Opinion
E065409
02-09-2018
In re the Marriage of CHARLES WALKER AND BRITTANY WYSOCKI. CHARLES WALKER, Respondent, v. BRITTANY WYSOCKI, Respondent; SHERRY WYSOCKI et al., Claimants and Appellants.
David B. Dimitruk for Claimants and Appellants. No appearance by Respondents.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.No. FAMRS1202278) OPINION APPEAL from the Superior Court of San Bernardino County. Teresa S. Bennett, Judge. Affirmed. David B. Dimitruk for Claimants and Appellants. No appearance by Respondents.
I
INTRODUCTION
The maternal grandparents of BW (Grandparents) appeal from a 2015 postjudgment order (2015 Order). The order denied their request for modification of a 2012 judgment (2012 Judgment) awarding joint legal and physical custody of BW to BW's natural parents. Grandparents argue that the trial court erred in not transferring custody from BW's parents to Grandparents, or to Grandparents and Mother jointly. BW had lived in Grandparents' home since her birth in 2006 and Grandparents had been a stabilizing force in parenting BW throughout her life. The trial court concluded there had not been a significant change in circumstances to warrant modifying the custodial status as regards Grandparents. Grandparents also contend the trial court erred in diminishing their rights provided in the 2012 Judgment, rather than maintaining the status quo.
We reject Grandparents' contentions and affirm the 2015 Order.
II
FACTUAL AND PROCEDURAL BACKGROUND
BW is the natural child of Mother and Father. BW's parents did not marry each other and resided separately after BW's birth. During the first 18 months of BW's life, BW lived in Alta Loma with Mother, in the home of BW's maternal grandmother (Grandmother) and stepgrandfather. Father lived nearby in Upland, with his grandmother, and maintained frequent and consistent contact with BW. Grandmother and Mother took BW to Father's home for daycare three to five times a week. Father or his grandmother took care of BW.
When BW was about a year and a half old, Mother left BW in Grandparents' care while Mother attended nursing school in Nevada. Mother, however, maintained contact with BW and visited BW at Grandparents' home in California. Grandparents also regularly brought BW to visit Mother in Nevada.
In July 2012, Father filed a Petition to Establish Parental Relationship (2012 Petition), because it had become more difficult for him to exercise parenting time with BW. Also, on one occasion, Father was not informed that BW had received emergency care at the hospital until after BW was transferred to another facility. In Father's 2012 Petition, Father requested sole legal and physical custody of BW. BW was five years old and had just completed kindergarten. Father stated in his supporting declaration that, at the time BW was born, he was only 20 years old and did not have steady employment. He therefore believed it was best for BW to live with Mother in Grandparents' home, with the understanding he would be able to visit BW frequently and have ample parenting time. It was agreed Father would have BW every day, after school, until the evening.
Father further stated in his declaration that, at the time Father filed his 2012 Petition, he had a secure, permanent, full-time job, was 25 years old, and was living in his grandmother's home. Father alleged that, because Grandparents were preventing him from spending time with BW and not allowing him to parent BW, he no longer was agreeable to BW living with Grandparents.
Mother filed opposition to Father's 2012 Petition and requested sole custody of BW. Mother and Grandmother stated in their supporting declarations that Grandparents had provided BW with a good home and paid for BW's medical insurance and expenses. Mother and Father stipulated, and the trial court ordered, joinder of Grandparents as parties to the 2012 Petition proceedings.
In December 2012, Mother moved back in with Grandparents and BW. Mother's fiancé and son, born while Mother lived in Nevada, also resided in Grandparents' home.
A. 2012 Judgment
In December 2012, the family court held a bench trial on Father's 2012 Petition. Father, Mother, Grandparents, and several others provided testimony. During the trial, Father requested that he and Mother share joint legal and physical custody. Father also requested that only Mother and Father, and not Grandparents, make all decisions regarding BW. Father was agreeable to BW remaining in Grandparents' home with Mother, with the primary residence remaining Grandparents' home for school purposes until Mother had her own residence. Father requested frequent shared time with BW. At the trial, Mother and Grandparents requested that BW remain in Grandparents' home, with stepped up visitation for Father. Mother and Grandparents also requested that Mother have sole legal and physical custody of BW.
The 2012 Judgment contained the following findings and orders. The court found that since BW's birth, Father had consistently and frequently spent time with BW. BW had lived with Grandparents since birth. Grandparents had been BW's primary caretakers. Mother recently returned to Grandparents' home and was living there with BW, caring for her and parenting her.
The court further found BW was bonded to Grandparents and it would be detrimental to remove her from them. The parties agreed and the court ordered that any change in BW's residence, which would disrupt the parent plan, would require prior consent of the other parent or a court order. The court also found that Mother and Father were not communicating with each other regarding BW's health, education, and welfare, and it was in BW's best interests that they start doing so. The court further found that, although Family Code section 3041 was not relevant because Grandparents were not seeking custody, Father had rebutted the section 3041 presumption that granting custody to Mother and Father would be detrimental to BW and granting custody to Grandparents was in BW's best interest.
Unless otherwise noted, all statutory references are to the Family Code. --------
The court awarded Mother and Father joint legal and physical custody of BW, with Mother and Father ordered to attend a coparenting class. The court noted that section 3041 did not apply because Grandparents were no longer requesting custody of BW. The court concluded joint custody between Mother and Father was in BW's best interest, "as long as [Grandparents] remain an integral part of [BW's] life." BW's primary residence for school purposes was to be with Mother, as long as Mother continued living with Grandparents or lived within BW's current school district, and BW was able to remain at her current school. The court ordered that if Mother relocated and sought to remove BW from her current school, Mother or Father would need to file a petition for modification of the existing custodial school parent designation.
The court-ordered parenting plan provided for Mother and Father to share physical custody of BW, with Father spending alternating weekends with BW. Mother and Father were to share equally holiday, spring break, winter break, and summer break time. The court ordered visitation for Grandparents as well. Regardless of whether BW remained in Grandparents' home or Mother relocated with BW, Grandparents were granted one weekend per month with BW during Mother's parenting time; two weeks of summer vacation time with BW, with one week during Mother's time and one week during Father's time; shared time with BW on Grandparents' birthdays; and shared time on Mother's Day and Father's Day with Grandparents, in the event BW was no longer living with Grandparents.
B. Modification of 2015 Judgment
On July 15, 2013, Father filed a request for an order (RFO) seeking modification of the 2012 Judgment. In August 2013, the court increased Father's visitation with BW to include every Tuesday and Thursday after school. Father stated in a supplemental declaration that he had met with Mother to attempt to resolve their differences. During the meeting, Mother told Father that Grandmother was interfering with her ability to parent BW and Mother was hoping to move out of Grandparents' home. Mother stated in her declaration that BW did not want to spend the night at Father's home. Mother requested the court to suspend BW's overnight visits with Father until BW attended additional therapy and became more comfortable with Father. Mother denied that Grandmother was attempting to alienate BW from Father. In January 2014, the court granted Father's request for an Evidence Code section 730 evaluation and appointed Dr. Amy Miller as the evaluator.
In July 2014, Grandparents, as joined parties, filed a responsive declaration to Father's RFO. Grandparents objected to Father having custody of BW, and requested Mother and Grandparents be awarded joint primary custody. Grandmother stated in her supporting declaration that BW was suffering from medical problems that developed as a result of Mother and Father's interference in BW's life. Mother was involved in a relationship that resulted in Mother caring for a special needs child. Grandmother believed Mother was going to move out of Grandparents' home. Grandmother therefore requested the court to award Grandparents primary custody so that BW would remain in their home, where BW had lived since birth. Grandmother indicated that she believed Mother and Father were not fit to parent BW.
In January 2015, Father filed another RFO seeking to modify custody and visitation, alleging that "The Maternal Grandmother has blocked and attempted to thwart the Father from his daughter to such a degree and with such vehemence that co-parenting with her is not possible." Father proposed that Mother and Father share legal and physical custody of BW, and that all decisions regarding BW be made solely by Mother and Father. The court conducted a trial as to issues raised in Mother and Father's RFOs. The trial extended over a period of several months, from November 2014 through May 7, 2015, with written closing arguments submitted in June 2015.
In April 2015, Father stated in a supplemental declaration that Mother had testified that she had moved into an apartment in Upland with her boyfriend, but only lived there when BW was staying with Father. Mother lived at Grandparents' home when BW was staying there. In May 2015, Mother filed a supplemental declaration discussing disagreements and problems arising between Mother and Father, and responding to Father's complaints in his supplemental declaration.
On June 19, 2015, Mother filed an RFO requesting shared custody of BW with Grandparents, and exclusion of Father from all decisionmaking as to BW's health, education, and welfare. Mother's supporting declaration indicated that she and Father were experiencing frequent disagreements and acrimony regarding BW, including disagreements over BW's medical care, therapy, and visitation.
In June 2015, Grandparents filed a responsive declaration to Father's RFO, objecting to Father having custody and requesting termination of Mother and Father's joint custody. Grandparents requested joint legal custody with Mother, with Grandparents receiving sole physical custody and any visitation by Father subject to Mother and Grandparents' approval. Father filed opposition, to which Grandparents filed another responsive declaration disagreeing with Father's statements and asserting that BW should continue living with Grandparents. In June 2015, Mother filed a supplemental declaration complaining that Father had not communicated with her regarding BW's medical care.
In a supplemental declaration filed in October 2015, Father requested the court to order that he and Mother be awarded joint legal and physical custody, and that the court vacate the Order for Joinder of Grandparents in the litigation. Father believed that he and Mother did well coparenting BW until Grandmother interfered.
C. Tentative 2015 Order and Ruling on Objections
After completing the trial, the court issued a written tentative ruling. In September 2015, the trial court also filed a ruling responding to Grandparents' objections to the tentative, and ordered that the tentative ruling and ruling on the objections become the final ruling. The court noted that it had considered the unique role Grandparents played in BW's life but found that BW had bonded with Mother and Father and they had been parenting her. The court concluded circumstances existing at the time of the 2012 Judgment remained primarily unchanged at the time of the 2015 trial. The only change was that Mother, her fiancé, and their son had moved out of Grandparents' home, but Mother returned when BW was at Grandparents' home.
The court found that Grandparents' home was not the only stable home BW had known, as she had consistently spent parenting time with Father in his home as well. The court found that BW had continuing and frequent contact with Father that had increased over the years. The court acknowledged that BW's "base" remained Grandparents' residence, and therefore ordered that BW's school custody home remain Grandparents' home. The court ordered that BW remain in her current school through elementary school, regardless of whether she spent the night at Father's, Mother's, or Grandparents' home. The court noted that Mother was requesting BW remain at Grandparents' home during Mother's alternating visitation week with BW.
The court clarified that "the court finds no change in circumstances that would warrant a removal of physical or legal custody from [Father] or [Mother] in favor of [Grandparents] as both [Father] and [Mother] had physical and legal custody of [BW] since the court's [2012] ruling and nothing either parent had done would warrant removal[] of custody from them in favor of [Grandparents]." The court noted that the 2012 Judgment contemplated that Mother might move from Grandparents' home and therefore Mother's relocation to a home nearby did not constitute a change in circumstance warranting Father or Mother lose physical custody of BW. The court further found that Mother and Father were having difficulty with shared legal custody. Therefore the court found it necessary to modify legal custody as between Mother and Father.
The court rejected Grandparents' contention section 3041 applied. Although Grandparents initially filled the parenting role under section 3041, both Mother and Father became more involved in BW's life, and BW was never legally removed from Mother or Father's custody in favor of Grandparents. The court therefore found that it was not in BW's best interest to transfer custody to Grandparents or to Grandparents and Mother, to the exclusion of Father. The court ordered its ruling responding to Grandparents' objections to the tentative order incorporated into the final court order entered on December 18, 2015 (2015 Order).
D. 2015 Order - Physical Custody
The 2015 Order included the following findings and orders regarding the physical custody of BW. The court found it would not be detrimental to BW to be in the custody and care of either Father or Mother, as long as BW's bond with Grandparents was allowed to continue. The court further concluded, based on the court-appointed evaluator's testimony that, although Grandparents made a significant contribution to BW's upbringing, Grandparents needed to learn to allow BW to live with her parents without feeling disloyal to Grandparents. Grandparents further needed to begin relinquishing their parental role as to BW and encourage Mother and Father to take on the responsibilities of parenting BW.
The court found that the primary difference between when the 2012 Judgment was entered and the time of the 2015 Order was that Mother's fiancé and son no longer lived in Grandparents' home and Mother did not live there except when BW was there. The court therefore found that "there has been no change in circumstance presented to this Court concerning why either [Father] or [Mother] should be found to relinquish custody of their daughter to [Grandparents] as these issues were known to the Court in 2012 and continue to [t]his date due to the unique circumstances of how [BW] was raised."
Furthermore, Mother testified at the 2015 trial that she wanted BW to continue living in Grandparents' home regardless of where Mother was living. The court further noted that Grandparents and Mother "fail to recognize that [BW] now has two homes, one when she resides with [Father] and one when she resides with [Mother] in [Grandparents'] home." The court stated that the intent of the 2015 Order was to take into account Mother moving out of Grandparents' home, BW's unique bond with Grandparents, and the importance of maintaining BW's stability in her school setting.
Mother argued at trial that it was in BW's best interests for Mother and Grandparents to share custody, to the exclusion of Father. Mother stated that Father withheld legal custody information from her, took unilateral action, and then notified her after the fact. Mother testified that BW feared she would be removed from Grandparents, was uncomfortable spending the night at Father's home, had developed facial tics, and was under continual pressure. Mother wanted to limit Father's parenting time to day visits until BW requested night visits. Mother also wanted to share decision-making with Grandparents as to BW's care and legal matters.
The court acknowledged Grandparents' concerns that Mother's move out of their home would lead to the removal of BW from Grandparents' home. The court found, however, that the relocation of Mother was contemplated by the court in the 2012 Judgment, which ordered that should Mother relocate from Grandparents' home and seek to take BW with her outside BW's current school district, either parent could petition to modify the school custodial parent. The court also found that Mother was seeking to allow BW to remain in her current school and Mother's relocation would not affect the share plan. The court further found that changing BW's school while she attended elementary school was not in her best interest. The court therefore ordered that BW was to remain in her current school throughout elementary school. Upon BW's completion of elementary school, the parties could seek to modify school placement.
The court denied Grandparents' request for physical custody, and ordered them to attend counseling to assist Grandparents in learning how to encourage Mother and Father's parenting of BW. The court also ordered Mother and Father to attend counseling to address their unique parenting situation, and to arrange for counseling for BW. The court ordered Mother and Father to continue sharing physical custody of BW, as ordered in the 2012 Judgment, with Grandparents' current residence to remain BW's residence for school purposes.
E. 2015 Order - Legal Custody
The court concluded that because of Mother and Father's continual disagreements regarding legal custody issues and, because they were not communicating effectively with each other as to legal custody issues, it was no longer feasible for Mother and Father to share legal custody. The court found that Mother and Father's testimony indicated that neither party was notifying the other party in advance of nonemergency medical issues, and were not cooperating with each other. The court therefore awarded sole legal custody to Father as to medical and dental care.
The court further ordered that Grandparents were to have visitation with BW every Wednesday night and every fourth weekend. This visitation was to be suspended during the winter, spring, and summer breaks. Grandparents were also granted visitation on Wednesday before Thanksgiving when Mother had BW for the Thanksgiving holiday; two weeks during the summer; and phone contact every Tuesday and Thursday evening.
III
STANDARD OF REVIEW
The resolution of a legal dispute involves three steps: (1) establishing the facts; (2) determining the applicable law; and (3) applying the law to the facts. (Guardianship of L.V. (2006) 136 Cal.App.4th 481, 487.) The first step, determining the relevant facts, is reviewed on appeal with deference to the factfinder's decision by applying the substantial evidence test. (Guardianship of Vaughan (2012) 207 Cal.App.4th 1055, 1067.) "'We view the evidence in a light most favorable to the trial court's decision, resolving all conflicts in the evidence and drawing all reasonable inferences in support of that court's findings. [Citation.] In short, we review the evidence but do not weigh it; we defer to the trial court's findings to the extent they are supported by substantial evidence.'" (Ibid.) With regard to the second step, determining the applicable law, we apply the de novo standard of review.
The third step, applying the law to the facts, is reviewed under the deferential standard of review. (Guardianship of Vaughan, supra, 207 Cal.App.4th at p. 1067.) "'The issue of custody is one committed to the discretion of the trial court. [Citations.] Only in an exceptional case, in which the record so strongly supported a party's claim to custody that a denial of that claim by the trial court would constitute an abuse of discretion may an appellate court itself decide who should be granted custody . . . .'" (Ibid, quoting In re B.G. (1974) 11 Cal.3d 679, 699; see Montenegro v. Diaz (2001) 26 Cal.4th 249, 255, and § 3040, subd. (b).)
IV
GRANDPARENTS' CUSTODY CLAIM UNDER SECTION 3041
This case involves the birth of a child, BW, to parents who were young, unmarried, and not living together. BW's maternal grandparents stepped in and assumed the day-to-day responsibilities of caring for BW and provided Mother and her infant with a stable home. When BW was 18 months old, Mother left BW with Grandparents while Mother attended an out-of-state nursing program. Father lived near Grandparents' home and visited BW regularly. When Father filed a paternity petition seeking to establish a parental relationship with BW, Mother moved back in with Grandparents to parent BW. Mother, Father, and Grandparents, struggled with sharing the responsibilities of parenting BW. It is apparent from our thorough review of the record that all parties, Mother, Father, and Grandparents, love BW and want the best for her but have had numerous disagreements over caring for her. Grandparents and Father have developed animosity toward each other, as have Mother and Father toward each other. This has interfered with Mother and Father's ability to parent BW effectively, and has impeded Mother, Father, and Grandparents from fully cooperating with each other and doing what is best for BW.
These circumstances existed when the trial court entered its 2012 Judgment, which provided a detailed plan for joint custody between Mother and Father. Grandparents received visitation rights, and the court ordered that their home was to remain BW's home for purposes of BW attending school, so that BW would not suffer the trauma of changing schools. At the time of the 2012 Judgment, Mother was living with BW in Grandparents' home, where BW had resided since birth. Grandparents were joined as parties to the 2012 custody proceedings but waived their claims to custody. The court in the 2012 Judgment anticipated that at some point Mother would eventually move out of Grandparents' home and seek to take BW with her. The 2012 Judgment instructed that if this were to occur and the move would result in removing BW from her current school or disrupt the shared parenting plan, the parties should file an RFO seeking modification of custody.
The instant court proceedings arise from Mother moving out of Grandparents' home, and also from Mother, Father, and Grandparents' continuing inability to share parenting responsibilities and care of BW. Grandparents argue that they should be awarded sole custody of BW or, at least, shared custody with Mother, because Grandparents' have cared for BW and provided her with a loving, stable home since her birth. BW has a strong bond with Grandparents, and her need for continuity and stability would be furthered by preserving established patterns of care and emotional bonds.
BW is fortunate to have such loving, caring Grandparents. Nevertheless, BW also has a Mother and Father who also love her. BW is closely bonded to her parents, who have made a concerted effort to spend time with her and assume their parenting responsibilities. Doing so has been difficult for Mother and Father under circumstances in which Grandparents initially cared for BW and were reluctant to relinquish their parenting of BW.
Even though Grandmother may believe she would do a better job of parenting BW and should be permitted to continue to raise BW, Mother and Father must be permitted to raise their own child, because they both have demonstrated they are committed to doing their best to parent BW. This led to the court awarding Mother and Father shared custody of BW in 2012, whereas Grandparents have not been awarded any legal rights to custody of BW. Although Grandmother has done what she sincerely believes is best for BW, Grandmother must relinquish parenting of BW to BW's parents and not interfere with Mother and Father's well-intentioned efforts to parent BW.
A. Applicable Test For Modification of the 2015 Child Custody Order
Grandparents contend the trial court applied the wrong legal standard when determining whether to modify custody. Citing Guardianship of Vaughan, supra, 207 Cal.App.4th 1055, Grandparents argue that the court erroneously employed a "change of circumstances" test, whereas under section 3041, the court should have applied a "best interest" test.
"Under California's statutory scheme governing child custody and visitation determinations, the overarching concern is the best interest of the child. The court and the family have 'the widest discretion to choose a parenting plan that is in the best interest of the child.' . . . When determining the best interest of the child, relevant factors include the health, safety and welfare of the child, any history of abuse by one parent against the child or the other parent, and the nature and amount of contact with the parents. (§ 3011.)" (Montenegro v. Diaz, supra, 26 Cal.4th at p. 255, quoting § 3040, former subd. (b), now subd. (c); italics added.)
"Although the statutory scheme only requires courts to ascertain the 'best interest of the child' (e.g., §§ 3011, 3020, 3040, 3087), this court has articulated a variation on the best interest standard once a final judicial custody determination is in place. Under the so-called changed circumstance rule, 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. [Citation.] According to our earlier decisions, '[t]he changed-circumstance rule 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 v. Diaz, supra, 26 Cal.4th at p. 256; italics added.)
In the instant case, the changed circumstances test applies because there was a final custody judgment in 2012; Grandparents were joined in the 2012 proceedings as parties for purposes of litigating custody and maintaining their relationship with BW under section 3041; the 2015 proceedings concerned modification of that 2012 Judgment; and, unlike in Guardianship of Vaughan, supra, 207 Cal.App.4th 1055, Grandparents did not petition for guardianship under section 3041 and, at the time of the 2012 Judgment and 2015 Order, Mother and Father were parenting BW. (Vaughan, at p. 1071.)
B. No Changed Circumstances
As the court found and Grandparents acknowledge in their appellant's opening brief, there were no significant changes following the 2012 Judgment relevant to Grandparents' custody claims. The 2012 Judgment states that "[s]hould [Mother] relocate and take [BW] with her where [BW] would not be allowed to remain in her current school and the current district, either party may petition the Court for a Request For Order to modify custodial school parent."
At the time of the 2015 Order, Mother had moved to an apartment in Alta Loma with her fiancé and son. Mother's residence was outside BW's current school district in Upland. However, BW's schooling was not affected because BW and Mother continued living at Grandparents' home during Mother and Grandparents' visitation time, just as Mother had done before. The trial court reasonably found that, although Mother had moved, her move did not "constitute a significant relocation that would affect the shared parenting plan at this time as the cities are next to each other." Furthermore, Mother had not expressed any intent to remove BW from Grandparents' home or from BW's current school. To the contrary, Mother requested that BW remain in Grandparents' home to allow stability for BW.
C. Application of Section 3041
Even if the court was required to consider custody modification under section 3041, there was no abuse of discretion in not awarding Grandparents custody. Before granting custody under section 3041 to a nonparent over parental objection, the court must find clear and convincing evidence that "[(1)] granting custody to a parent would be detrimental to the child and that [(2)] granting custody to the nonparent is required to serve the best interest of the child." (§ 3041, subds. (b), (a); see Guardianship of Vaughan, supra, 207 Cal.App.4th at pp. 1069-1070.)
Section 3041, subdivision (c) states that, "[a]s used in this section, 'detriment to the child' includes the harm of removal from a stable placement of a child with a person who has assumed, on a day-to-day basis, the role of his or her parent, fulfilling both the child's physical needs and the child's psychological needs for care and affection, and who has assumed that role for a substantial period of time. A finding of detriment does not require any finding of unfitness of the parents." Subdivision (b) of section 3041 states that, "[s]ubject to subdivision (d), a finding that parental custody would be detrimental to the child shall be supported by clear and convincing evidence."
Subdivision (d) of section 3041 states: "Notwithstanding subdivision (b), if the court finds by a preponderance of the evidence that the person to whom custody may be given is a person described in subdivision (c), this finding shall constitute a finding that the [nonparty] custody is in the best interest of the child and that parental custody would be detrimental to the child absent a showing by a preponderance of the evidence to the contrary."
Here, this presumption of detriment and best interest has been rebutted. The record shows that since 2012, through the time of the 2015 trial, Mother and Father shared the role of parenting BW, fulfilling both her physical needs and psychological needs for care and affection. Even though BW was closely bonded to Grandparents and had lived in their home since her birth, BW had also spent a considerable amount of time living with Mother and Father, to whom she was closely bonded. The record demonstrates that both parents were very involved in BW's life and were making a concerted effort to parent her under a difficult, unique tripartite arrangement.
Although Grandparents assumed a parenting role of BW initially, Mother and Father maintained frequent and consistent contact with BW during that time, including while Mother was attending college out of state for about three years. In 2012, Mother resumed her parenting responsibilities upon moving back into Grandparents' home. Father continued his frequent and consistent visitation with BW as well. By the time of the 2012 Judgment, and thereafter up until 2015, Mother and Father demonstrated they were committed to sharing parenting BW. This resulted in Grandparents waiving their request for custody of BW in 2012, and the court ordering continued joint custody between Mother and Father in 2015.
We recognize that "the critical finding of detriment to the child does not necessarily turn on parental unfitness. It may be based on the prospect that a successful, established custodial arrangement would be disrupted." (Guardianship of Vaughan, supra, 207 Cal.App.4th at p. 1070.) However, here, not only was there substantial evidence Mother and Father were fit to parent BW but, in addition, the 2012 Judgment and 2015 Order appropriately maintained the status quo of BW living not only with Grandparents but also with Mother and Father. Specific provisions of the 2012 Judgment and 2015 Order provided for continuing BW's existing living environment and allowed BW to remain in her current school throughout elementary school.
The record demonstrates that granting custody to Mother and Father would not be detrimental to BW, even though the court recognized that BW was closely bonded to Grandparents and had been living with them since birth. BW was also closely bonded to her parents and had lived with them since 2012, when the court awarded Mother and Father shared physical custody of BW, and ordered stepped up visitation for Father. Under these unique circumstances we conclude the trial court did not abuse its discretion in rejecting Grandparents' request for custody, where a preponderance of the evidence refuted any alleged presumption under section 3041, subdivision (d) that Grandparents' custody of BW was in BW's best interest and that parental custody would be detrimental to BW. This is not a case in which BW's parents' custody rights must give way to Grandparents' well-intentioned desire to raise BW in their home. (Guardianship of Vaughan, supra, 207 Cal.App.4th at p. 1068.)
The instant case is distinguishable from Vaughan, in which the court held the trial court erred in denying the grandparents' petition for guardianship of their grandchildren. The Vaughan court held that a finding of parent abandonment of the children was not required for guardianship, and remanded the case to allow the trial court to consider whether the mother had rebutted the section 3041 stable placement presumption. (Guardianship of Vaughan, supra, 207 Cal.App.4th at pp. 1059-1060, 1071-1073.)
In Vaughan, the father was incarcerated and the mother left the children with her parents while the mother was hospitalized for mental health care. The mother did not anticipate long-term separation from her children. The court initially granted the grandparents temporary custody, and then three months later granted temporary guardianship. Grandparents filed a petition for guardianship under section 3041. During the trial, two court-appointed psychologists and the children's therapist recommended that the children remain with their grandparents, finding that returning the children to the mother would place the children in danger of neglect and abuse. Nevertheless, the trial court denied grandparents' petition for guardianship because the mother had intended only temporary placement of the children with the grandparents and had not abandoned them. The Vaughan court reversed, holding that the statutory presumption under section 3041, subdivision (c) does not require the child to be abandoned. (Guardianship of Vaughan, supra, 207 Cal.App.4th at p. 1071.)
The Vaughan court explained that "Family Code section 3041, subdivision (c), 'is a codification of the de facto parent doctrine, which grants standing [in dependency actions] to persons who . . . have come to function as parent to a child, even though not the child's natural parent. [Citation.]' [Citation.] The doctrine recognizes the interest a person acquires 'in time' in the care and custody of a child by raising the child in his own home. [Citation.] [¶] There is nothing in the de facto parent doctrine that conditions its establishment on the biological parent abandoning the child to the de facto parent. . . . Whether de facto parenthood exists is not based on the intentions of the biological parent or the manner in which the de facto parent gained custody. Rather, it is based on the quality of the relationship between the child and the de facto parent. [Citation.] The law does not impose an additional precondition on the doctrine's operation in the context of probate guardianships." (Guardianship of Vaughan, supra, 207 Cal.App.4th at p. 1072.)
Here, although Mother left BW with Grandparents while she was attending college out of state, unlike in Vaughan, BW's parents maintained frequent and consistent contact with BW and, as of 2012 and thereafter, BW's parents made a concerted effort to assume their parenting responsibilities and lived with BW in accordance with a court-ordered shared parenting plan. The record demonstrates that the section 3041 stable placement presumption was rebutted by a showing that Mother and Father's joint custody of BW would not be detrimental to BW, and that awarding Grandparents custody, to the exclusion of Father, was not in BW's best interest.
V
MAINTAINING THE STATUS QUO
Grandparents alternatively argue that, if this court finds section 3041 inapplicable, the trial court erred in modifying the 2012 Judgment such that it diminished Grandparents' interests as de facto parents of BW. Grandparents assert that the court was required to maintain the status quo because there were no changed circumstances. Grandparents do not specify what terms of the 2012 Judgment should not have been changed or why doing so constituted an abuse of discretion. As with the 2012 Judgment, the 2015 Order allows BW to maintain her relationship with Grandparents by providing Grandparents with reasonable visitation, while contemplating that Mother or Father may eventually move and seek to have BW attend school in a different school district. Also, as with the 2012 Judgment, the 2015 Order ensures that there will be no change in BW's school, at least while she is attending elementary school, and after elementary school, only upon the court granting an RFO for modification. The 2015 Order preserves the status quo, with the exception of reasonable modifications of the 2012 Judgment.
VI
DISPOSITION
The postjudgment 2015 Order is affirmed. The parties shall bear their own costs on appeal.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
CODRINGTON
J. We concur: RAMIREZ
P. J. MILLER
J.