Opinion
NOT TO BE PUBLISHED
Sonoma County Super. Ct. No. SPR77974
Pollak, J.
When the mother of twin boys (the boys), now age 15, died unexpectedly in December 2005, their mother's sister (aunt) petitioned to be appointed guardian of the boys. The aunt and her mother (grandmother) lived near each other while the boys’ mother was alive and they participated actively in the boys’ daily lives. The boys’ father, with whom the boys had never lived and saw only on limited visits, objected to the guardianship petition. The trial court denied the petition, stating, “I think I have to go with following the preference under the law—that custody should be with the parent that’s still here.” In determining this sensitive issue, the trial court applied the wrong standard, disregarding uncontradicted evidence that the consequences would be detrimental to the youths. The matter must be remanded for reconsideration under the correct legal standard.
Background
The boys were born in 1992, and from birth lived with their mother. Before the boys’ birth, father married another woman but maintained contact with his sons to an extent described more fully below.
On January 17, 2006, aunt filed a petition to be appointed guardian of the persons of the boys. The petition alleges that “Minors’ mother died 2 weeks ago. Minors had been living with their mother and have also been cared for by petitioner and the maternal grandmother. They have not enjoyed a close relationship with their father during the course of their lives. Father is threatening to take these children away because he no longer wants to pay child support. Petitioner feels it would be detrimental to these children’s emotional and physical well being to be taken from the only home they have ever known. Further, the minors have expressed their grief over their mother and their fear about being removed from their home.” A declaration from aunt stated, “My sister and I were very close. I was there when the boys were born and saw them at least 3-4 times a week. For the last three years, my mother and I have watched the boys before and after school while [mother] worked. [¶] I love [the boys] so much and I just want what’s best for them. We are a very close family and they have said they do not want to leave my mother and I nor their friends. [¶] Their father . . . loves them also, but had only seen the boys 3-5 times a year for a few hours or overnight. [¶] I have been their cheerleader at basketball games, taken them fishing, camping and play basketball with them at my home. . . . I want to continue to help them grow into . . . the wonderful young men they already are.”
Aunt did not petition for guardianship of the boys’ estate.
One of the boys submitted a declaration stating, “I . . . would prefer to stay with my aunt . . . [as] opposed to staying with my father . . . . The reason for this is because I know this is what my mother would have wanted. She was very close to my aunt and we saw her almost every day. When my mom went to work my aunt would let us stay at her house and if she could, she’d also take us to school. I know she loves my brother and me very much, and I think us staying with her is the right thing to do.” The other boy submitted a declaration stating, “I . . . would like to live with my aunt . . . until I come of age. I would like to stay because my mother really wanted us to go to school at Cardinal Newman [High School]. I also want to be around my friends during this time and I feel that it would be difficult to make new ones. I love my Dad but I just can’t handle moving away from the things I love at this difficult time.”
Grandmother submitted a declaration that repeated aunt’s assertions that she had always been present in the boys’ lives, and had gone to their athletic events and taken them on vacations. Grandmother stated that aunt “has been both disciplinarian and benefactor to the boys, and [mother] assumed if anything ever happened to her, [aunt] or I, would raise the boys knowing we would love and care for the boys as she (their mother) would. The boys were at our home four to five days of the week, and knew if they had any concerns or needs they would be attended to. Removing these young men from an environment they know and love at a time when they have lost their mother and are now in danger of being removed from the only family they have know[n] would be detrimental to their adjustment and healing. [¶] During their thirteen and a half years of life, [father’s] efforts to see them and be a part of their lives has amounted to four or five times a year for approximately one or two days at a time. These boys have no desire to live with a family they do not know. It was always my daughter’s wish that the boys remain with her and her family. [¶] My desire is not to say disparaging words regarding their father, because I believe he loves them. [Father] says taking the boys to his home is ‘the right thing to do’; but if he listened to the children and listened with his heart, he would not take them from the people they know and love. [¶] I feel their interest would best be served remaining close to the people and home they feel safe and comfortable with.”
Another sister of mother also filed a declaration reiterating that aunt had been an active and integral part of the boys’ lives “so much so that she could easily be considered a surrogate parent to these children (and I believe they regard her as such). The same could be said for our mother, the boys’ grandmother . . . who currently resides next door to [aunt], and would also be involved in the future upbringing of the children.” She stated that during their elementary school years, aunt “provided a safe and stable environment each day in her home for the boys to spend their time both before and after school. . . . In contrast, . . . outside of payment of child support, the boys’ father has only been sporadically involved in their care and upbringing throughout their lives. Once, when I had inquired about the boys’ relationship with their father, [mother] had commented that he had only seen them once or twice in the past year. . . . [¶] I know that [the boys] have had a difficult time when visiting with their father in the past. It is my understanding that they were treated as outsiders, and not included as full-fledged members of the family. The children would often be upset at the prospect of spending the night at their father’s home, and would return to their mother’s home complaining of being poorly treated and ignored, particularly by their stepmother. After the passing of their mother, both children clearly stated that they would prefer to remain in the custody of their aunt and grandmother beyond the remainder of the current school year, rather than live with their father and stepmother. . . . [F]ather currently resides approximately 90 minutes away from the boys’ hometown. A move to live with their father would result in significant losses with respect to being able to spend time with the family members they know most, as well as the friends they have made in school and through their church. Given the significant and devastating loss of their mother, I believe that adding to this loss by requiring the boys to live with their father against their will would be highly detrimental to their overall emotional and psychological well-being.” She also stated that prior to mother’s death, she and the boys had planned for them to enroll in Cardinal Newman High School, and that “[t]he boys were agreeable to this plan, and were seemingly excited at the prospect of continuing in school with some of their current friends and classmates.”
Father filed an objection to the proposed guardianship. In his accompanying declaration he stated, “There is no basis for appointment of guardian as minors’ father is alive and well and able as well as willing to care for his children. Objector has always supported his children both financially and emotionally. He worked closely with minors’ now deceased mother in raising the children up to be the fine young gentlemen that they are. He has always been involved in all aspects of his children’s upbringing to the fullest extent. Objector is married to a wonderful loving woman who loves minors like her own . . . . Objector contends that he is in a position to provide the children with a safe, permanent, stable and loving environment. [¶] Contrary to petitioner’s allegation that objector is threatening to take minors away because he does not want to pay child support, objector contends that he has never had a discussion with petitioner or anyone else for that matter to that effect. At this harrowing time in minors’ lives thoughts regarding cutting off child support are the least of objector’s considerations. . . . [¶] Objector contends that contrary to petitioner’s contention that minors have not enjoyed a good relationship with their father, objector has a wonderful relationship with his sons. While their mother was alive, objector would see minors at every opportunity he got. He would go over to mother’s to baby-sit and get the children ready for school before going to work. He would also take the children out to various places of interest. When minors’ mother moved from Mill Valley to Santa Rosa (a 90-minute drive from objector’s home, it was no longer feasible for applicant to do these things as often as he used to. More so, minors were getting older and more independent and wanting to do their own thing. Some times a pre-planned visit with objector would clash with school activities or other activities minors wished to engage in with friends. On such occasions, the visit with objector would be deferred to a more convenient time. [Nonetheless], objector continued to make every effort to be closely involved in his children’s lives.” Father expressed the desire to move the boys to Antioch at the end of the school year to live with him and attend a private Baptist school there. He stated that he “is able and willing to provide the nurturing environment minors need to thrive. He has no interest in tampering with minors’ relationship with their aunt and grandmother. Objector simply wants to do what is in the best interest of his children.”
Aunt testified at trial. She stated, “I’m petitioning for guardianship of my nephews because they’ve asked me to, and for the following reasons: My nephews have been devastated ever since their father said he wanted to keep them. My nephews saw and spoke to their father a couple of times a year before my sister’s passing. In the past, my nephews complained of being ignored and treated as outsiders in the care of [father] and his wife. [Father’s] wife has repeatedly hung up on my nephews when they’ve tried to call their father. . . . [¶] Since the passing of my sister . . . [father] calls regularly and the wife treats my nephews kindly. My nephews have gone several times to grief counseling with [a few counselors]. Each counselor stated that my nephews spoke more about their fears of living with their father than the loss of their mother. [¶] . . . [¶] . . . I have been an active part of my nephews’ lives from day one. In the last two years, I have provided a safe and stable environment in my home for them, before and after school, while their mother was working. I shopped and provided healthy breakfast, lunch and snacks for them. Many nights the boys and my sister would stay for dinner, and sometimes we would have family game night. I have assisted with homework, attend plays and my nephews’ sport events. I have taught them to fish, camp, bake, farm, and garden. I have always been there for my nephews and would love to continue, if they want me to.”
Aunt testified that the boys had been accepted into one of the top 50 Catholic schools in the nation, which the boys and their mother had “worked so hard” to get into. She stated, “As temporary guardian, I have made every effort for [father] to see his sons, without disrupting their academic or social commitments. I notified [father] of basketball games, plays, and when the boys had ski week vacations. [Father] continually brought the boys back late, and even a day later than he said he would, knowing that they had homework projects to complete. Each time, the boys and I would stay up late, or get up early, to complete assignments because their father had not checked that the assignment was done, or done correctly.” She estimated that the boys had visited father approximately eight times in the four or five years before mother died. The boys spent “almost all” holidays with mother, aunt, and grandmother. She stated, “My sister had lots of things she didn’t like to do like camping, or gardening, or baseball, or any of the sports. I would be . . . quote unquote, dad, who would teach them all those kinds of things.” Since mother’s death, aunt said that her relationship with the boys had “grown stronger, and they trust me, and they feel safe with me.” She or grandmother takes the boys to medical appointments, to the grief counselor, and to “parties and dentists and library, bookstore.” She does homework with the boys.
Father testified that he and mother had never planned to marry, and that her pregnancy with the boys was unplanned. He is Nigerian and at the time mother became pregnant was already in a “traditional marriage” with another woman, which he described as akin to an American “common-law marriage, but it’s through introduction of the family.” He stated that mother was aware of this arrangement, and that she was angry when she found out about it. When they discovered that mother was pregnant, “[i]nitially, there wasn’t a plan to keep the pregnancy.” That plan changed, however, when they discovered that mother was pregnant with twins. “I felt very happy, because in my culture twins are considered something very significant.” Father attended “all of the required” prenatal classes with mother. The boys were born in May 1992, and father was present at the birth. He “was full of joy” when they were born. He spent time with them immediately after the birth in mother’s home, feeding and holding them. Father’s wife was aware of the birth and visited the boys approximately two weeks after they were born.
When the boys were approximately one month old, they spent a weekend with father and his wife. When they were still newborns, father would go to mother’s house “two, three nights a week to help with taking care of them, helping [mother], because [he knew] that . . . caring for one child—it’s a lot of work, and the fact of two made it even harder.” This changed when mother and the boys moved to Santa Rosa in mid-2001 and father later moved to Antioch. When they were still living in Mill Valley, father “attended school plays [and] picked them up at school in the evening, sometimes when [mother] had to work late.” The boys would visit approximately once a month during this period, “but most of the time when they were little I would be the one to go there and help them with their homework, feed them, bathe them. Sometimes when [mother] was working late, I would put them to sleep.”
Father and his wife have one daughter together who was 11 years old at the time of trial. Father believes that the boys have a good relationship with their half-sister, though sometimes “they would have little spats” as children “tend to do.” When the boys were born, mother and father agreed that father “would buy food, diaper[s], and contribute $300 a month in cash,” which father testified that he did. Sometime in 1999, mother asked for more money, but father refused. Mother sued and was awarded approximately $900 monthly in child support. Father estimated that since 2001 when mother moved to Santa Rosa and he moved to Antioch he had seen the boys “at least once a month and sometimes more.” Between 2002 and 2005, father communicated with the boys on the telephone, stating, “If I don’t call at least within two weeks, they’ll call me . . . .” He testified that in 2002, the boys visited him overnight at his house “at least five times,” and that he visited them in Santa Rosa “at least seven or eight times.” In 2003, he estimated that he had seen the boys approximately the same number of times, “even maybe more so.” In 2004, he estimated that the boys visited him “four or five times,” and that he visited them “maybe another five times” because for “part of 2004 [he] traveled to Nigeria for about eight weeks.” In 2005 he believed that the boys had visited him “about five or six times,” and that he had visited them “at least maybe another seven or eight times.” From 2002 to 2005, the longest period during which he did not see the boys was “[m]ay be two months” during trips to Nigeria in 2004. However, he admitted that in the child support proceedings the court had made a finding that he had “zero percent time-share” in 2000, though he disputed the accuracy of the finding. A visitation order made by the same court indicated that father was to “be present at all times during visits with [the boys]” and that he was “not permitted to leave them in the care of anyone else, including [his] wife.”
Prior to mother’s death, he never spent more than a weekend with the boys, nor had he ever requested to spend a longer period of time with them. He explained that before mother died, “I have absolute confidence in her [that] the boys would be well taken care of, and they were being taken care of. So any other arrangement, in terms of their care, I didn’t have to worry because I knew that they were in good hands. On their vacation period, they have activities to do. But since their mother’s passing, I feel that it is my responsibility to see that they’re well taken care of.”
When asked what concerns he had regarding their care by aunt, he replied, “I feel that being their natural—the remaining natural parent, that I’m in the best position to take care of them, yes. [¶] . . . [¶] I just feel that she—based on some of the things that she has said to me, and done, that she will undermine my relationship with the boys.” When asked again whether he had specific concerns about their care, he clarified, “I don’t have any concerns. I mean, they can pretty much take care of themselves. They’re not a baby [sic] anymore, so it’s not about their care. [¶] . . . [¶] It’s about the fact that I’m their sole remaining biological parent, and it is my responsibility to take on their rearing after their mother’s passing.” When asked if he felt “the boys, under [aunt’s] care, are not having their educational needs seen to?” he answered, “I think as their biological father, it’s my responsibility, which responsibility I’m willing and able to do.” Father testified that the boys’ relationship with his wife “was good, [that] she would care for them, take them shopping, feed them, yes.”
In discussing custody after mother’s death, the boys had told father that they wished to remain in Santa Rosa with their friends. Immediately following mother’s death, father, aunt and grandmother discussed custody of the boys. Father stated, “I was adamant about what I would like, and that I love my sons and I would like to raise them. And everybody cried, and that was the end of that conversation.” On July 13, 2006, the court mediator told father that he should “speak to the grievance counselor . . . to know more about [his] children to find out how they’re doing, how they’re progressing,” but as of the trial in October 2006, father had not done so.
The boys did not testify. The trial court stated that since the boys were 14 years old at the time of the trial, “I really don’t want to put them in a position where they’re in court with dad and their aunt and grandma. I’d rather interview them in chambers. . . . If everyone agrees I can do that part today, that way they don’t miss class. I’m going to talk to them a little bit. If it’s agreeable, do it in session, without the reporter, obviously.” He continued, “What I typically do, just to give you an idea, not having done family-type stuff in awhile, interview the kids in chambers for awhile—what I typically like to do is make sure they understand I’m the person that has to make the decision. They’re not making the decision. They don’t feel like they, you know, are speaking for or against a parent, or their aunt, or whatever. I’ll just make some idle chitchat with them, see what their views are without going psycho.” Counsel for the boys and counsel for father agreed to this arrangement, but no response to the proposal was given by aunt.
The trial court reported to the parties that “the court did meet yesterday afternoon with both [boys], and chatted with them, briefly, in chambers. Not a whole—didn’t really discuss a whole lot, other than I asked them how school was, what’s going on, that sort of thing. They did indicate they were happy with their current situation and were happy with Cardinal Newman—starting school, looking forward to playing basketball, when that starts, that kind of stuff. Had a good team in eighth grade, or seventh grade. Sounded like their team didn’t win a game, but they pulled themselves up by the bootstraps at Willowside—came in second place last year, which was really good. So that’s about it. Didn’t go into a whole lot with them, other than give them candy. Screwed up their diet and teeth.”
The probate court investigator who prepared a report on the guardianship petition testified. She interviewed the boys, and another evaluator visited the boys’ home. The evaluator’s notes on the home visit were incorporated verbatim into the court investigator’s report. The investigator was not asked to render an opinion about the appropriate outcome of the guardianship petition and did not do so. Her report stated that the boys “are staunchly in favor of petitioner being appointed as their guardian over the objections of father.” One of the boys states that “he ‘knows’ that having his aunt act as his guardian is what his deceased mother would have wanted to happen. He indicates that he has a close relationship with his aunt, and that much of his after school time was spent in her home while his mother was at work. [He continued], ‘I know she (the petitioner) loves my brother and me very much and I think staying with her is the right thing to do.’ [¶] [The other boy] states that he would ‘like to live with my aunt . . . until I come of age.’ He too states that he believes this was his deceased mother’s wishes, and that she especially wanted both of the boys to attend Cardinal Newman High School. [He] also states that he loves his father but that he ‘just can’t handle moving away from the things I love at this difficult time.’ [¶] Both of the minors have indicated a desire to address the court on the record with their wishes.”
The report includes information provided by grandmother that aunt “has been involved in the minors’ lives since birth . . . . She states that the mother often called the petitioner the minors’ ‘second mother.’ [¶] Maternal grandmother indicates in her statement that the petitioner has loved, nurtured and supported the minors, attended sports events, taking them on vacations, helping with school work, and taking them to medical and dental appointments. [¶] Maternal grandmother also states that although the father’s previous involvement with the minors was sporadic, and amounted to four or five visits a year, she believes he loves his children. She only wishes that he would ‘listen to the children with his heart’ as she believes he would not ‘take them from the people they know and love.’ ”
Another maternal aunt told the investigator that “she believes that it is in the best interest of the minors to remain in the custody of the petitioner, especially after they have ‘tragically’ lost their mother, and that it would be ‘detrimental to their physical and psychological well being to remove them from all they know and love.’ ” This aunt also reported that “the minors do not feel comfortable in their father’s home, that they have a close relationship with family members and friends in Sonoma County that would be lost, and that plans to have the minors attend Cardinal Newman would be thwarted.”
The investigator reported that the boys told her “that they did not want to live with the father as they do not feel comfortable in his home. They feel they are treated disrespectfully by father and his wife, stating they are left alone at father’s house, and they cannot understand why he wants them there when he doesn’t spend time with them. They related that they feel as though father’s wife favors her own child over them, and illustrated this by providing an example of a time when the father’s wife left the home to purchase food for her child, but would not bring any back for them. They stated that there is nothing to ‘do’ while there, and all of their life-long friends and activities are in Sonoma County. [¶] Both of the minors stated they do want to see their father, but they want him to come to Sonoma County like he has always done, and just spend the day with them. They do not understand why all of a sudden their father wants them as he has never spent a significant amount of time with them or shown an interest in their activities. [¶] Both minors adamantly stated that they will hire their own attorney and fight having to leave the petitioner’s home to live with their father if the court will not listen to their needs without representation.”
“None of the teachers [at the boys’ school] report any interaction with the father. . . . [¶] [The boys’ science teacher] and the principal [of the boys’ school] indicated that they have experienced a great deal of appropriate involvement from the petitioner since the death of the minors’ mother, as well as prior to that time. She has been listed as the emergency contact for the minors since their enrollment. [¶] [She] stated that the petitioner is, and has been, very involved with the minors’ science projects, that she is at most of their basketball games, and knew she was very active in having the minors admitted to Cardinal Newman.”
The investigator also spoke with the boys’ bereavement counselor who “indicated that having the boys remain in a stable environment would be supportive, and she believes it would be in their best interest to remain in the petitioner’s home and close to their grandmother who she stated is very active and important in their lives. [¶] [She] has not had any contact with the father, and he has not been mentioned by the boys except on one occasion. . . . [¶] . . . It is her hope that the parties will listen to the boys’ wants, needs and desires and allow them to remain where they feel most comfortable, and ‘at home.’ She stated, in her opinion, that would be the home of the petitioner.”
The investigator included information from the family court services evaluator. He visited the boys at aunt’s home, which he reported to be “one-half of a well-kept duplex on two acres in rural Sonoma County, six miles from the home they shared with their mother. The other half of the duplex is occupied by the boys’ maternal grandmother . . . who watches over the boys when their aunt is at work . . . .” He reported that the house was “immaculately-kept,” and that the boys keep their toys and possessions in their room “in a very organized and well-cared-for manner.” He also visited father’s home, which is “almost two hours” from aunt’s home. Father’s home was described as “an attractive, well-maintained four bedroom home in a relatively new community . . . .” The boys “greeted their stepmother and sister with polite, but unenthusiastic, hugs.” On a tour of the house, the evaluator noted that there “are four bedrooms; the larger is the parents’ and adjacent to it is their sister’s room (which they sleep in when visiting). There are two other bedrooms; one contains a computer and related equipment and the other they referred to as ‘the sewing room,’ although it was mostly empty. Nowhere in the house did it appear that the boys have any personal space delineated.”
The evaluator summarized that “While it is a selfless and loving gesture for father to offer to take the boys into his home and family, at the present time the boys are both very clear and unequivocal in their feelings that while they love their father and wish to spend regular, consistent time with him and his family, they want to continue to live in Santa Rosa with their family, their friends and their memories. The boys’ mother and father were never married and also never lived together. Until the boys’ mother died, their visits with their father were irregular and inconsistent; according to grandmother, the boys often saw their father on three or four occasions per year. Prior to mother’s death . . . they were regularly at their aunt and grandmother’s home, both after school and on the weekends. Since the mother’s demise, father has been regularly taking advantage of his visitation. The boys have friends that they go to school with who are important to them. Further, they will be graduating from 8th grade in June, and will be transitioning to high school. Cardinal Newman . . . is a private school with very high standards that their mother very much wanted them to attend. That Newman also has strong competitive teams in the sports that the boys enjoy (football and basketball) only makes it more attractive to them. . . . [¶] The boys reported that they do not feel especially comfortable at their father’s home. In the past their step-mother has been rude and abrasive to their mother on the phone and they also feel that their step-mother plays favorites of her child over them. Their father reportedly has not been very receptive to their request to not have to move; reportedly he told them that they would only get to make their own choices when they are 18; ‘because I am your father,’ was his reasoning, they said. The boys also reported that their father is often busy when they are visiting, and so they really don’t get to spend much time with him, and when he is around they don’t do much in the way of activities (they have recently begun going bowling together, however). It seems likely that the boys will wish to spend more time with their father once they feel comfortable and welcome at his home . . . . To force these boys to live in a new community with a family they are not yet comfortable with would be to potentially set up a power struggle between the boys and their father that could be very detrimental to all. Rather, it would be better that father and the boys continue to meet together regularly on their current alternate weekend schedule, with one weekend in Antioch and on the other weekend, a day visit in which father picks them up in Santa Rosa.”
In closing, counsel for the boys stated, “One duty [I have] is to represent to the court the wishes of the minor children—to be, in essence, their voice. The other duty I have is to weigh the wishes of the minors in [this] case with what I would believe, as their legal representative, would be in their best interests. Often, the two are different . . . . However, in this particular case, these 14-year-old boys’ wishes, and my representation to this court, is one and the same, and that is I do believe that they have a strong opinion about wanting to remain living with their aunt . . ., to remain living in Santa Rosa and to continue with their education at Cardinal Newman High School, which is what they had planned with their mother and want to continue on doing. . . . [T]he boys have established a very strong, loving and stable relationship here in Santa Rosa with their aunt . . ., who I would consider a parental figure in guiding them. [¶] I do believe the boys have a very loving relationship with their father as well; however, I think it has been long distance . . . and not very involved. It’s not through any fault of anybody. . . . I think that his testimony is evidence that he has not, in fact, interjected himself much into the boys’ lives since their mother’s passing, aside from visitation, in that he’s not involved himself in the collateral contact with teachers, therapists, and the like. . . . The boys have not said anything or not made any requests of me to pass along to the court to say they don’t want to have a relationship with their father. That is not their intent. They do want to have a continued relationship. They have indicated to me, and which is consistent with what they have represented to others involved in this case . . . that the boys consistently say . . . ‘I’m not sure why he wants us to come live with him, but we want to stay where we are.’ So they’ve been consistent in this. I don’t believe from the input they’ve been coached in any way, shape, or form . . . . Rather, this is their true desire. [¶] I think the case law supports a finding based on Family Code 3041 that detriment can be found by virtue of the fact of disrupting the stability of an existing relationship. . . . I believe the statutory outline of the detriment finding is met here . . . . As far as . . . the best interests of the child . . . I think that . . . this court making a finding in favor of this guardianship in no way reflects on [father’s] parenting at all. He clearly loves his boys. He clearly cares for his boys. . . . As the minors’ legal representative, I ask that this court leave them under the care of their aunt . . . I believe not only is that their wish, but it would also be in their best interests.”
On October 18, 2006, the trial court denied the guardianship petition. In a long, discursive ruling from the bench that repeatedly praised aunt and grandmother, the trial court concluded, “I just reiterate, I would find—make findings of fact, whatever you want to call it, that the boys have been, and are in, at the current time, a loving and stable environment. I think the aunt has done a good job as far as their day-to-day care and stuff since mom’s death. The arrangement that they have with the duplex living, with grandma next door, seems to be a good supportive situation. And I realize and appreciate . . . this is a new arrangement as far as living in the actual home since [mother’s] death, because she lived a few miles away, like, six miles or so from her mom and her sister. And I commend [aunt] for stepping up to the plate and being willing to assume this responsibility. . . . The boys are—you know, you’ve got about four years left as far as them being minors. It’s not like they’re little babies anymore. Kind of got their goals set out and, hopefully, are moving in that direction. And, certainly, I acknowledge and point out that their preference at least seems to be to stay with what they know, where they are comfortable. I think that has no negative reflection on dad at all. This is where they’ve been most of their lives with mom, or in Marin, or whatever. This is where, most recently, they have been. They’re comfortable. And I certainly appreciate that fact. The bottom line, though, I think, looking at the Family Code under section 3040, under the law, is that the preference is that the law gives—is that the children should be with the parent, or both parents, ideally. That’s not the case here. In the absence [sic] of the parent versus an aunt, I think I have to go with following the preference under the law—that custody should be with the parent that’s still here. There’s nothing that dad’s done to tell me he won’t be a good parent, or hasn’t been a good parent. [¶] So given the fact that he’s ready, willing, able, given the fact you have been able to work together, I’d like to see you folks continue to work together for the good of the boys. But I think from the point of view of guardianship, I don’t think there’s sufficient evidence that’s been presented to show—obviously, it could be disruptive, but, at this point, I’m going to deny the petition.”
Aunt filed a motion for reconsideration on the basis that the boys had not been allowed to testify. The motion was supported by a declaration from aunt regarding what she believed the boys would testify to regarding her involvement in their lives before their mother’s death. On December 13, 2006, the trial court denied the motion on the basis that no new facts or circumstances were presented. On December 15, 2006, aunt timely appealed, challenging the denial of guardianship and denial of the motion for reconsideration.
Discussion
When it is necessary or convenient, the court may appoint a guardian for a minor. (Prob. Code, § 1514, subd.(a).) In making its determination on a guardianship petition, the court is guided by Family Code sections 3020 et seq. and 3040 et seq., which govern custody awards. (Prob. Code, § 1514, subd. (b).) Family Code section 3040, subdivision (a) provides that “Custody should be granted in the following order of preference according to the best interest of the child . . .: [¶] (1) To both parents jointly . . . or to either parent. . . . [¶] (2) If to neither parent, to the person or persons in whose home the child has been living in a wholesome and stable environment. . . .” Family Code section 3041, subdivision (a) provides that, before a court may award custody of a child to a person other than a parent, “the court shall make a finding that granting custody to a parent would be detrimental to the child and that granting custody to the nonparent is required to serve the best interest of the child.”
Probate Code section 1514, subdivision (a) provides, “Upon hearing of the petition, if it appears necessary or convenient, the court may appoint a guardian of the person or estate of the proposed ward or both.”
Probate Code section 1510 provides that a relative or other nonparent may petition for guardianship, but “ ‘before a court may make an order awarding custody of a child to a nonparent without consent of the parents, “it shall make a finding that an award of custody to a parent would be detrimental to the child and the award to a nonparent is required to serve the best interests of the child.” [Citations.] That requirement is equally applicable to guardianship proceedings under Probate Code section 1514, subdivision (b).’ ” (Guardianship of Olivia J. (2000) 84 Cal.App.4th 1146, 1153 (Olivia J.).)
A court may “award custody to a nonparent against the claim of a parent only upon a clear showing that such award is essential to avert harm to the child.” (In re B .G. (1974) 11 Cal.3d 679, 699.) However, subdivision (c) of Family Code section 3041 provides explicitly that “As 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.”
“Although the Supreme Court in In re B. G.[, supra, 11 Cal.3d 679] did not specifically explain whether ‘a clear showing’ meant proof by clear and convincing evidence, the holding in that case has been consistently interpreted as requiring proof by the clear and convincing evidence standard whenever the court makes findings under Family Code section 3041 . . . .” (Guardianship of Jenna G. (1998) 63 Cal.App.4th 387, 391.)
In concluding that because father is a fit parent, “ready, willing, able” to care for his two sons, the presumption in favor of a parent compels the court to deny the guardianship petition although “obviously, it could be disruptive,” the trial court applied an erroneous legal standard. Father now essentially concedes as much. In his closing argument to the trial court, however, father argued that “the court must presume that it is in the children’s best interests to be with their father, absent a showing that this father is an unfit father. It is my client’s fundamental right, as a parent, to raise his children. . . . There has been no clear showing that some kind of harm . . . will come to the children other than the fact that they will be removed from Santa Rosa, they would miss their friends, and their family. My client has not testified that he wishes to cut the children off from [aunt], or the rest of the family. And, again, I submit that the court must presume that my client will act in his children’s best interests.” As the trial court’s explanation of its ruling quoted above makes clear, the court felt constrained to apply this standard.
Father argues that this court must affirm the judgment if there is evidence that supports the judgment “on any basis, regardless of the basis stated by the court in reaching the judgment. (In re Marriage of Burgess (1996) 13 Cal.4th 25 . . . .) [T]he standard of review of a trial court’s decision on appeal does not change because the trial court failed to apply the proper legal standard in the underlying case.”
The trial court did not apply the correct legal standard. Courts have repeatedly emphasized that the decision to grant guardianship to a nonparent over a parent’s objection should be guided by the best interests of the child as reflected in a weighing of multiple factors. In making its determination, the trial court “must look to all the circumstances bearing on the best interest of the minor child.” (In re Marriage of Burgess, supra, 13 Cal.4th at pp. 31-32.) The court in Guardianship of Zachary H. (1999) 73 Cal.App.4th 51 expressly rejected the proposition that a parent must be unfit before guardianship may be awarded to a nonparent. “ ‘It is presumably detrimental to a child to award custody to a parent who is so unfit that the state might have to intervene to retrieve custody, but it might also be detrimental to place him with a parent who is not unfit, depending upon the child’s current circumstances and the available placement alternatives.’ ” (Id. at p. 67.)
“California recognizes the principle that children are not merely chattels belonging to their parents, but rather have fundamental interests of their own. [Citation.] Such fundamental interests are of constitutional dimension.” (In re Bridget R. (1996) 41 Cal.App.4th 1483, 1490.) “[A]s a matter of simple common sense, the rights of children in their family relationships are at least as fundamental and compelling as those of their parents. If anything, children’s familial rights are more compelling than adults’, because children’s interests in family relationships comprise more than the emotional and social interests which adults have in family life; children’s interests also include the elementary and wholly practical needs of the small and helpless to be protected from harm and to have stable and permanent homes in which each child’s mind and character can grow, unhampered by uncertainty and fear of what the next day or week or court appearance may bring. [Citation.] [¶] Cases which hold that deference is to be accorded to parental rights do so in part on the assumption that children’s needs generally are best met by helping parents achieve their interests. [Citations.] In some situations, however, children’s and parents’ rights conflict, and in these situations, the legal system traditionally protects the child.” (Id. at p. 1504.)
One of the cases cited and relied on by father in his brief on appeal emphasizes the same point: “In determining the issue of guardianship, the primary fact to be determined by the trial court is what is for the best interest and welfare of the child. [Citation.] . . . [¶] Of course, as between a parent and others, all being equally entitled in other respects, a parent has and should have a prior right to be the guardian of his minor child. [Citations.] This right is not absolute, but will yield to the primary consideration of what is for the best interest of the child.” (Guardianship of Morris (1951) 107 Cal.App.2d 758, 763.)
The court in Olivia J. emphasized “the necessity of maintaining flexibility in the concept and application of the standard of detriment set forth in Family Code section 3041, and the absence of any requirement that a nonparent allege, or prove, abuse, neglect, or abandonment.” (Olivia J., supra, 84 Cal.App.4th at pp. 1155-1156.) “The question whether parental custody is detrimental to the child is highly dependent upon facts unique to each child and parent. To attempt to define the circumstances that might qualify as an ‘unusual and extreme [case]’ [citation] warranting appointment of a nonparent as guardian, over the objections of a parent, would deprive the court of the flexibility essential to its equitable jurisdiction. . . . ‘[T]he Legislature purposefully refrained from prescribing specific criteria in determining whether parental custody would be “detrimental,” reasoning that “[i]t is a nearly impossible task to devise detailed standards which will leave the courts sufficient flexibility to make the proper judgment in all cases.” ’ [Citations.] The preference for parental custody is adequately protected by requiring that the petitioner demonstrate by clear and convincing evidence that parental custody is detrimental to the child, without attempting to enumerate, by judicial gloss on the statutory language, what categories of factual circumstances may or may not be recognized as detrimental to the child.” (Id. at p. 1157.)
The issue of detriment to the child is always relevant in determining the child’s best interests. In Adoption of Daniele G. (2001) 87 Cal.App.4th 1392 (Daniele G.), the biological father of an infant objected to her adoption and the court refused to allow the adoption to proceed. The prospective adoptive parents then filed a petition for guardianship. The trial court found that although the best interests of the child were to be placed with the guardianship petitioners, the biological father’s constitutional rights, as recognized in Adoption of Kelsey S. (1992) 1 Cal.4th 816, required denial of the guardianship petition. (Daniele G., supra, at pp. 1394-1395.) The appellate court held that the trial court was correct in denying adoption, but had erred in assuming that a showing of detriment to the child was insufficient to support the guardianship petition. (Id. at pp. 1395-1396.) The court summarized the analysis as follows: “The ordinary standard of decision in a custody matter is the best interest of the child. (Fam. Code, § 3040.) Under the parental preference doctrine, however, an award of custody to a nonparent as against a parent cannot be made based on the child’s best interest alone; in addition, it ‘must be supported by an express finding that parental custody would be detrimental to the child and that finding must be supported by evidence showing that parental custody would actually harm the child.’ ” (Daniele G., supra, at p. 1401.)
The Daniele G. court reasoned in part that “the trial court failed to consider the countervailing fundamental interests of Daniele and of the state. ‘Although a parent’s interest in the care, custody and companionship of a child is a liberty interest that may not be interfered with in the absence of a compelling state interest, the welfare of a child is a compelling state interest that a state has not only a right, but a duty, to protect. [Citations.]’ [Citation.] [¶] ‘The child has a “liberty interest[]” [citation] in a “normal family home” [citation], with his parents if possible [citation], or at least in a home that is “stable” [citation]. This concern has been characterized as “important” [citation] and even “compelling” [citation]. “It is undisputed that children require secure, stable, long-term, continuous relationships with their parents or [other caretakers].’ ” (Daniele G., supra, 87 Cal.App.4th at pp. 1403-1404.)
“[D]enying custody to biological fathers (and mothers), once it has been proven that such custody would be detrimental to their children, is directly and substantially related to [the state’s interest in the child’s well being.] ‘Cases which hold that deference is to be accorded to parental rights do so in part on the assumption that children’s needs generally are best met by helping parents achieve their interests. [Citations.] In some situations, however, children’s and parents’ rights conflict, and in these situations, the legal system traditionally protects the child.’ ” (Daniele G., supra, 87 Cal.App.4th at p. 1404, quoting In re Bridget R., supra, 41 Cal.App.4th at p. 1504.) The court noted, “We recognize that, as a matter of substantive due process, the parental rights of a Kelsey S. father cannot be terminated without a finding that he is unfit. (Adoption of Kelsey S. supra, 1 Cal.4th at pp. 830-834, 849.) A guardianship, however, does not require the termination of either parent’s rights. To the contrary, the guardianship itself may be terminated at any time, based on a showing that termination of the guardianship is in the child’s best interest. (Prob. Code, § 1601.)” (Daniele G., supra, at p. 1406.)
In In re Bridget R., supra, 41 Cal.App.4th 1483, the court addressed custody rights where father had relinquished his twin girls for adoption, only to later reveal his Indian heritage and invoke the provisions of the Indian Child Welfare Act to thwart the adoption and regain custody. After holding that a remand was necessary, the court emphasized that the trial court would need to determine who should have custody of the children if the adoption could not proceed. “California’s guardianship law offers equitable and constitutionally permissible standards for resolving the question of the proper custody of the twins in the event their pending adoption by the [adoptive parents] . . . . These standards look to something more than the twins’ ‘best interests,’ but rather require an examination of whether a custody change will result in detriment to them. These standards are consistent with the statutory preferences for maintaining a child’s custodial ties with the biological parents, but do not require that result if the evidence shows that the child would be harmed if removed from the custody of those persons who have acted as de facto and psychological parents since birth and with whom the child has bonded.” (Id. at p. 1520.)
Other courts have also held that the trial court must consider whether the child has formed a parental bond with the nonparent petitioner in determining the best interests of the child. In Olivia J., the court held that “the loss of a relationship with a nonparent who has acted as a de facto, or psychological parent, is a factor the court may consider in determining whether parental custody is detrimental to the child.” (Olivia J., supra, 84 Cal.App.4th at p. 1159.) Conversely, “the absence of a meaningful parent-child relationship is a significant fact weighing in support of a court’s ultimate conclusion that the loss of a relationship with a nonparent is sufficiently detrimental to the child to warrant an award of custody to a nonparent.” (Id. at p. 1160, italics omitted.)
The court must also consider the child’s preference if the child is sufficiently mature. “If a child is of sufficient age and capacity to reason so as to form an intelligent preference as to custody, the court shall consider and give due weight to the wishes of the child in making an order granting or modifying custody.” (Fam. Code, § 3042, subd. (a).) “A child’s preference must be given serious consideration by the court in acting upon a motion for modification of custody where: (1) the issue is whether children will be moved from the community where they have lived for most of their lives; (2) an excellent parent who remains in that community wishes to have the children reside with him or her, and (3) the children, for valid reasons, have expressed a preference to remain in the community.” (In re Marriage of Rosson (1986) 178 Cal.App.3d 1094, 1102-1103, disapproved on other grounds by Marriage of Burgess, supra, 13 Cal.4th at p. 38, fn. 10.)
Father argues that even if the court applied the incorrect standard, “Any ruling by a trial court charged with the exercise of its discretion in deciding a case must be presumed to be based on the exercise of that discretion, unless the court expressly refused to decide the issue or case.” Not surprisingly, father cites no authority for this unique proposition. Instead, he suggests that because the aunt was representing herself, “the trial court chose to simplify the decision for the benefit of the party without counsel. This simplicity was not a failure to exercise discretion, rather it was a heightened and commendable exercise of such discretion. It would not have served any purpose for the trial court to employ an extensive jurisprudential rhetoric explaining why appellant did not state a case that brought her within the ambit of section 3041 of the Family Code in an emotionally charged, tension packed, grief stricken situation. The greater latitude must be given [to] the court’s determination that saying less was much better.”
However, while the trial court does exercise wide discretion in these matters, the court must nonetheless apply the governing legal standard in reaching its decision. “The scope of discretion always resides in the particular law being applied, i.e., in the ‘legal principles governing the subject of [the] action. . . .’ Action that transgresses the confines of the applicable principles of law is outside the scope of discretion and we call such action an ‘abuse’ of discretion.” (City of Sacramento v. Drew (1989) 207 Cal.App.3d 1287, 1297.) “In other words, judicial discretion must be measured against the general rules of law and, in the case of a statutory grant of discretion, against the specific law that grants the discretion.” (Horsford v. Board of Trustees of California State University (2005) 132 Cal.App.4th 359, 393.)
Father’s condescending focus on aunt’s self-representation is also misplaced. The trial court may not use a parties’ self representation to justify denying custody. (Guardianship of Zachary H., supra, 73 Cal.App.4th at pp. 53-54.)
There is no doubt that the record contains substantial evidence to support a finding under the correct legal standard that granting custody to the father would be detrimental to the boys and that granting custody to the aunt is required to serve their best interests. In contrast to their somewhat distant relationship with their father, the twins have a strong, stable and loving relationship with their aunt, they have longstanding ties within a healthy community in Santa Rosa, and they actively participate in school activities. The aunt, the boys’ grandmother, the boys’ attorney, the bereavement counselor, and the family court services evaluator all agree that removing them from the known, stable environment in which they have spent their entire lives, especially after having just suffered the loss of their mother, would be detrimental to their well being and is not in their best interest. Moreover, at the time of trial the twins were mature enough to have their desires considered, and their desire to remain with their aunt was unequivocal.
Indeed, the evidence was essentially uncontradicted that removing the boys from their aunt’s home at this time would be detrimental and not in their best interest. The fact that the boys had only resided on a full time basis with their aunt in the relatively short period following the death of their mother is of little significance here, since that home is in the same community in which they have lived since birth and the aunt always played a significant role in their upbringing. Father’s testimony was not to the contrary. His testimony tends to establish nothing more than that he loves the boys, wishes to be their primary caretaker, feels a responsibility to assume that role, and that with his wife he is capable of doing so. His testimony says nothing about how his feelings affect his sons’ best interests nor does it tend to negate the unanimous view that transferring their custody to him at this time would be disruptive and detrimental to the boys. Since their best interests are paramount, the parental preference notwithstanding, guardianship would be entirely justified. (See, e.g., Guardianship of Zachary H., supra, 73 Cal.App.4th at pp. 68-69 [affirming guardianship to nonparents, stating, “Zachary has been in a stable placement for over four years. He has bonded with [the prospective adoptive parents] and will suffer trauma if removed from their custody. Eric wants to remove Zachary from their custody. Though Eric is without fault for the circumstances, the constitutional rights of Eric and Zachary could not be more divergent]; Daniele G., supra, 87 Cal.App.4th at p. 1408 [“once the trial court found that granting custody to a parent would be detrimental, and that granting custody to the [prospective adoptive parents] would be in Daniele’s best interest, it should have granted the petition”].)
Because the trial court applied the incorrect legal standard and there is overwhelming evidence to support imposition of a guardianship, including the strongly expressed feelings of the mature youths, we remand the matter so that the trial court may reconsider the guardianship petition under the correct legal standard and in light of any change in circumstances that may be shown to exist when the matter returns to the trial court. In doing so, we do not intend to cast any reflection on father’s genuine love and concern for his sons. His willingness to take responsibility for their care in light of their mother’s unexpected death is commendable. However, the appointment of a guardian to avoid further disrupting the boys’ lives should not sever the relationship between the boys and their father. As the trial court expressed, it is to be hoped that under all circumstances the parties will maintain their cordial relations in the interests of the boys.
Disposition
The judgment is reversed and the matter is remanded with directions to reconsider the guardianship petition in light of this opinion.
In the interest of reaching a final resolution as quickly as possible, and permitting the boys to pursue their high school education with assurance that they will not soon be uprooted, we encourage the parties to consider stipulating to the immediate issuance of a remittitur pursuant to California Rules of Court, rule 8.272(c)(1).
We concur: McGuiness, P. J., Siggins, J.