Opinion
F075877
06-22-2018
In re the Marriage of AUSTIN J. and CHRISTINE A. DIAS. AUSTIN J. DIAS, Respondent, v. CHRISTINE A. KELLER-BATISTA, Appellant.
McCormick, Barstow, Sheppard, Wayte & Carruth, Scott M. Reddie and Jerry D. Casheros for Appellant. Dias Law Firm, Inc., Michael A. Dias, Jonette M. Montgomery and Ella R. Floresca for Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 13FL0084)
OPINION
APPEAL from a judgment of the Superior Court of Kings County. Michael J. Reinhart, Judge. McCormick, Barstow, Sheppard, Wayte & Carruth, Scott M. Reddie and Jerry D. Casheros for Appellant. Dias Law Firm, Inc., Michael A. Dias, Jonette M. Montgomery and Ella R. Floresca for Respondent.
-ooOoo-
Christine A. Keller-Batista (Mother) and Austin J. Dias (Father) share joint legal custody of two minor children from their previous marriage. This appeal concerns Father's request to modify a visitation schedule under which his time with the children was limited to every other weekend and two midweek overnight visits per month. Mother claims the trial court abused its discretion by granting Father equal visitation rights and ordering the parties to follow an alternating weekly physical custody plan. We affirm the challenged order.
FACTUAL AND PROCEDURAL BACKGROUND
Father and Mother began dating as teenagers and married in 2010. Their son was born in May of the same year. Mother gave birth to a second child, the couple's daughter, in July 2011.
In February 2013, the couple separated and Father filed for divorce. Both events were allegedly precipitated by Mother's infidelity. On or about February 15, 2013, Father filed a request for an order establishing child custody and visitation rights. He sought joint legal and physical custody of the children, proposing "a 4-day/3-day rotation schedule with alternating weeks." In a supporting declaration, Father alleged he had moved out of the family home because of Mother's extramarital affair. He had theretofore "never spent more than two days away from the [c]hildren at any one time, and [had] not spent more than a total of four days away from [them] during their lives." The children's ages on the date of separation were two years, nine months (son) and one year, six months (daughter).
Within a week of Father's request for joint custody, Mother sought and obtained a temporary restraining order (TRO) based on allegations of domestic violence. The TRO was originally set to expire on March 18, 2013. In the interim, on March 4, 2013, a stipulated order was filed establishing joint legal custody of the children but giving Mother primary physical custody. Father's visitation rights were limited to every Monday, Wednesday, and Friday during the hours of 4:00 p.m. to 8:00 p.m. Beginning March 31, 2013, further visitation was allowed every other Sunday from 9:00 a.m. to 1:00 p.m. Father would later allege he compromised on his original request for 50/50 visitation only because Mother had "refused to allow [him] any contact with the children until said stipulation was signed" and because the order specified it was "without prejudice to either party to request a different parenting plan to the Court."
Mother's request for a domestic violence restraining order was the subject of protracted litigation. Consequently, the TRO that had issued on February 22, 2013, remained in place for 15 months. The divorce was finalized in August 2013, but issues concerning the TRO and related petition were not resolved until June 2014.
Father was ultimately found to have caused damage to walls and furniture in the family home during verbal disputes with Mother prior to the date of separation. During one such incident, Father remarked he had "kicked the bar stool instead of striking her." These acts constituted domestic violence within the meaning of Family Code sections 6203 and 6211. However, the trial court found (1) the incidents "were unique to the then existing circumstances of the marriage," (2) son and daughter "were never in any danger of harm," and (3) Father "was not presently a danger to the parties' children." A new order issued with terms and conditions similar to those of the TRO, with a notable exception being that Father could now attend the children's school activities and sporting events. By its terms, the restraining order terminated on February 22, 2015.
Unless otherwise specified, all further statutory references are to the Family Code.
On June 6, 2014, the trial court referred the parties to child custody recommending counseling with a child custody recommending counselor named Lezlie Abbott. The mediation took place on July 3, 2014. In her report, Ms. Abbott noted both parties struggled "with co-parenting issues during and after their separation that has led to a lack of cooperative co-parenting, ineffective communication and frequent litigation that is overshadowing the needs and best interests of the children." Father alleged Mother was "frustrating" his contact and visitation with the children in retaliation for his petitioning for custody, visitation, and marital dissolution. Mother reported, inter alia, concern for the children "because Father has issues with anger and drugs" (i.e., alcohol and marijuana). She refused to agree to additional visitation unless Father admitted the truth of her allegations and enrolled in a "52-week Batterer's Treatment program." As a partial compromise, the parties agreed to refrain from using any form of physical discipline with the children, ensure there would be no firearms in the children's presence, abstain from alcohol and all nonprescribed psychoactive drugs while caring for the children, and submit to drug screening at the other party's request.
Section 3170 requires all contested custody or visitation issues between the parties be set for mediation. When consistent with local court rules, the mediator may submit a recommendation to the court regarding custody or visitation. This process is formally known as "child custody recommending counseling," and the mediator is referred to as a "child custody recommending counselor." (§ 3183, subd. (a).) In the interest of simplicity, we hereafter use the words "mediation" and "mediator" in place of the statutory terminology.
The mediator's report states Mother contacted child protective services (CPS) in March 2014 alleging Father had spanked one of the children too hard. CPS determined the allegation to be unfounded. With regard to Mother's demand for Father's enrollment in a "Batterer's Treatment program," the trial court had already rejected, for insufficient evidence, allegations of prior physical abuse (namely, her claim Father had once head-butted her), and had thus refused to order Father's participation in a batterer's program pursuant to section 6343. As for the alleged substance abuse, both parties were ordered to complete a substance abuse assessment. The record indicates Father later submitted to approximately eight random drug tests at Mother's request, all of which came back negative.
As of the July 2014 mediation, nearly 17 months had passed since Father and the children last spent the night together in the same house. Noting the lack of overnight visits, Ms. Abbott recommended modifying the visitation schedule. She also recommended Father complete an anger management program. On July 21, 2014, the trial court partially adopted Ms. Abbott's recommendations and ordered, inter alia, overnight visits commence on August 1, 2014. In the meantime, Father was to enroll in a 14-week anger management program.
On August 28, 2014, the court ordered Father and Mother to enroll in coparenting classes and re-referred them to Ms. Abbott for another mediation. The second mediation took place in November 2014. According to Ms. Abbott's report, the parties described "a substantial reduction in the acrimony between them since last mediating," and now "the point of clash is in regards to the 7-Day alternating Parenting Plan proposed by Father." From the mediator's perspective, both parents had "offered reasonable rationale as to why they would like to have their proposed parenting plan adopted by the Court."
Despite recommending an expanded visitation schedule, Ms. Abbott did not endorse Father's proposal for alternating seven-day visits with each parent. Two reasons were given: (1) concern Father would not be able to personally provide care for seven days at a time, and (2) the children's ages. Citing the "Adler" guidelines, Ms. Abbott claimed "scholarly research indicates that a seven day separation from the custodial parent (or non-custodial parent) is difficult for children under the age six or seven." The report was dated December 5, 2014, meaning the children's ages were four years, seven months (son) and three years, four months (daughter) at that time.
On April 27, 2015, a stipulated judgment was entered as to various custody and visitation issues. Under its terms, Father was granted visitation every other weekend, from Friday at 5:00 p.m. to Monday at 5:00 p.m., with alternating midweek visits from Wednesday at 5:00 p.m. to Thursday at 5:00 p.m. In other words, he was able to spend at least one night per week with the children.
In May 2015, court proceedings were held to resolve three disputed issues: (1) the location for exchanges of physical custody (Father wanted the children picked up and dropped off at the parties' homes; Mother wanted to meet at a public location); (2) the "right of first refusal" as to the children's caretaker whenever the custodial parent would be unavailable for more than a certain number of hours; and (3) the necessity of firearm restrictions that had been in place since March 2013. Father was renewing his concealed weapons permit and wanted permission to keep a firearm on his person during visitation, as he had allegedly done when the parties were married and living together. The trial court ruled against him on all three issues. Father initiated an appeal but filed a request for dismissal before any briefing was submitted.
In light of Mother's references to these matters in her opening brief, we, on our own motion, take judicial notice of our records in case No. F072268. (Evid. Code, § 452, subd. (d).)
In June 2016, Father filed a request for modification of the April 27, 2015, and May 11, 2015, custody and visitation orders. He asked for 50/50 visitation on a "week to week" schedule, removal of the firearms restriction, an order requiring the children "be enrolled in at least one extra-curricular activity per season," and an order granting him a 24-hour window in which to return any missed calls or text messages from Mother while the children were in his care. In a supporting declaration, Father stated Mother had remarried and he was engaged to be remarried as well. He also provided details about an ongoing dispute: "[Mother] has a habit of continuously calling me during my custodial time, especially when she knows that I am at a special event with the Children. ... In one weekend alone, [she] called law enforcement three (3) times due to the fact that I was not able to pick up the phone and return her call immediately."
The trial court referred the parties to a new mediator, Lynn Pearson, for a third mediation. The mediation was held on July 14, 2016, and it produced mixed results. The parties worked to resolve some of their communication problems, agreeing the noncustodial parent should be entitled to nightly telephone contact with the children. However, Father accused Ms. Pearson of behaving unprofessionally and showing favoritism toward Mother. Father moved to have Ms. Pearson disqualified and her report stricken on grounds of bias and conflict of interest, but the motion was denied.
In her report, dated August 4, 2016, Ms. Pearson recommended Father's Wednesday-to-Thursday overnight visits occur on a weekly rather than biweekly basis, but the duration of his visits be shortened to Wednesday at 3:00 p.m. to Thursday at 8:00 a.m., and Friday at 3:00 p.m. to Monday at 8:00 a.m. She also recommended each parent have "up to two weeks' non-consecutive" vacation time with the children annually. In her opinion, no further changes were warranted: "While Father indicated multiple times his request to have a 'normalized' parenting plan, it should be noted for the children, this is normal, as the children have primarily resided with Mother. Therefore, for stability and continuity in care and the age [of] the children, it would be recommended that the current parenting plan remain in effect with Father to share additional time every Wednesday overnight."
On December 8, 2016, an evidentiary hearing commenced with regard to Father's request for equal visitation rights. Ms. Pearson was the first witness to testify. When asked to explain why she had recommended against equal visitation, she cited the parties' history of "[c]onflict and the lack of communication." In particular, she was concerned by Mother's reports of Father ignoring her attempts to communicate with the children on his visitation days. Ms. Pearson also noted the history of problems surrounding exchanges of physical custody, e.g., disputes over the presence of third parties during drop-offs.
In terms of connecting the parties' disputes to the suitability of a particular visitation schedule, Ms. Pearson testified, "My guess is that a lot of this conflict might be occurring when the children are present." Since there was conflict under the existing arrangement, she reasoned "it would create more conflict between the parties if they had a longer length of time of separation." In other words, if the amount of time the children spent with Father were to increase, so too would the amount of fighting between Father and Mother. Father's counsel asked her, "Now, if there was less exchanges, wouldn't that reduce the conflict between these parties?" Ms. Pearson replied, "I would hope so. I mean I don't know. It would be up to the parents."
Ms. Pearson's recommendation was based in part on Mother's historical role as the primary caregiver. She also claimed to have factored the "Adler" guidelines into her analysis:
"[The children] are embarking on an age in which they could potentially utilize an alternating one-week parenting plan. I believe the children are 5
and 6 and according to Adler around age 6 you can potentially start utilizing that plan, if the parents obviously are in agreement to it. However, these particular parents are not in agreement to it. And because of their lack of co-parenting it wouldn't be something that I would utilize. Again, it's a guideline."
Father testified on the second day of the hearing. Although his moving papers had requested "week to week visitation" with "exchanges to occur on Mondays at school," Father's testimony proposed a "2-2-5-5" plan under which Mondays and Tuesdays would be reserved for Mother, Wednesdays and Thursdays would be reserved for him, and visitation on Friday through Sunday would alternate each week. He explained the nature of his work and career allowed him to set his own hours and essentially be a stay-at-home dad whenever the children were in his care.
Father's testimony included allegations that Mother had repeatedly stifled his ability to communicate and bond with the children. He also discussed the parties' history of conflict surrounding exchanges of physical custody, which had led to court orders requiring the drop-offs to occur at public locations and barring the presence of third parties. Father had once failed to comply with the latter restriction by bringing his 12-year-old cousin to an exchange. Mother reacted by taking photographs to document Father's violation of the order and allegedly screamed at him in front of the children, "saying she was going to call the cops." For the sake of convenience and to minimize conflict, Father wanted the orders modified to allow curbside exchanges at the parties' homes and/or at the children's school.
On December 12, 2016, the evidentiary hearing was continued. Father's testimony did not resume until April 25, 2017. The delay was due in part to Mother giving birth to her third child. Upon retaking the witness stand, Father reported he and Mother had completed several joint coparenting sessions with a psychologist, which had gone "really well" and "helped ... tremendously." He expressed optimism for the future, claiming his and Mother's coparenting efforts had dramatically improved since their mediation with Lynn Pearson nine months earlier. Father noted that "just this morning we've been texting about [our son]. We text weekly, the kids FaceTime me—her all the time, or me now.... [¶] [Our daughter] was really sick the other day, and both of us took her to the doctor ...."
On our own motion, we take judicial notice that FaceTime is a video-conferencing application available on Apple electronic devices, e.g., the iPhone and iPad. (Evid. Code, § 452, subds. (g), (h).) --------
Mother did not share Father's enthusiasm about the coparenting sessions. When asked if the sessions had brought about any changes, she testified: "Generally it's been about the same, with some minor changes here and there, but it's not consistent. [¶] ... [¶] ... I'm still having some issues getting hold of the children when they're over there." She portrayed Father as being uninvolved in the children's lives, citing his absence from prior medical appointments, allegedly sporadic attendance at daughter's tumbling classes and son's basketball practices, and purported failure to take advantage of opportunities to FaceTime with them. Despite those allegations, Mother claimed the children had "a great relationship with their dad," which, in her view, was a good reason to maintain the status quo.
Mother opined that a "sudden 50/50 visitation plan" would negatively disrupt the children's daily routine "as far as school work, homework, assignments, sports, meals, bed times, baths, [and] extracurricular activities." However, she acknowledged the frequency of exchanges under the current visitation schedule was both confusing and stressful for the children, especially their son. Father had provided similar testimony, explaining "it's not that the kids specifically do not want to go back to their mom's house, it's just they're comfortable where they are at the moment and they're comfortable with being there, sometimes they just don't like going back and forth three times in one week .... [¶] ... [¶] [I]t's not that they do not want to go, they just don't want to leave the other parent, and it's happened both with—on both sides of the drop-offs."
On April 25, 2017, at the conclusion of Mother's testimony, the trial court issued an order granting each party the right to have routine telephone contact with the children. Under its terms, the custodial parent is obligated, upon the noncustodial parent's request, to facilitate a nightly phone call or FaceTime session with the children. The parties were further ordered to complete their coparenting sessions, which had been put on hold because of Mother's pregnancy.
On May 5, 2017, the proceedings resumed with expert witness testimony. Clinical psychologist Richard Engeln, Ph.D., testified on behalf of Father. Dr. Engeln had conducted a psychological evaluation of Father in January 2017, but his testimony focused on prevailing scholarly views about child custody and visitation arrangements.
According to Dr. Engeln,
"There are two views on child custody theories. One has been the tender years model, an older model, and that basically [says] the children should be primarily with mother and have a stable residence, a stable place, and that the father's role would be basically a support role with infrequent contact on an every other week kind of basis. [¶] Over the years to the current perspective, the presumptive plan now, unless there's some reason that would intrude on that[,] it would be a balanced plan where parents have generally approaching equal opportunity to be with the children, and then the children have equal experience with each of their parents. This is based on the general view that the most destructive effect of divorce has been the fear of loss, abandonment, fear of rejection from one of the parents, a loss and a feeling of—of unloved rejection."
Having reviewed Lynn Pearson's mediation report, Dr. Engeln was of the opinion that "she seemed to be reticent to move beyond the tender years concept ...." When asked in general terms about the appropriate age for implementing "an equal or balanced" visitation plan, Dr. Engeln answered, "Certainly by five or six." On cross-examination, he agreed that "[g]radual change is always better for child development than sudden changes." On redirect, he testified having "short frequent exchanges" of physical custody is the best way to transition to a 50/50 visitation plan. In response to direct questioning from the trial court, Dr. Engeln opined an alternating seven-day visitation schedule is too long a period of separation from either parent for children ages five to seven years old.
Clinical psychologist Michael D. Zimmerman, Ph.D., testified as Mother's rebuttal expert. Although called to critique the methodology of Dr. Engeln's January 2017 evaluation of Father, the salient portion of Dr. Zimmerman's testimony was given in response to questioning by the trial court. He indicated it is generally in the best interest of a child to have as much contact as possible with each parent: "[T]he more contact, the better, the more—the more it can be like a normal family situation. But that's very much dependent on the players. So the more appropriate contact, the better."
Dr. Zimmerman testified the amount of conflict between the parents is a primary indicator of a child's likelihood of adjusting to the divorce. "The higher the conflict, the poorer the adjustment." The trial court inquired about the connection between parental conflict and exchanges of physical custody, and Dr. Zimmerman replied, "I would think the higher the conflict, the less changes you want. The fewer changes you would want." Dr. Zimmerman also concurred with the trial court's reasoning "that the more exchanges you have in a given period of time would be equating to a lack of stability." Finally, with regard to the suitability of an alternating weekly visitation schedule, the expert said,
"There's no research that indicates what would be best .... [W]ould it be best to do a full week on, a full week off? Would it be best to have disruptions in the middle? There's really no research that I can conjure up in my head that would support an opinion on that."
At the conclusion of the May 5, 2017, proceedings, the trial court ruled as follows:
"[T]he Court finds that both parties are fine and responsible parents who care for their children. Both have suitable and stable homes within which to raise the children. Both have families locally who can and do support and provide good support systems for them. [¶] ... [¶] [Father] has made substantial progress towards addressing the issues that were the subject of the hearing when I first came on this case[,] attending counseling as ordered. [¶] Both parties still have difficulty regarding communicating with the other. Of some concern is [their son], who is having some emotional difficulties with the exchanges. [¶] [Having considered the expert witness testimony], I'm persuaded ... that the frequency of
exchanges should be minimized due to communication issues, stability issues. [¶] [I am also persuaded that] split visitation is not something that can or should be jumped into, that it has to be phased in ...."
Based on the above findings, the trial court issued two orders. First, it ordered the visitation schedule be modified pursuant to Ms. Pearson's recommendation of weekly Wednesday-to-Thursday overnight visits, but rejected her proposal to shorten the duration of Father's visits. Second, it ordered "that by the start of school [i.e., August 2017] the parties are to have in place a 50/50 shared visitation schedule." The parties were given three weeks to meet, confer, and agree upon a transition plan, or else have the court establish the terms of such a plan for them. All prior orders not in conflict with these rulings were to remain in effect, meaning Father's request to have the firearms restriction lifted was denied.
In subsequent briefing, the parties informed the trial court of their inability to agree to a new visitation arrangement. Mother proposed that a "2-2-3" plan begin on July 3, 2017. Father's brief contained the following statement regarding his original request for alternating weekly visitation, i.e., a 7-7 plan: "This plan would be ideal and the preferred plan ... as it is the simplest plan with the least amount of exchanges for the parties; however, in taking into consideration all of the opinions asserted by the experts in the case ..., this plan would not be in the best interests of the Children based on their current ages seven (7) and five (5) years." His concession was followed by a proposal for the same "2-2-5-5" plan he had outlined at trial, to commence July 10, 2017.
On May 26, 2017, the parties reconvened for yet another hearing due to their impasse in negotiations. The hearing began with the trial court ruling as follows: "When school starts, it's going to be week on, week off. The exchange is going to be on Friday. The person that has the children that week will drop them off at school, and the person who is receiving custody for the next week will pick them up on that Friday." Mother's attempt to argue for a "2-2-3" plan was cut short by the judge:
"That's not going to happen for a number of reasons. One, I have testimony from witnesses that at least one of the children has anxiety issues
with each exchange. It's not related to from where and to where they are going, it's just that they have anxiety issues with just the constant change. To address that issue and to keep this as simple [as] possible, we're not going to do two of[f] two on three on. It's just way too complicated and that child does not need to be subjected to multiple exchanges each and every week."
Mother's counsel protested that a seven-day period of separation from either parent was too long. The trial court regarded the concern as "outdated by the fact that there is an order that on every night they can have ... video calls with the other parent." The parties were given another opportunity to meet and confer about a transition plan for the summer, and they finally agreed to a "week on, week off" schedule with alternating overnight visits every Wednesday beginning June 30, 2017, and continuing until August 4, 2017.
On June 22, 2017, the trial court issued the written order from which Mother's appeal is taken. The order states:
"Commencing Friday, June 30, 2017, through August 4, 2017, the parties shall share parenting time of their minor children with alternating weeks and an overnight visit for the non-custodial parent on Wednesdays from 12:00 noon to Thursday at 12:00 noon, excepting Wednesday, July 5, 2017, and Wednesday, July 26, 2017, for the parties' respective vacations.... [¶] Commencing Friday, August 4, 2017, and thereafter, the parties shall share parenting time of their minor children with alternating weeks. ... In the event school is not in session on any particular Friday, the exchange shall occur [at a specified public location]."
Mother's notice of appeal was filed on June 27, 2017. The next day, she filed the first of three petitions for writ of supersedeas to stay enforcement of the June 22, 2017, order, all of which were denied. A series of temporary stays issued pending resolution of the writ petitions, and the last one was vacated and dissolved on March 22, 2018. Since that time, the parties have been following the alternating weekly visitation schedule.
DISCUSSION
Standard of Review
"The standard of appellate review of custody and visitation orders is the deferential abuse of discretion test. [Citation.] The precise measure is whether the trial court could have reasonably concluded that the order in question advanced the 'best interest' of the child." (In re Marriage of Burgess (1996) 13 Cal.4th 25, 32.) Stability, continuity, and the existence of loving relationships are critical factors to be weighed in the "best interest" analysis. (Id. at pp. 32-33; Burchard v. Garay (1986) 42 Cal.3d 531, 538, 541-542.) Other 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." (Montenegro v. Diaz (2001) 26 Cal.4th 249, 255, citing § 3011.)
"'"The appropriate test for abuse of discretion is whether the trial court exceeded the bounds of reason. When two or more inferences can reasonably be deduced from the facts, the reviewing court has no authority to substitute its decision for that of the trial court."'" (In re Stephanie M. (1994) 7 Cal.4th 295, 318-319.) We may not reverse the challenged order unless the trial court's decision can be characterized as "'"arbitrary, capricious, or patently absurd."'" (Id. at p. 318.)
Issues and Analysis
Mother's position is best summarized in the introduction to her opening brief: "A trial judge should not be permitted to make an order that all the parties, experts and counselors agree would not be in the best interest of the children and without even evaluating how the children and parents are doing." Her briefs remind us, no less than 12 times, of Father's concession below that an alternating seven-day visitation schedule would not serve the children's best interests. The subtext is that trial judges in family law cases are constrained by any consensus views of the parties and/or their experts, which is simply not true.
"The trier of fact is the sole arbiter" of the weight and interpretation of the evidence, and "is not required to accept the opinion testimony of any witness ...." (South Bay Irr. Dist. v. California-American Water Co. (1976) 61 Cal.App.3d 944, 965.) In limited circumstances, such as where an issue embraces a medical process or procedure that is beyond common knowledge, the trier of fact is bound by an expert's testimony. (Curtis v. Santa Clara Valley Medical Center (2003) 110 Cal.App.4th 796, 802.) As a general rule, however, the trier of fact may reject even the uncontradicted testimony of a witness, so long as the rejection is not arbitrary. (Foreman & Clark Corp. v. Fallon (1971) 3 Cal.3d 875, 890; Goehring v. Chapman University (2004) 121 Cal.App.4th 353, 368; Howard v. Owens Corning (1999) 72 Cal.App.4th 621, 633.) "This rule is applied equally to expert witnesses." (Fallon, supra, 3 Cal.3d at p. 890.)
With the above principles in mind, we turn to four questions raised in this appeal: (1) Did the trial court abuse its discretion by granting Father's request for equal visitation rights? (2) Did the trial court abuse its discretion by ordering an alternating seven-day visitation schedule? (3) Did the trial court err by omitting from its order provisions for reevaluation of the visitation schedule? and (4) Did the trial court err by admitting a hearsay statement during the testimony of Dr. Engeln?
I. 50/50 Visitation
Mother seeks reversal of the June 22, 2017, order "with instructions that the [trial] court adopt the recommendations of the court appointed counselor," i.e., Lynn Pearson. By implication, she argues the trial court abused its discretion by granting Father equal visitation rights regardless of any schedule under which such rights are effectuated. The argument is not persuasive.
As discussed, Ms. Pearson recommended Father have visitation time from Friday afternoon to Monday morning "on the 1st, 3rd, and 5th," weekend of every month, plus weekly Wednesday-to-Thursday overnight visits and "up to two weeks' non-consecutive vacation" per year. Under Father's proposed plan, Mother would have the children every Monday and Tuesday, he would have them every Wednesday and Thursday, and visitation on Friday through Sunday would alternate each week. For practical purposes, the difference between Ms. Pearson's recommendation and Father's request for equal visitation was the allowance of four Thursday-to-Friday overnight visits each month.
In the words of the trial court, "mathematically what [Ms. Pearson] has recommended comes pretty darn close to 50/50." Mother's attorney made a similar observation at the May 26, 2017, hearing:
"With regard to this transitional phase, my understanding is after the hearing on May 5th, [Father] then was awarded an additional every Wednesday night for 24 hours, Wednesday at 5:00 until Thursday at 5:00, and in looking at what could be transitional from first, third, and fifth weekends and that day to 50/50, there's not a whole lot of room to transition .... If you give him another day during the week, and first, third, and fifth weekends, that technically could be almost more than 50 percent."
Given the relatively marginal difference between Ms. Pearson's recommendation and the granting of equal visitation rights, we cannot say the trial court exceeded the bounds of reason by ordering the latter.
II. Alternating Weekly Visitation
When the June 22, 2017, order issued, the parties' children were seven years old (son) and five years old (daughter), respectively. Had the alternating seven-day schedule gone into effect on August 4, 2017, as ordered, the daughter would have by then reached the age of six. According to the mediators, Ms. Abbott and Ms. Pearson, both of whom cited the "Adler" guidelines, alternating weekly visitation is a potentially viable and appropriate plan for children ages six, seven, and older. The trial court, in eliciting opinions from Dr. Zimmerman, posed hypothetical questions about custody and visitation arrangements for children in the age range of five to eight years. The trial court thus gave due consideration to the children's ages and had reasonable grounds to consider using a week-to-week plan to implement Father's equal visitation rights.
Mother claims Ms. Pearson "testified that modifying custody to a seven days on/off arrangement would be a 'traumatic change' for the children." This assertion, which is repeated multiple times in slightly different ways, does not accurately reflect the witness's testimony. The "traumatic change" language was used by Mother's counsel in reference to a theoretically sudden change from Father's then-existing schedule of every other weekend and two Wednesdays per month to an alternating seven-day plan. Ms. Pearson responded affirmatively when asked, "[I]s it your testimony that if you took an every other weekend schedule and flipped it to 50/50 overnight, that would be a traumatic change for the kids?" Counsel later inquired, "And in your opinion would it be in the best interest of a five and a six year old who have had one primary care parent for the last several years to immediately go to a 50/50 schedule?" (Italics added.) Ms. Pearson replied, "No [¶] ... [¶] ... that could be traumatizing for a child." (Italics added.)
Consistent with Ms. Pearson's "traumatic change" testimony, the trial court found that "split visitation is not something that can or should be jumped into, ... it has to be phased in." Accordingly, the court's rulings contemplated a three-month transition period. On May 5, 2017, Father's visitation schedule was ordered modified to add two additional Wednesday-to-Thursday overnight visits per month. In the meantime, the parties had three weeks to develop a "one or two step[]" transition plan to move toward 50/50 visitation by the start of the new school year. On May 26, 2017, after being informed of the eventual seven-day visitation arrangement, Mother and Father finally agreed to an interim schedule. It was the parties, not the trial court, who devised a single-step transition plan for the period of June 30, 2017 through August 4, 2017.
The trial court's decision to order alternating weekly visitation was at odds with the opinion testimony of Dr. Engeln, who believed it could take six to nine months of incremental changes to arrive at a "balanced plan." Dr. Engeln unequivocally opined that a seven-day period of separation from either parent is too long for any child in the age range of five to seven years. We note his opinion actually conflicted with Ms. Pearson's testimony about the "Adler" guidelines. Incidentally, as she explained during the evidentiary hearing, Ms. Pearson's plan would have allowed up to four 7-day periods of separation in summer 2017 under its provision for two weeks' vacation time per parent, per year.
The trial court weighed the witnesses' testimony, preferences, and recommendations against factors such as the parents' residual interpersonal conflict and the children's struggles with frequent back-and-forth visitation. There was ample evidence to support both concerns. Some of the most compelling testimony on the latter point was given by Mother, who claimed their son got upset and cried in advance of "every visit" with Father because "he doesn't like change and ... has a hard time with it, especially exchanging, going from one place to another."
Further support for the challenged order is found in the testimony of Dr. Zimmerman, wherein he noted the potential benefits of equal contact with both parents, agreed that in some circumstances fewer exchanges can promote stability, and denied being aware of any research suggesting an alternating seven-day visitation schedule is categorically inappropriate or less suitable for children in the age range of the parties' children. Likewise, Dr. Engeln testified that nightly communication with the noncustodial parent "can be one way to mitigate the separation effect" during alternating visitation periods, which adds significance to the trial court's order regarding nightly telephone calls and/or FaceTime sessions.
In light of all the facts and circumstances, we perceive no arbitrariness or irrationality in the trial court's decision. Reasonable minds may differ on the question of whether the trial court's visitation schedule will advance the best interests of the parties' children. Therefore, no abuse of discretion has been shown. (In re Stephanie M., supra, 7 Cal.4th at pp. 318-319; Ali v. U.S.A. Cab Ltd. (2009) 176 Cal.App.4th 1333, 1351-1352 ["'A record presenting facts on which reasonable minds may differ is not a record establishing an abuse of discretion'"]; People v. Johnson (1974) 38 Cal.App.3d 228, 248 ["The area of discretion is that in which reasonable minds might differ"].)
III. Failure to Schedule Further Proceedings
Mother complains of the trial court's failure to include in its order provisions to "specifically evaluate how the children and parents are doing after each visitation modification." As best we understand it, she is alleging error in light of certain expert witness testimony and a statement made by her attorney during closing argument.
Dr. Engeln was asked the following question about gradual increases in visitation: "[Do you] agree that you would want to of course see how the children are doing" after each change? He replied, "Yes, there needs to be some kind of a external evaluator." The rebuttal expert, Dr. Zimmerman, gave similar testimony: "I would want to try different things and keep in close touch with the parents and the kids about how that's working out, particularly for the kids. But there's no research that says one week on would be best or a couple days in the middle would be best." In closing argument, while urging the trial court to adopt Ms. Pearson's visitation plan, Mother's counsel said, "The best approach is to take a common sense mediator's report, which is an increase in time for dad, and then set this out for an additional mediation to see how the kids are doing in X number of months."
Mother cites no legal authority suggesting the trial court had a duty to include in the challenged order a provision for future mediations or other proceedings to evaluate the soundness of its decision in hindsight. The trial court does have, of course, "residual and broad discretion to modify visitation orders." (In re Marriage of Lucio (2008) 161 Cal.App.4th 1068, 1078.) As of June 2017, the trial judge had presided over the seemingly endless litigation in this matter for at least three years. The parties had by then demonstrated that neither of them would hesitate to seek further modification of the visitation schedule if they believed there was good cause (or at least ostensible grounds) for doing so. As with the related claims, we discern no abuse of discretion or other grounds for reversal.
IV. Admission of Hearsay
The final issue concerns the admission of hearsay during Dr. Engeln's testimony and the California Supreme Court's holding in People v. Sanchez (2016) 63 Cal.4th 665 (Sanchez). As we explain, Mother's reliance on Sanchez is misplaced.
While testifying to the basis for his opinions, Dr. Engeln claimed to have spoken with "the Director of Family Court Services" for a court in a neighboring jurisdiction. Mother's counsel made a hearsay objection and the trial court, upon further colloquy with the witness, ruled the testimony was admissible "for the non-hearsay purpose of establishing how he arrived at his opinions." Dr. Engeln continued:
"She is very strong in the child's right to equal access, equal contact with both the parents, and states that that's the presumed solution to custody disputes unless there's some reason that would detract from it. For example, the father lacks motivation, or, you know, one of the parents lacks motivation or is unavailable or not involved directly, or if there are psychological problems with one of the parents that detract from their ability to nurture." (Italics added.)
As a preliminary matter, Mother contends the above testimony "is contrary to precedent from our Supreme Court that '[t]he Family Code specifically refrains from establishing a preference or presumption in favor of any arrangement for custody and visitation.' ([In re] Marriage of Burgess, supra, 13 Cal.4th at p. 34.)" The quoted authority refers to the absence of a legal presumption, and Dr. Engeln did not attempt to persuade the trial court otherwise. His testimony concerned a supposed majority view held by practitioners in his field, and it was not excludable for being in conflict with the Family Code, i.e., section 3040, subdivision (c).
Citing Sanchez, Mother also argues "that an expert cannot testify about case-specific facts if the expert has no personal knowledge of the facts and no hearsay exception applies." This is an accurate summary of the law, but Dr. Engeln made clear that he did have personal knowledge of the declarant's beliefs with regard to "the presumed solution to custody disputes." Moreover, the hearsay did not relate "case-specific facts" as contemplated by Sanchez.
The Sanchez opinion "does not call into question the propriety of an expert's testimony concerning background information regarding his knowledge and expertise and premises generally accepted in his field. Indeed, an expert's background knowledge and experience is what distinguishes him from a lay witness, and ... testimony relating such background information has never been subject to exclusion as hearsay, even though offered for its truth." (Sanchez, supra, 63 Cal.4th at p. 685.) Furthermore, the case expressly "does not affect the traditional latitude granted to experts to describe background information and knowledge in the area of his expertise. [Rather, it] restores the traditional distinction between an expert's testimony regarding background information and case-specific facts." (Ibid.)
"Case-specific facts are those relating to the particular events and participants alleged to have been involved in the case being tried." (Sanchez, supra, 63 Cal.4th at p. 676.) Here, the hearsay declarant had no apparent connection to the parties or events in question, and the hearsay statement did not specifically relate to Mother, Father, or their children. We therefore reject the assertion of error.
DISPOSITION
The trial court's June 22, 2017, custody and visitation order is affirmed. Respondent shall recover his costs on appeal, including all costs associated with appellant's three petitions for writ of supersedeas.
/s/_________
PEÑA, J. WE CONCUR: /s/_________
POOCHIGIAN, Acting P.J. /s/_________
SMITH, J.