (1983) 34 Cal.3d 335, 348, fn. 8; In re Carmaleta B. (1978) 21 Cal.3d 482, 496 ["[D]iscretion can only be truly exercised if there is no misconception by the trial court as to the legal basis for its action."]; People v. Aubrey (1998) 65 Cal.App.4th 279, 282; People v. Marquez (1983) 143 Cal.App.3d 797, 803 ["[A]n erroneous understanding by the trial court of its discretionary power is not a true exercise of discretion."].) Therefore, a discretionary order based on the application of improper criteria or incorrect legal assumptions is not an exercise of informed discretion and is subject to reversal even though there may be substantial evidence to support that order. (Linder v. Thrifty Oil Co., supra, 23 Cal.4th at p. 436; Caro v. Procter & Gamble Co. (1993) 18 Cal.App.4th 644, 655.) If the record affirmatively shows the trial court misunderstood the proper scope of its discretion, remand to the trial court is required to permit that court to exercise informed discretion with awareness of the full scope of its discretion and applicable law. (People v. Rodriguez (1998) 17 Cal.4th 253, 257 (Rodriguez), superseded by statute on another ground as noted in People v. Luna (2003) 113 Cal.App.4th 395, 397; People v. Fuhrman (1997) 16 Cal.4th 930, 944.)
In In re Marriage of LaMusga (2004) 32 Cal.4th 1072 (LaMusga), the court addressed the standard that applies when a parent files a motion to modify a prior custody order because of a custodial parent's planned (or actual) move with the child. In LaMusga, the trial court "ordered that primary physical custody of two minor children would be transferred from their mother to their father if their mother moved to Ohio." (Id. at p. 1078.) LaMusga concluded:
"[J]ust as a custodial parent does not have to establish that a planned move is 'necessary,' neither does the noncustodial parent have to establish that a change of custody is 'essential' to prevent detriment to the children from the planned move. Rather, the noncustodial parent bears the initial burden of showing that the proposed relocation of the children's residence 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, at p. 1078, italics added.)
LaMusga stated the father "satisfied his initial burden of showing that the mother's planned move would cause detriment to the children, requiring a reevaluation of the children's custody." (Id. at p. 1079.) In the circumstances of that case, it concluded the trial court "properly considered the relevant factors and did not abuse its discretion in deciding that a change in primary custody from the mother to the father would be in the best interests of the children if the mother moves to Ohio." (LaMusga, supra, 32 Cal.4th at p. 1079.) LaMusga stated:
LaMusga noted that although the trial court had previously awarded the mother "primary physical custody" of the children, the Family Code does not use that term, but instead "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)." (LaMusga, supra, 32 Cal.4th at pp. 1080-1081, fn., 1.)
"We do not suggest that a showing that a proposed move will cause detriment to the relationship between the children and the noncustodial parent mandates a change in custody. But 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." (LaMusga, at p. 1095.)
Regarding the initial showing of detriment, the court stated:
"The mere fact that the custodial parent proposes to change the residence of the child does not automatically constitute 'changed circumstances' that require a reevaluation of an existing custody order. A proposed change in the residence of a child can run the gamut from a move across the street to a relocation to another continent. As we have noted, the noncustodial parent has the burden of showing that the planned move will cause detriment to the child in order for the court to reevaluate an existing custody order." (LaMusga, at p. 1096.)
LaMusga then observed:
"The likely consequences of a proposed change in the residence of a child, when considered in the light of all the relevant factors, may constitute a change of circumstances that warrants a change in custody, and the detriment to the child's relationship with the noncustodial parent that will be caused by the proposed move, when considered in light of all the relevant factors, may warrant denying a request to change the child's residence or changing custody. The extent to which a proposed move will detrimentally impact a child varies greatly depending upon the circumstances. We will generally leave it to the superior court to assess that impact in light of the other relevant factors in determining what is in the best interests of the child." (LaMusga, at p. 1097, italics added.)
Regarding the custodial parent's reasons for a proposed move, LaMusga noted:
"Even 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." (LaMusga, supra, 32 Cal.4th at p. 1100, fn. omitted and italics added.)
As another court subsequently stated: "When parents share joint custody[,] the trial court need not question the wisdom of a parent's move or examine the reasons for the proposed move, but should certainly consider evidence of bad faith by the moving party if such exists. [Citations.]" (Niko v. Foreman (2006) 144 Cal.App.4th 344, 364.)
LaMusga then set forth the factors that a trial court generally should consider in exercising its discretion whether to grant or deny a custodial parent's request to relocate with a minor child:
"Among 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[s] in the 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, at p. 1101, italics added.)
Based on the record in LaMusga, the California Supreme Court concluded the trial court properly considered those factors and therefore did not abuse its discretion by transferring custody of the children to the father if the mother moved to Ohio. (LaMusga, at p. 1101.)
II
Modification Order Awarding Father Primary Physical Custody
Mother contends the trial court erred in modifying its prior order by awarding Father primary physical custody of Demetrius. She argues the court applied the wrong (if any) legal standard in modifying its prior order or, at least, misapplied the proper "change-of-circumstance" standard.
A
As described above, the "change-of-circumstance" test generally applies when a parent seeks modification of a prior order regarding child custody and visitation. (Burchard, supra, 42 Cal.3d at p. 534.) For purposes of this appeal, we will assume arguendo that is the standard the trial court was required to apply in deciding the OSC's filed by Father and Mother.
Although the trial court did not, either at the March 2, 2007, evidentiary hearing or in its April 26 written order, expressly use the phrase "change of circumstance," there is nothing in the record that affirmatively shows the trial court misunderstood that proper legal standard applied in this case. Accordingly, we presume the court was aware of, and in fact applied, that change-of-circumstance test in deciding the OSC's, both of which requested changes to the court's original custody order. (Wilson v. Sunshine Meat & Liquor Co. (1983) 34 Cal.3d 554, 563 ["[I]t is presumed that the court followed the law."] (Wilson); cf. People v. Rodriguez, supra, 17 Cal.4th at p. 257.) That presumption is supported by the trial court's subsequent express reference to, and discussion of, the change-of-circumstance test at the May 25 hearing on Mother's motion for reconsideration. The court stated at that hearing: "I believe there was a change in circumstance. I think the change in circumstance was the move to the Bay area itself, because I believe it was intended to keep Demetrius from his dad." There is nothing in the reporter's transcript for the May 25 reconsideration hearing that shows the trial court did not apply the change-of-circumstance test in deciding the OSC's. Therefore, Mother has not carried her burden on appeal to show the trial court applied the wrong legal standard (or none at all) in deciding the OSC's.
B
We further conclude Mother does not show the trial court misapplied the change-of-circumstance test in deciding the OSC's. Because there is no information in the record to the contrary, we assume the trial court, in applying that test, first determined whether the purported change of circumstance (i.e., Mother's move to the Bay area) was detrimental to Demetrius and, if so, whether, after weighing all relevant factors, a change in custody was in his best interests. (LaMusga, supra, 32 Cal.4th at pp. 1078, 1096-1097; Wilson, supra, 34 Cal.3d at p. 563; Rodriguez, supra, 17 Cal.4th at p. 257.)
Father presented substantial evidence, and the trial court found, that Mother's move with Demetrius to the Bay area was detrimental to Demetrius. Father testified at the March 2, 2007, evidentiary hearing that Mother moved to the Bay area without first obtaining permission to do so from either the court or him. Furthermore, Mother moved from San Diego County to the Bay area without informing Father, who had to seek assistance from child abduction authorities to locate Mother and Demetrius. The end result was that for more than one month Father did not know where Demetrius was living and did not learn of his address until authorities finally located Mother and Demetrius. The record also shows Mother had been repeatedly advised and ordered that she could not move Demetrius out of San Diego County without first obtaining permission from the court or Father. Mother had also been warned to be flexible in sharing Demetrius or a change of custody could be ordered. The evidence also showed that Mother previously had moved away with Demetrius without informing Father when she moved with Demetrius from North Carolina to San Diego County in late 2004. Based on that evidence, the trial court reasonably inferred that Mother's move to the Bay area was essentially in bad faith because it showed her unwillingness to encourage the child's relationship with Father.
As quoted above, the court's April 26 order stated: "The Court is viewing Mother's move to Santa Clara County within the context of her willingness to encourage the child's relationship with Father." Furthermore, the court found: "Mother has battered Father's attempts to have a relationship with their son. The Court believes that Mother has not been flexible [in sharing Demetrius with Father]." Therefore, in determining whether Father showed Mother's move to the Bay area was detrimental to Demetrius, the court clearly focused on Mother's actions in attempting to interfere with Demetrius's relationship with Father. The trial court's consideration of Mother's move was not restricted to only the change in travel time and expense for Father's visitation of Demetrius.
We conclude the court implicitly found at the March 2 hearing and in its April 26 order that Mother's action in moving to the Bay area without informing Father or obtaining permission of the court or Father was an attempt to interfere with Demetrius's relationship with Father, which was detrimental to Demetrius and a significant change of circumstance, requiring it to weigh all relevant factors in determining whether a change of custody was in Demetrius's best interests. The trial court's implicit finding after the OSC evidentiary hearing was confirmed and made express at the hearing on Mother's motion for reconsideration at which the court stated:
"I believe that [Mother] had a bad faith motive when she moved to the Bay area. I believe that her intent . . . was to thwart interaction with [Father] and his son, Demetrius. I think there is a history on [Mother's] part of trying to do that.
"[Mother] left North Carolina and came here. [Father] wasn't aware of where she was. And when she moved up to the Bay area, she did it without advising him. I think at one point he was in San Diego looking for her, trying to find out where she was, and she had gone up to the Bay area.
"I believe there was a change in circumstance. I think the change in circumstance was the move to the Bay area itself, because I believe it was intended to keep Demetrius from his dad. And I made the decision that it was essential that for [the] stability of Demetrius that custody be changed. I believed it was in his best interest[s]. So finding that that move, an unannounced secretive move, by [Mother] was done for the wrong reasons. It was done to keep Father and son from seeing each other, I believe. That was to the detriment of Demetrius because it is important that a child have contact with both parents. So I find the move was detrimental to Demetrius and was a change of circumstance that allowed [Father] to come back to court to ask for change of custody."
Furthermore, we conclude that, after finding there had been a significant change in circumstances, the trial court then properly weighed all relevant factors, including Mother's intent in moving to the Bay area, in determining that a change of custody was in Demetrius's best interests. (LaMusga, supra, 32 Cal.4th at pp. 1078, 1096-1097, 1101; Wilson, supra, 34 Cal.3d at p. 563.) As quoted above, LaMusga stated:
"Among 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[s] in the 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, at p. 1101, italics added.)
We presume the trial court considered all of the above factors and other relevant factors in determining that a change of custody was in Demetrius's best interests. (Wilson, supra, 34 Cal.3d at p. 563.) The record does not affirmatively show, or support a reasonable inference, that the court ignored Demetrius's interest in the stability and continuity of his current custodial arrangement. Rather, the record supports the reasonable inference that the court considered that factor, along with all other relevant factors, in concluding that a change of custody would be in Demetrius's best interests. The court expressed concern that, absent a change of custody, Mother would continue to attempt to interfere with Demetrius's relationship with Father. Therefore, Father, as the parent most likely to encourage a relationship with the other parent, should have primary physical custody of Demetrius. As LaMusga stated:
"The extent to which a proposed move will detrimentally impact a child varies greatly depending upon the circumstances. We will generally leave it to the superior court to assess that impact in light of the other relevant factors in determining what is in the best interests of the child." (LaMusga, at p. 1097, italics added.)
Because there is substantial evidence to support the trial court's findings, we conclude the court did not abuse its broad discretion in weighing the relevant factors regarding Demetrius's best interests and ordering the change of his custody. (LaMusga, at p. 1101.)
Finally, we cannot conclude the trial court abused its discretion by ordering that Father have primary physical custody, rather than ordering a less drastic measure (e.g., ordering Mother to obtain counseling to help her support Demetrius's relationship with Father). It was the trial court's function to weigh all the relevant factors regarding Demetrius's best interests and, absent an abuse of discretion, we do not second-guess the court's determination regarding the appropriate means to further Demetrius's best interests. In the circumstances of this case, we cannot conclude the court abused its discretion by determining the change of custody was in Demetrius's best interests.
Also, Mother does not show that she, rather than Father, is the parent most likely to support Demetrius's relationship with the other parent.
We further conclude the trial court did not abuse its discretion by implicitly denying Mother's OSC motion for permission to move with Demetrius to the Bay area, which denial presumably was based on the same reasons on which the court relied in granting Father's OSC motion for a change of custody.
III
Order Denying Motion for Reconsideration
Mother contends the trial court erred by denying her motion for reconsideration of its order changing Demetrius's primary physical custody to Father. She essentially restates her arguments in part II, ante. She argues there is insufficient evidence to support the trial court's finding that her intent in moving to the Bay area was to thwart Demetrius's interaction with Father. She also argues the trial court focused solely on her purported bad faith move to the Bay area and failed to consider all of the other relevant factors regarding Demetrius's best interests.
As we concluded in part II, ante, there is substantial evidence to support the trial court's finding that Mother intended to thwart, or interfere with, Demetrius's relationship with Father when she moved with Demetrius to the Bay area. We need not restate our reasoning here. In any event, the trial court was not required to accept, as Mother argues, that her move to the Bay area was solely for the legitimate reason that she needed to earn more money that her job in the Bay area would provide.
Likewise, as we concluded in part II, ante, the trial court properly considered all relevant factors, and not only Mother's intent in moving to the Bay area, in determining whether a change of custody was in Demetrius's best interests. Again, we need not restate our reasoning here. Accordingly, we conclude the trial court did not abuse its discretion by denying Mother's motion for reconsideration.
IV
Transfer of Case to Santa Clara County
Mother contends the trial court erred by not transferring sua sponte the case to Santa Clara County.
As noted above, the trial court's April 26, 2007, order stated: "The case is transferred to Santa Clara County, California. Mother shall pay any costs associated with this transfer." The court made that transfer order sua sponte, without any motion by either party for a change of venue. However, the April 26 order, along with its transfer of venue to Santa Clara County, was stayed on April 27 for one month per Mother's request. At the May 25 hearing, the court rescinded its order transferring venue of the case to Santa Clara County, pending its further consideration of jurisdictional issues. On June 19, the court concluded it had jurisdiction and would retain the case for now, subject to its consideration of any future motion for change of venue for inconvenient forum (e.g., per Code Civ. Proc., § 397.5 or Fam. Code, § 3427). On October 18, the court issued its written order retaining jurisdiction of the case until further order. In so doing, the court decided in effect that it would not order, sua sponte, transfer of venue of the case to Santa Clara County.
Mother summarily argues that the trial court abused its discretion by rescinding its April 26 order sua sponte transferring venue of the case to Santa Clara County. She argues that because none of the interested parties (i.e., Mother, Father, or Demetrius) continued to reside in San Diego County, the court should have transferred the case to Santa Clara County as the more convenient venue. However, Mother does not persuade us that the court abused its discretion by not transferring the case, on its own motion, to Santa Clara County. Although the trial court presumably recognized San Diego County is no longer the most convenient forum for the parties, it did not abuse its discretion by postponing any decision to transfer of the case until it receives a motion by a party to transfer venue of the case.
Similarly, as we noted above, although Mother argues the trial court cannot transfer the case to Texas (see, e.g., Grahm v. Superior Court, supra, 132 Cal.App.4th 1193; Fam. Code, § 3422), the court did not transfer the case to Texas and therefore her challenge to any future transfer order is premature. In any event, we conclude the court did not err by not stating on the record that the case could not be transferred to Texas.
V
Father's Recording of Calls
Mother contends the trial court erred by denying her request for an order prohibiting Father from recording telephone calls between them.
Although the record showed Father admitted recording telephone calls to Mother in the past, the trial court at the May 25 hearing denied her request that the court order him to cease taping or recording of calls. Instead, the court at that hearing advised Father: "[Y]ou ought to be careful if you are taping any phone conversations. I don't know why you would be doing that, sir. I don't think that is necessary."
Although Mother argues that we must review the trial court's decision de novo, she cites no authority to support that standard of review on appeal. To the contrary, we conclude the only logical standard is to review the decision for an abuse of discretion. In the circumstances of this case, we cannot conclude the court abused its discretion by not ordering Father to refrain from taping or recording telephone calls in the future, especially in the absence of any compelling evidence showing he intended to, or would, continue that conduct in the future.
DISPOSITION
The order is affirmed.
WE CONCUR: HUFFMAN, Acting P. J., McINTYRE, J.