Opinion
NOT TO BE PUBLISHED
Original proceedings; appeal from an order of the Superior Court of Orange County No. 98P000302, Salvador Sarmiento, Judge.
Langston Williams, Gerold G. Williams and Joanne Langston for Defendant and Appellant.
Merritt McKeon for Plaintiff and Respondent.
OPINION
ARONSON, J.
By way of a both an appeal and a petition for an extraordinary writ, Michael Todd Starr challenges a postjudgment order granting Nicole Seidleman joint physical custody of the couple’s daughter Natalie (now age 11). Mother had filed her motion seeking increased physical custody after father restricted her contact with Natalie. Father contends the trial court erroneously transmuted the couple’s stipulation to share joint physical custody — in the form of alternating weeks — for the summer of 2007 into a permanent arrangement. The trial court, however, could reasonably conclude significant changes since the court’s initial custody determination in 1999 warranted coequal time for each parent, including: (1) mother, impregnated by father at age 15 or 16, was no longer a minor herself but rather, now in her mid-20’s, had proved herself capable of caring for Natalie; (2) Natalie wanted to spend more time with mother; (3) more time with mother served Natalie’s best interests as she entered her adolescent years; (4) mother relocated closer to Natalie’s school and to father, making custody handoffs more convenient and avoiding the issue of a potential school change for Natalie; and (5) father’s scrapes with the law in 2005 and 2006, including narcotics possession offenses and convictions for possessing a stolen vehicle and for child endangerment based on guns and drugs in his home, undercut his claim to primary physical custody.
Father assumes the couple’s summer 2007 stipulation formed the sole basis for the trial court’s joint physical custody determination, but father failed to request a statement of decision to isolate such a finding for review, and we therefore look to the whole record for evidence demonstrating the trial court acted within its discretion. (In re Marriage of Arceneaux (1990) 51 Cal.3d 1130, 1134-1135.) In addition to the evidence recited above supporting joint physical custody, the trial court could consider father and mother’s actual parenting arrangement. The trial court could reasonably conclude the couple’s practice of sharing custody demonstrated a joint physical custody order was appropriate.
The original custody order, entered in 1999 following mother’s paternity action against father, included the trial court’s observation that, based on their behavior, “[b]oth of these parties are still children.” The description was especially apt for mother, given that she was still a minor. In any event, the trial court ordered joint legal custody for both parents, primary physical custody to father, with visitation for mother every Wednesday and on alternating weekends. Within a year, on their own accord, father and mother adopted a schedule in which Natalie actually resided with mother four or five days every other week. Father and mother continued this arrangement for the next six years, until mother reported her concerns to police that Natalie and a friend found and handled guns and ammunition in father’s residence. Father abruptly enforced mother’s original, more restrictive visitation schedule, an action the trial court could reasonably conclude was retaliatory rather than in Natalie’s best interests. Lending support to this conclusion, father soon liberalized Natalie’s time with mother to Thursday through Sunday, rather than just the weekends authorized by the 1999 order.
“Under the changed circumstance rule, custody modification is appropriate only if the parent seeking modification demonstrates ‘a significant change of circumstances’ indicating that a different custody arrangement would be in the child’s best interest.” (In re Marriage of Brown & Yana (2006) 37 Cal.4th 947, 956; see, e.g., In re Marriage of Lucio (2008) 161 Cal.App.4th 1068, 1076-1077.) Here, the trial court could reasonably conclude the parties’ longstanding, more liberal de facto custody arrangements constituted a significant change from the 1999 order awarding father primary custody. The trial court also could reasonably conclude the revised arrangement, which father entered voluntarily, served Natalie’s best interests. Additionally, the evidence listed in our opening paragraph independently supports the conclusion significantly changed circumstances warranted joint physical custody to serve Natalie’s best interests. Father challenges this best interests determination, asserting mother works many of the nights on which she has custody, but father introduced no evidence to support this contention below.
Accordingly, we affirm the trial court’s joint physical custody order and deny father’s petition for an extraordinary writ and for a temporary stay of the order. Mother is entitled to her costs on appeal.
WE CONCUR: SILLS, P. J., O’LEARY, J.