Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Kern County, Super. Ct. No. S-1501-FL-590181, Sharon Mettler, Judge.
Cynthia Ann Wade, in pro. per, for Appellant.
Ethel Bartlett, in pro. per., as Amicus Curiae on behalf of Appellant.
Anna Lee Deuel, in pro. per., for Respondent.
No appearance for Respondent Brian Wade Deuel.
HARRIS, J.
INTRODUCTION
Respondent Anna Lee Deuel (Anna) filed a petition for dissolution of her marriage to Brian Wade Deuel (Brian), and sought legal and physical custody of their child (the child). Brian was in state prison, and his mother, appellant Cynthia Wade (Cynthia), filed a motion for joinder and for visitation with her paternal grandchild. The court granted the motion for joinder and provided for Cynthia to have visitation. Brian was released from prison and sought to regain his custodial and visitation rights, with Cynthia to provide supervision, but Brian appeared at a court hearing while apparently under the influence of a controlled substance, failed to comply with the court’s order to submit a drug test, and then disappeared.
“As is customary in family law proceedings, we refer to the parties by their first names for purposes of clarity and not out of disrespect. [Citations.]” (Rubenstein v. Rubenstein (2000) 81 Cal.App.4th 1131, 1136, fn. 1.)
The court granted custody to Anna, with specific visitation to Cynthia, but ordered Cynthia and Anna to attend counseling, for Cynthia to pay counseling and babysitting expenses, and not to make disparaging remarks about Anna in the child’s presence.
Cynthia has filed an appeal, and argues the court should have granted expanded visitation time, and abused its discretion in ordering her to attend counseling, pay counseling and babysitting expenses, and not to make disparaging remarks about Anna in the child’s presence.
Family Code section 3103 is the exclusive means by which a grandparent may seek visitation with a grandchild in the course of a dissolution action. We will review the factual and procedural history of this case, and whether the court had the statutory authority to issue the visitation orders in this case.
All further statutory references are to the Family Code unless otherwise indicated.
Anna’s Petition for Dissolution
On March 6, 1999, Anna and Brian were married. On or about December 21, 2003, they separated.
On May 4, 2004, Anna filed a petition for dissolution of marriage in the Superior Court of Kern County. The petition declared that Anna and Brian were the parents of an unborn child, due in August 2004. Anna requested sole legal and physical custody of the child, with Brian to have supervised visitation. Anna filed the petition in propria persona, and represented herself throughout this action.
On August 19, 2004, Brian’s and Anna’s child was born. The child has resided with Anna throughout the entirety of this case.
Brian has always admitted he is the child’s biological father.
At some point in the proceedings, Brian was placed in custody in state prison.
On November 18, 2005, Brian filed a response and request for dissolution of marriage. Brian requested joint legal and physical custody of the child, with the court to determine visitation. Brian was represented by attorney Larry Wilson, who represented him throughout this action.
Cynthia’s Motion for Joinder
On December 1, 2005, appellant Cynthia Wade, Brian’s mother and the child’s paternal grandmother, filed a motion and motion for joinder in the dissolution action, for the purposes of custody and visitation. Cynthia declared that Brian was unable to visit the child because he was in prison, and he asked Cynthia to maintain a family relationship with the child. Cynthia declared that shortly after the child’s birth, Anna allowed her to visit the child but subsequently terminated the visits. Cynthia declared Brian supported her motion for joinder, and Cynthia requested visitation with the child on alternate weekends. Cynthia was represented by Mr. Wilson, who continued to represent Brian.
On December 5, 2005, Judge Hoover conducted a hearing on Cynthia’s motion for joinder. There is no reporter’s transcript for this hearing. According to the minute order, Anna appeared and represented herself, Cynthia appeared with Mr. Wilson, and Brian was not present. Anna and Cynthia testified. The minute order states the court granted Cynthia’s motion for joinder on the limited basis of visitation.
On December 15, 2005, Cynthia filed the complaint for joinder and visitation with the child.
On December 16, 2005, the court issued a ruling on Cynthia’s request for visitation. The court’s minute order states that Cynthia was to “make her own hours” on visitation, and ordered Mr. Wilson to prepare the appropriate order. On the same day, however, the court filed the order after hearing, apparently prepared by Mr. Wilson, which stated that Cynthia was joined into the matter for the purpose of visitation, Cynthia’s visitation rights were derivative through any visitation granted to Brian, and Cynthia’s visitation order would be null and void if any orders were issued as to Brian’s visitation. The court granted Cynthia visitation with the child on Monday, Wednesday, and Friday afternoons, alternate weekends, four hours on Christmas Eve, and four hours on Christmas Day. Cynthia was ordered to provide all transportation.
Brian’s Release from Prison
On December 23, 2005, Anna filed an order to show cause for modification, and requested the court to “void” the order which joined Cynthia into the case. Anna declared Brian had been released from Wasco State Prison on December 5, 2005, the same day that Cynthia’s joinder motion was heard, his release on that date had been previously scheduled, and that Cynthia and Mr. Wilson should have been aware of his scheduled release on the day of the hearing and advised the court about Brian’s status. Anna requested a hearing to void Cynthia’s joinder into the case and set supervised visitation for Brian.
At some during the pendency of this action, Anna filed a separate complaint against Cynthia for civil harassment, and sought a temporary restraining order to keep Cynthia away from her. There is no evidence that Anna sought or received a restraining order between Cynthia and the child.
On January 6, 2006, Brian filed an order to show cause (OSC) for temporary custody of his child. Brian declared that he asked Cynthia to join the matter to maintain their family relationship with the child, and the court provided for visitation to begin on December 17, 2005. Brian declared that Anna had either “gone into hiding” or “fled the area” with their child because Anna had failed to appear for Cynthia’s visitations on December 17, 18, and 19, 2005. On those dates, Cynthia and a police officer went to Anna’s apartment, no one answered, and Anna’s neighbors said they had not seen her for a couple of days. Cynthia affixed the court’s visitation orders on Anna’s door. Cynthia received information that Anna might be in Eureka.
Brian further declared that he was employed as a cable television installer, he was now available to assume his own custody and visitation rights, Anna was trying to undermine his relationship with his child, and he requested temporary custody of the child so he could request assistance from Kern County’s child abduction unit to locate the child.
The record infers the court granted Brian temporary custody of the child, but the order only remained in effect until January 12, 2006. During that time, however, the child remained in Anna’s physical custody. The record also infers that the custody matter was set for mediation but Brian failed to appear.
On January 12, 2006, Judge Alderete conducted a hearing on Brian’s OSC for modification. There is no reporter’s transcript for this hearing. According to the minute order, Brian and Cynthia were present with Mr. Wilson; Anna was present and represented herself. The court continued the custody and visitation case to January 23, 2006, and ordered Anna’s civil harassment case against Cynthia to be heard on that date.
On January 20, 2006, Anna’s separate case for civil harassment was dismissed without prejudice.
The January 23, 2006 Hearing
On January 23, 2006, Judge Mettler conducted the continued hearing on Brian’s OSC for modification. Anna, Brian, and Cynthia were present; Mr. Wilson represented Brian and Cynthia. There is a reporter’s transcript for this hearing. Judge Mettler informed the parties that Judge Hoover was not available to hear the case because “he is scheduled for surgery later this week and so that’s why you are getting a brand new judge. And he has been moved out of family law.”
The court noted that Anna’s case for civil harassment had been dismissed without prejudice because no one appeared for the hearing. Anna stated she did not appear because Mr. Wilson advised her the civil harassment case had been continued to this date. Mr. Wilson agreed the civil harassment case was erroneously dismissed. The court set aside the dismissal and agreed to hear argument on the civil harassment case.
The court reviewed the prior orders in the case and acknowledged that Cynthia’s motion for joinder was granted for the limited purpose of visitation. The court also reviewed the pending motions for custody and visitation. The court observed that Cynthia’s visitation rights were derivative through Brian, Brian had been released from prison, and the joinder order should be moot. The court asked whether Cynthia still had a position in this case. Mr. Wilson acknowledged Brian was released from prison and Cynthia’s visitation rights were derivative through him, and admitted Cynthia was not trying to receive an independent visitation schedule. However, he asked the court to continue Cynthia’s joinder in the case because her participation was “essential in regards to any kind of visitation.” Mr. Wilson stated Brian filed the OSC for temporary custody because Anna fled the area. Brian did not want primary custody, but requested a visitation order to replace Cynthia’s visitation schedule.
The court interrupted Mr. Wilson’s argument and advised the parties that a deputy sheriff, who was present in the courtroom, informed the court that Brian appeared to be under the influence of a controlled substance. Mr. Wilson replied he also noticed Brian’s condition and asked him about it, and Brian said he spent all night working on a friend’s computer system. Mr. Wilson asked to adjourn the hearing so Brian could take a drug test and verify that he was not under the influence. The court called a recess so the deputy could speak to Brian and evaluate his condition.
After the recess, the court stated the deputy believed Brian was under the influence of a controlled substance. Mr. Wilson suggested a continuance so Brian could immediately submit a drug test. Mr. Wilson also suggested the parties comply with the current visitation order, so that Brian could visit the child while she was with Cynthia. Anna objected to the continuance because she could not take off anymore time from her new job as a waitress. Anna also objected to Brian receiving any visitation because drugs had been a serious problem for him, “and his mother [Cynthia] has covered up for him in the past, and I would be uncomfortable” with Cynthia supervising his visitation.
The court asked Mr. Wilson whether he would waive Brian’s continued presence at the hearing, given the deputy’s determination that Brian was probably under the influence. Mr. Wilson agreed and waived Brian’s presence, although Brian physically remained in the courtroom.
The court was willing to continue with the hearing to determine Brian’s status and whether Cynthia should supervise Brian’s visits with the child. Anna again objected because Cynthia “has covered up his prior drug use and has had his coming to my house while she knew he was under the influence.”
The court decided to proceed with the hearing to consider Brian’s request for Cynthia to supervise his visits with the child, “so at this point the burden is on him for showing that she would be a good supervisor, so he would call witnesses.” If Brian’s drug test was positive, it would consider ordering Cynthia to supervise the visits unless Anna could think of someone else to act as supervisor. Anna again objected to leaving her child with Cynthia.
Thereafter, Mr. Wilson called Cynthia, who was sworn as a witness, to testify as to whether she should supervise Brian’s visits with the child. Cynthia testified she worked for Bethany Ministries and Bethany Christian Men’s home, a residential treatment program. Cynthia’s mother was the pastor, and Cynthia had been involved with prison ministry for many years. The majority of their clients were trying to deal with their drug addictions, and Cynthia regularly ordered clients to submit drug tests when they displayed certain symptoms.
Cynthia testified she had received 10 of 22 scheduled visits with the child, pursuant to the court’s visitation order. The child’s maternal grandmother (Anna’s mother) provided transportation for the child, and there were no problems with the exchanges. The other visits did not occur either because Anna was not home or she refused to allow the visits.
Cynthia testified that as a condition of his parole, Brian was ordered not to have any contact with Anna. Cynthia testified the stay-away order was the result of an incident where Anna “had a butcher knife and she was chasing him and saying she was going to stab him.” Cynthia testified that Anna had a history of assaulting Brian, based on “what I’ve witnessed on his body and also the story such as I was told.”
Cynthia testified the child had bonded with Brian and herself. Brian was temporarily living with Cynthia. Cynthia was willing to supervise Brian’s visits with the child, and asked the court to adjust the visitation schedule to fit the work schedules for Brian and her.
Cynthia admitted that she had noticed Brian’s condition earlier that day, and she was concerned he might be under the influence of a controlled substance. She asked Brian if he was okay, and Brian said he was tired because he stayed up all night working on a friend’s computer. Cynthia admitted that if Brian showed up at the church’s treatment program in his present condition, she might have asked him for a drug test. Cynthia testified that Brian previously participated in the church’s treatment program, he appeared to be under the influence on one occasion, she ordered him to submit a drug test, it was positive, she ordered him out of the program, and “he was gone the same day.” Cynthia testified she could exercise the same type of control over Brian if she was asked to supervise his visits with the child. Cynthia was also willing to ask Brian to move out if so ordered by the court, and she would not let him around the child if he was under the influence.
Thereafter, Anna was sworn as a witness and testified she tried to follow the court’s visitation orders. Anna had an older son from a previous relationship; Brian was not his father. Anna testified she was not at home when Cynthia showed up for some of the visitations because she took her son to visit his father, and she had not received the court orders for the visitation dates. When she returned, she discovered the court orders were taped on her door. Anna called Cynthia and told her to pick up the child for her visit. Anna testified she cancelled some of the other visits because she believed the court order provided for the visits to be at her discretion.
Anna’s confusion may have been based on the court’s minute order from December 16, 2005, when it stated the grandmother was to “make her own hours” on visitation, and not aware of the actual order which set specific visitation times.
Anna testified she was aware of the incident in January 2005, where Brian tested positive for drugs while attending the church’s treatment program, but disputed Cynthia’s account of the incident. Anna testified Cynthia knew Brian had tested positive but Cynthia failed to tell Anna about the positive drug test until Brian’s parole officer learned about it and informed Anna. Anna complained that Cynthia knew about the positive test but allowed Brian to visit Anna and the child in that condition. Anna also clarified Brian did not leave the church’s treatment program until three weeks after failing the drug test, because he was wanted by parole and could not stay there anymore.
“Q. And you are saying it’s three weeks later that he is still living there?
“[ANNA] Yes, and [Cynthia] also told me not to tell Brian because she didn’t want me to come between her and her son.
“Q. ‘Don’t tell Brian that I tested him dirty’?
“A. Yes.
“Q. So you are saying she did not kick him out of the ministry?
“A. Yes, I am.”
Anna testified Brian left the program and was missing for about two weeks, and then he returned to Anna’s home and promised he would enter another treatment program. Anna let him stay with her until she found a needle in his bag, and immediately kicked him out.
Anna testified she did not want to stop Cynthia’s visits with the child. Based upon these prior incidents, however, she was concerned that Brian would continue to use drugs and Cynthia would let him visit with the child when he was under the influence. Anna explained she was against drugs, she had seen Brian under the influence on numerous occasions, and drugs were “one of the major problems in our marriage.” She knew Brian continued to use drugs and preferred methamphetamine, and he also used heroin. Brian always lied to her about his drug use “because it was something that I was very against.”
Anna testified she previously had a drug problem and lost custody of her son. She went through treatment programs, she had been clean and sober since approximately March 12, 2002, and she regained custody of her son. She still had a sponsor and occasionally attended support meanings.
Cynthia was recalled as a witness, still under oath, and asked about the incident where Brian tested positive while at her church’s treatment program. Cynthia insisted that Brian left the program within a few hours of learning about the positive drug test. Brian’s parole agent spoke to Cynthia and informed her that Brian also failed a parole drug test. As a result, Brian took off for two weeks because he thought he had violated parole, but the parole agent was willing to work with him because it was his first failed test.
At the conclusion of the testimony, the court ordered Brian to submit a drug test that day. If the test was negative, he would receive visitation with the child, with Cynthia providing supervision. If the test was positive, Brian would not have any visitation until he submitted two consecutive clean tests, at least five days apart. If Cynthia failed to follow the court’s order, then the court would not consider her as a suitable supervisor. Cynthia requested modification of the visitation schedule to fit around her work hours. Anna objected because of her own work schedule. The court declined to modify the time frames and continued the matter.
The February 6, 2006 Hearing
On February 6, 2006, Judge Mettler conducted the continued hearing on the custody and visitation issues. Anna and Cynthia were present; Brian was not present. Mr. Wilson appeared on behalf of Cynthia and Brian.
Mr. Wilson advised the court that Brian refused to take the drug test, as previously ordered by the court, and his whereabouts had been unknown for three weeks. Brian’s parole officer was looking for him for a potential violation, and Brian had been fired from his job. Mr. Wilson further stated Cynthia had received visits with the child, and she provided transportation. Mr. Wilson stated that since Brian was physically and emotionally unavailable for any meaningful visitation with the child, Cynthia requested modification of the visitation schedule so it would not conflict with her work hours. Cynthia also wanted overnight visitations.
Anna, who represented herself at the hearing, stated she did not object to Cynthia’s visits with the child, but objected to Cynthia’s schedule requests. Anna explained the child was 17 months old, and Anna did not allow her own mother to have overnight visits with the child yet. Anna complained she was the sole provider and single mother of two children, and the court needed to consider her own work schedule. Anna stated the current arrangement was disruptive to her own life because she lost her last job because of the visitation schedule. Anna argued Cynthia’s demands for visits disrupted her own time with her daughter, and her eight-year-old son was upset with Cynthia because he was very close to the child and he did not have any time with her. Anna was currently employed as a waitress at IHOP, she worked eight hours a day, seven days a week, and only occasionally received days off. Anna also stated that her previous babysitter said Cynthia was crazy and refused to handle the transfers of the child to Cynthia. Anna stated her own mother was not able to provide babysitting anymore, and Anna had to find another provider.
The court asked Anna about the related case for civil harassment she filed against Cynthia. Anna, again representing herself, stated she moved for the restraining order because Cynthia left an “evil letter” on her car, Cynthia made several telephone calls to her and threatened to go to court if Anna refused visitations with the child, and Cynthia parked across the street from her home and watched her. Anna stated that when the child was born, she did not allow Cynthia or Anna’s mother to take care of the child until she was three months old. At that point, Anna allowed Cynthia to have regular visits until the child was seven months old, but Cynthia demanded more time with the child and claimed she had rights as a grandparent. Cynthia kept threatening Anna, Cynthia acted like she was the child’s mother, and Anna stopped talking to her. Anna was upset because Cynthia was demanding more and more time with the child, whereas neither Cynthia nor Brian was providing financial support for the child.
Anna stated that when Brian was released from prison, she asked him several times for financial assistance for the child, and Brian replied that he would take the child from her and not give her a penny. Anna asked Cynthia for help, and Cynthia said she would only help Anna if she had the child for the weekend. Anna stated that her own mother did not have a lot of money, and her maternal grandfather was the only relative who provided her with financial assistance.
Anna again stated that she did not object to Cynthia’s visits with the child, but she needed help to continue working, have her own time with the child, and pay for another babysitter. Anna stated she understood the importance of the child enjoying her extended family, but “my opinion of being a grandparent involves something more than just getting a child when you want it. I feel that [Cynthia] should be more patient with my difficulties due to the fact that her son doesn’t bother to pay any support towards his daughter’s needs. More importantly, I see no reason why the grandparent that has put forth the least effort should be granted more visitation than the one that has demonstrated more effort on [the child’s] behalf. I’m also concerned about the threats [Cynthia] has made towards me and the fact that in the past she has covered up Brian’s drug use.”
Anna further stated that she offered Cynthia eight hours on Christmas Eve and four hours on Christmas, but Cynthia wanted more time so Anna gave up the child for the entire day on Christmas.
Mr. Wilson, Cynthia’s attorney, challenged Anna’s claim that she was fired from her last job. Mr. Wilson stated that two sources reported that Anna quit that job because of a child custody problem, and she fled the area to avoid compliance with the visitation order. Anna replied that was not true because “I wouldn’t be here if that were the case.” Anna also explained she was fired by her boss, “Angie,” because she was not able to appear for her work shift.
Mr. Wilson disputed Anna’s claim that she had a babysitter, and stated Cynthia had always dealt with the maternal grandmother when exchanging the child. Mr. Wilson also disputed Anna’s claim that Cynthia demanded overnight visits in exchange for child support, or that Cynthia made threatening telephone calls. Mr. Wilson further stated that Anna’s older son, who was eight years old, used swear words against Cynthia in Anna’s presence, and such behavior showed no one controlled the boy. Anna admitted her son told Cynthia “to burn in hell or something,” but explained her son was very upset at Cynthia because he never got to spend time with his sister.
The court asked Mr. Wilson about Anna’s allegations regarding an “evil letter.” Mr. Wilson presented the court with a copy of the letter.
“MR. WILSON: ... I believe this is a copy of the letter that was, in fact, given to her—and your Honor can certainly read it—I don’t believe there is anything in here that is terribly threatening in any manner, but [I]’ll be more than happy to give it to the Court if you would like to peruse it yourself.”
As we will explain post, Cynthia claims on appeal that she composed the letter at Mr. Wilson’s request as “documentation” of her relationship with Anna, she gave it to Anna as part of the court-ordered discovery, and she never wrote it as an actual letter addressed to Anna.
The court asked Anna to review the letter and whether she had received it. Anna looked at the letter and confirmed it was the letter from Cynthia which was “full of vile and hateful things.”
“[ANNA]: She says I have an evil heart. She is writing down stuff that her son [Brian] says. She believes her son. Her son is a junkie. She said she saw some scratches on his neck. This man has beat the crap out of me. He put me in the hospital. He has stabbed me. And she is saying I chased him with a butcher knife. That is not true. All of this stuff she hears from Brian.
“Look at me. I’m a little girl and there is this six-foot-three man, and I don’t care if she has—I want my daughter to have her—I would love more than anything for Brian to be here and to be good and healthy and take care of his daughter, but he is not. I wouldn’t mind sharing my daughter with her grandmother, but this stuff in that letter was horrible, evil. Half of the stuff is not even true. And yes, I had an abortion. She hates me. She won’t admit it, but she hates me because I had an abortion. And that’s something that I have to deal with every day. I’m not happy with it. I can’t change it, though.
“THE COURT: The law of the United Sates is that a woman has a right to terminate a pregnancy because it’s a decision for the woman. It’s an individual decision, a personal decision, and no one should be harassing someone because of the decision that person made. It is a personal decision. No external comments are necessary. I don’t think any are desired, and they certainly would be an excellent reason for a judge to not put someone in someone else’s presence if they are going to make negative comments.”
The court admonished Mr. Wilson that it was “incumbent” for Cynthia to be polite, courteous, and respectful of Anna if she received visitation.
“[THE COURT:] And ma’am, there are many reasons that people terminate pregnancies, and you need to just make peace with yourself and, if you have done that, forget everybody else.
“[ANNA]: I was 17.
“THE COURT: Ma’am, do you hear what I’m saying? You don’t have to justify that to me. That was your personal decision, which you had the legal and moral right to make. So you might want to work on it for yourself, but … you don’t have to work on it for me or for anybody else. [¶]…[¶]
“[ANNA]: Then she says things in there that aren’t even true.”
Anna stated she received the letter on December 5, 2005, “the same day that we were supposed to go to court.” Anna stated she was now 28 years old, and she had been involved with Brian since she was 18 and he was 21. Anna again stated Brian regularly lied to his mother about their relationship, and his mother believed everything he said. The court replied, “You know, as a mother you can be pretty gullible.”
The court asked Mr. Wilson for any additional comments. Mr. Wilson said he had granted “an awful lot of latitude” to Anna, “allowing her to rave on and do her thing, but this is an angry young woman here who basically just doesn’t want anybody to see this child.” The court noted Anna initially allowed Cynthia to visit the child until she did not like the way that Cynthia was talking to her, “whether or not her reasons were sufficient or valid.”
Mr. Wilson disputed Anna’s account of the Christmas visits, and stated Anna voluntarily offered Cynthia additional time with the child on those days. As Mr. Wilson continued his argument, the following exchange occurred:
“MR. WILSON: “My client is dying to say something and I’m not sure exactly what.
“THE COURT: Let her whisper it in your ear.
“[CYNTHIA]: Is that the only way, through my attorney?
“THE COURT: I’m trying to get the information that I need to have in about a quarter of the time it would take otherwise. So nobody is actually testifying, because I don’t have people under oath. I’m getting representations of what testimony would be and argument all rolled into one.
“[ANNA]: Can I say what I was going to say now?
“THE COURT: No, you can’t.”
The court stated that it understood the parties’ positions and that Anna was not opposed to visitation but wanted to schedule it around her work hours. Anna again said that if she wanted to interfere with the visits, she never would have allowed Cynthia to have the child on Christmas Eve and Christmas Day. Anna did not object to Cynthia receiving visitation, but the present order was “outrageous” and she needed more time with her own child.
The court said it would take the matter under submission and try to work out a visitation schedule so that Cynthia could have the child while Anna was at work, but overnight visitation would wait for the time being. “It is important that the mother’s work schedule be accommodated, and so that’s the first work schedule that I have to accommodate, and so those are the lines along which I’m thinking.” The court also believed Anna needed anger management and should receive counseling. “And, you know, I’m not going to claim that life hasn’t dealt you a great blow. The father of your child is not available to assist you either physically, emotionally, financially, anything wise, and that’s a depressing situation ....” The court also intended to read Cynthia’s letter to Anna.
Cynthia’s Letter to Anna
As explained ante, Anna informed the court that Cynthia gave her a letter on or about December 5, 2005. Cynthia’s attorney confirmed the existence of such a letter and presented it to the court. Anna confirmed it was the letter she received from Cynthia, it was marked as an exhibit, and the court agreed to review the letter when it took the matter under submission.
Cynthia’s letter to Anna consists of four, single-spaced typed pages. It is not dated. It begins:
“Anna
“Once again I’m sitting at my kitchen table writing you a letter. The first letter I wrote you was in April of 1999. When I was writing I was crying so hard that my tears was [sic] ruining the paper. I’m sure you remember the letter ....”
Again, Cynthia claims on appeal that she did not write a letter to Anna, but instead composed documentation of her prior relationship with Anna at her attorney’s request.
Cynthia reminded Anna about her decision to have an abortion in 1999, when she was pregnant with Brian’s child. Cynthia wrote that Brian begged Cynthia to help him keep the baby. Cynthia also recalled that she offered to help Anna with school, housing, clothing, and even offered her $5,000 if she would keep the baby. Cynthia described Anna’s appearance when they spoke about the issue:
“… Your hair was purple you had a ring in your nose, and black lip stick. You had on a see-through white lace blouse and a black leather mini skirt. Your nylons were black and shreaded.”
Cynthia also wrote about their conversation about the pregnancy.
“… I told you the baby shouldn’t have to die because you don’t want it. I prayed night and day, I had the whole church praying. Brian called repeatedly wanting to know if everything was alright, together we picked out a name, Shanna.”
Cynthia reminded Anna that she initially said she would keep the baby, then told Cynthia that she did not mean it. Cynthia wrote that she regularly went to the abortion clinic to try and intercept Anna, and asked people who were regularly outside the clinic to look for Anna. One of these people saw Anna at the abortion clinic and alerted Cynthia.
“… They tried to convince you what you were about to do was wrong and you would regret it. But that didn’t stop you. After I got off work I went to your apartment and stood outside your door and begged you to not go through with it. You cussed at me and told me to go away. I called my friends and we got together to pray.…”
Cynthia wrote that the next morning, she went to the abortion clinic and confronted the “abortionist” as he parked his car, and “asked him to please not kill this baby that the father of this child desperately wanted this baby.” The man replied that it was the woman’s decision, and Cynthia told him that “it would be his hands that killed my grandchild and begged him not to.” Later that day, Cynthia received a message from someone outside the clinic that Anna was there. Cynthia wrote that she left work, went to the clinic, confronted Anna, and “begged at your feet to not kill this baby.” Someone asked Cynthia to leave, and Cynthia told the person that “‘my grandbaby is about to die.’” The letter continues:
“… You were determined to get back at Brian in any way you could, you even took the life of your own child to achieve it. Regret, yes you should regret. This precious baby’s body was literally ripped apart from your womb and you and only you made that decision.…”
Cynthia wrote that she had a memorial service for “the death of this baby” at her church, which was attended by Anna’s older child and Anna’s mother. Cynthia reminded Anna that “Shanna my grandbaby would have been six years old this year,” and she had a memorial service every year to her memory “and the thousands of other babies that are killed by abortion.” Cynthia reminded Anna that she tried to convince Brian not to allow Anna to move into his apartment, but Brian wanted to help Anna and her older child.
“Who would of ever thought that when he tried to help you and your baby, that you would take the life of his own child. Anna what you did was wrong and I will forever feel the loss. I have forgiven you Anna but the pain doesn’t go away.”
Cynthia next wrote about another incident when she had a feeling that something was wrong with Anna. Cynthia went to Anna’s apartment and discovered she had taken all her pills. She took Anna to the hospital, and picked her up from the mental health department and took her home. “You were surprised that I didn’t hate you. I told you that I didn’t hate you, I hated what you did.”
“You continued down your road of destructive behavior until you lost [your older son]. I have to say it was a blessing to know that [your older son] was in a safe and loving household. Away from all the violate [sic] behavior, filthy and obscene language, drinking, drugs, smoking, illegal activities, loud and ungodly music, parting [sic] all hours of the night, unsanitary living conditions, lack of any parental guidance, and inadequate nutrition. This precious little child has been subjected to so much.”
Cynthia recounted another event, when Anna overdosed at McDonalds, an officer searched her backpack, he was stuck by a needle, and he had to “live with the fear that he got AIDS or hepatitis from your needle.” She also recalled when Anna “escaped” from a hospital. Anna “tried to make it look like Brian is the one that is totally at fault,” but Cynthia knew about Anna’s “violent behavior” toward Brian. Brian’s father and stepmother informed Cynthia that Anna chased Brian with a butcher knife and threatened to kill him. Brian arrived at Cynthia’s house with a two-inch gash by his eye and neck bruises, and said Anna inflicted the injuries and he was finished with her.
“Let’s not forget the time you set Brian up when you had one of your friends, (I believe her name is Tina) hit you in the face so you could blame it on Brian. You reported it to the police and had Brian arrested and he in fact served time for it. What you did is illegal and you could serve time for it. The written confession that you gave Brian’s Parole officer will validate that event. Now for your most current confession; attempted murder. You called me and said I was going to be mad at you. I asked why. You said you were driving down Bernard Street and you saw Brian walking. You said you were mad at him because he hadn’t given you any money for the baby and that you tried to run him over and then you got out and beat him up. You also said he had a stereo and you took it from him and you then called the police and had him arrested. What a sweetheart you are. You tried to kill my son and you want me to feel sorry for you because he has no money to give you. Once again what you did is illegal and you could serve time for it.” (Bolding in original.)
Cynthia wrote that Anna continued to inflict hurt and devastation on her.
“… It wasn’t enough that you had my first grandchild killed now you have deprived me of some of the most precious moments of my only living grandchild. I think the real reason you won’t let me spend time with my granddaughter is because YOU’RE JEALOUS. You don’t want her to have any special attention. It has to be all about you. I can remember the countless times you got mad whenever Brian was given anything .... I believe you burned all his clothes twice. How about the time Brian spent a couple hours with me on our birthday and you found out and you took his birthday cake and threw it into the parking lot from the second story where you both were staying. What a loving wife, Oh what a daughter-in-law, oh what a mother.”
Cynthia declared that Anna had “a wicked heart,” and she needed to take a “long hard look at the deployable [sic] things you have done and continue to do.” Cynthia reminded Anna that she was involved with “Wicca” and satanic books. Cynthia also reminded Anna there were people willing to testify to the physical abuse she inflicted upon Brian.
“ ... [F]or every story you told me about Brian he can tell plenty of his own. Such as the time you tried to poison him; by putting Comet in his antibiotics, which again is attempted murder. Anna there is one thing I am sure of, both of you have your problems.”
Cynthia wished Brian and Anna had never met, but realized Anna wanted Cynthia to be at her mercy if she wanted to see her granddaughter. Cynthia recounted several incidents where Anna promised Cynthia could be with her granddaughter, then changed her plans without caring about the impact on Cynthia.
“I’m tired of all your obnoxious behavior. My final statement is ‘I’ll see you in court!’”
The letter is not signed.
The Court’s Rulings
On February 8, 2006, Judge Mettler issued a ruling on the custody and visitation issues. Cynthia’s letter to Anna was attached as an exhibit to the ruling. The court noted Brian had “voluntarily absented” himself from his daughter’s life “by choosing to be a controlled substance addict and is wanted by law enforcement,” through his criminal behavior and refusal to seek sobriety, and noted he came to court under the influence. The court noted the case presented an interesting twist on grandparent visitation rights since Cynthia, as the paternal grandmother, wanted to have a relationship with the child “in spite of her son’s failure to be available to share his visitation time with her. Generally speaking, visitation with a grandparent is positive for a child.”
“Unfortunately, [Cynthia] sent to [Anna] a letter which shows that [Cynthia] has applied her own religious and moral views to mother, determined that [Anna] comes up short, and freely shared her judgments with [Anna], the mother of her only grandchild. This court is less inclined to allow lengthy visitation to her after reading her letter to the mother. Not many responsible, reasonable parents would want someone around their child who had sent them a letter like this.
“This letter is four pages of hateful vitriol, which criticizes and condemns every aspect of the mother’s life. Such communications reflect someone who very much believes she should be running and judging the world. The death of a child, a baby, is one of life’s saddest, if not the saddest, events. Reflection on a voluntary termination of pregnancy would be painful for any woman of reasonable sensitivities. To still be subjected to someone else’s harping and condemnation after more than six years have passed is almost beyond comprehension. To be subjecting someone to this is insensitive at best and cruel at worst. ‘Evil’ is not an unreasonable description. No one could reasonably believe that this letter would make the parent of a child want to place that child in the writer’s care. Writing it shows such poor judgment that this court finds that [Cynthia] needs some counseling from a state licensed counselor (MFCC or LCSW), and therefore orders [Cynthia] to attend at least 12 sessions of counseling at her own expense.…”
The court stated that as a condition of any visitation, Cynthia was required to promptly enroll in counseling within 30 days, regularly attend at least twice a month, and complete counseling by June 30, 2006. Cynthia was ordered to pay for the counseling. The court would suspend visitation if Cynthia failed to present proof of compliance.
The court found Anna was relatively young and immature “so her behavior is somewhat understandable,” but Cynthia was “old enough to have learned to respect others and to treat them with dignity.” The court lauded Anna’s efforts to rehabilitate herself, compared to Brian’s conduct in this case. The court found Anna “has enough on her plate without adding any monetary costs or claims on her time.”
“Should [Cynthia] not completely stop communicating with the mother like this, she should not have visitation. No parent should have to expose her child to someone who bears such contempt and deep animosity for the parent. The mother has been through some rough patches, but to her credit she came to court sober, is working, and is the sole provider for [the child]. This is more than can be said for [Cynthia’s] son, [the child’s] father.”
The court ordered that when the child was in Cynthia’s custody, Cynthia could not make any comments, or permit third parties to make any comments, “that are judgmental, negative, critical, or unkind with respect to the mother. This prohibition includes comments about the state of the mother’s immortal soul or her religious beliefs. The day [the child] comes home and asks mother why mother is going to hell is the day a paid professional visitation supervisor or termination of visits will be necessary.”
The court also criticized Anna as immature for keeping the child away from Cynthia for eight months before Cynthia even gave her the “‘evil’” letter, and for allowing her older son to speak to Cynthia in the manner she described.
“… Children reared with that mentality seldom become world leaders. Parents should rear children in the way they want them to go as adults. This is the type of evidence that, coupled with other evidence, can result in a change of custody.”
The court granted Cynthia visitation with the child up to two evenings a week when Anna was working, from 5:00 p.m. to 8:00 p.m. The court would be “very suspicious” if Anna’s work schedule suddenly changed to eliminate her evening shifts. If that happened, the court ordered that Cynthia would have visitation on Tuesdays and Thursdays, from 5:00 p.m. to 8:00 p.m., and on Saturdays and Sundays when Anna was working. Cynthia would provide all transportation. The court again clarified a condition of Cynthia’s visitation was that she could not allow others to discuss “the subjects touched on in her letter to the mother, which include, abortion, Wicca, abuse between Brian and the mother, the mother’s clothing, and for what behavior the mother can be prosecuted.”
The court also ordered Cynthia to pay Anna $300 a month as day care or babysitting reimbursement, as a condition of the visitation.
“… This is not intended as any kind of penalty against [Cynthia], but to insure that [Anna] has the funds to hire a quality sitter who is willing to deal with [Cynthia]. The court also suspects that some of the mother’s anger is related to having to rear this child with no help from the father and hopes this might help her to see past her anger to the good that come from a child having another person to love her.”
The court ordered Anna to attend anger management and parenting classes, and for Cynthia to either pay for or reimburse her for the costs of these classes. Anna was ordered to enroll within 30 days, provide proof of enrollment, attend, and complete the classes. Cynthia could provide childcare while Anna attended these classes. Finally, the court denied Anna’s request for the civil harassment order, without prejudice to Anna bringing the request again “if there are any more letters or communications similar to the four page letter submitted in court.”
On February 22, 2006, Judge Mettler issued a supplemental ruling to clarify the custody and visitation order.
“… Given the father coming to court under the influence of a controlled substance, refusing the court order[ed] drug test, failing to attend mediation several times, and abandoning his own OSC due to his drug addiction, this court concludes that the only appropriate order is sole legal and sole physical custody be awarded to the mother.”
The court found Brian had a history of habitual use of controlled substances and was not seeking sobriety, and denied any visitation to Brian until he was in recovery. The court also found the presumption contained in section 3103 did not apply because both parents did not agree that grandparent visitation was not in the child’s best interests. “However, this visitation is marginally in the best interest of the child. If conduct is repeated, a reasonable court could only conclude that her visitation should stop.”
As we will discuss post, section 3103, subdivision (d) raises a rebuttable presumption that visitation with a grandparent is not in a child’s best interest if both parents object to such visitation.
Appellate Issues
On March 28, 2006, Cynthia filed a timely notice of appeal of the court’s visitation order of February 8, 2006.
On April 12, 2006, the court filed the findings and order after the February 22, 2006 hearing, granting Anna sole legal and physical custody, denying Brian visitation until he was in recovery, granting Cynthia visitation under the schedule previously set forth in the minute order, ordering Cynthia and Anna to attend counseling as previously ordered, and ordering Cynthia not to make negative comments about Anna in the child’s presence.
On appeal, Cynthia represents herself in propria persona and has filed opening and reply briefs written in narrative form, which contains facts that were not before the superior court, such as that Brian was back in prison as of August 2006. Cynthia’s opening brief reviews and refutes nearly every line of the reporter’s transcript and Judge Mettler’s rulings in this case. She also restates the allegations raised below—that Anna interfered with her visitations after the original December 5, 2005 visitation order; Anna’s older son was disrespectful to Cynthia; and Anna’s request for a restraining order was based on false allegations against Cynthia.
Cynthia also complains she never had the opportunity to provide character references and witnesses at the January 23, 2006 hearing, her attorney failed to relay “vital information” to the court at the February 6, 2006 hearing, her attorney was not properly prepared for these hearings, and she tried to speak at that hearing when “it became evident” that counsel was “inefficient,” but the court would not allow her to speak.
Cynthia complains the court did not place Anna under oath at the February 6, 2006 hearing, Anna made false statements at that hearing, and the court’s ruling was based upon Anna’s lies. Cynthia asserts Judge Mettler showed “partiality” toward Anna and “extreme discrimination” against Cynthia, based on Judge Mettler’s acknowledgement at the February 6, 2006 hearing, that no one was being placed under oath.
Cynthia attacks nearly every sentence in Judge Mettler’s ruling. She claims there was never any evidence that Brian appeared in court under the influence, he never submitted a positive drug test, and he never refused to seek sobriety. Cynthia states that Brian tried to comply with the court-ordered drug test, but he was at the laboratory for two hours and “unable to urinate.”
Cynthia’s primary point on appeal is based on the court’s review of her letter to Anna. Cynthia states her attorney, Mr. Wilson, asked her to “make notes” on the history of the relationship between Anna, Brian, and Cynthia, and to “document any notable event up to the present time.” Cynthia states the letter was actually the “documentation” requested by her attorney, and she gave it to Anna “as part of the court requirement of disclosure.” Cynthia states the court misinterpreted the letter as criticizing and condemning Anna. Cynthia asserts she never discussed her religious beliefs with Anna, and she was never judgmental toward Anna because “all the statements [in the letter] were factual and true. The letter only documented the history of events.”
“[The letter] was not hateful, because I feel no hate towards Anna. Criticizes? Facts are facts; not liking something that someone does to someone else is not criticizing. Documenting hurtful events is not criticizing, especially if the behavior is illegal. Condemn? How could one letter touch on every aspect of Anna’s life? The letter did not contain any statements regarding her religious beliefs, her political choice, her occupation, her financial status, her intelligence, physical appearance, choice of friends, or her at all. The only statements were in regards to the actions or choices she made that hurt other people.”
Cynthia insists she never “harped or condemned” Anna, but only “stated the facts” in the letter. She did not call Anna evil, but the letter only “documented true events that took place.”
Cynthia objects to the court’s order for her to attend counseling because of the contents of the letter:
“No one has the right to tell someone what they can write. What they do with what they write is another story. The letter was first given to my attorney I told him that the letter really wasn’t for Anna, I explained to him it was a history of events that I documented for him and I put it in letter form. I asked if Anna should have a copy, but I did not get an answer.
“On the day of the first court hearing I gave it to her. I may have shown poor judgment in giving it to Anna, I can accept that, but making a wrong decision does not warrant state licensed counseling. If that was the case everyone in the world would be required to receive counseling, including counselors and judges.”
Cynthia asserts the court’s reliance upon the letter showed it was biased and prejudiced against her. Nevertheless, Cynthia declares the letter documented actual facts about the case—that Anna attempted suicide and tried to kill Brian on numerous occasions—and asserts the letter offered facts compared to Anna’s lies in court.
Cynthia also asserts the court’s references about Brian’s status—that he appeared in court under the influence, failed to take the court-ordered drug test, and had absconded—constituted “a slap in the face” because Brian suffers from “serious mental and emotional issues” which were not taken into consideration. Cynthia denies she covered up Brian’s drug use. Cynthia complains the court improperly complimented Anna for getting over the “‘rough patches’” in her life, being able to work, care for the child, and appear in court:
“Rough patches, this is justification for Anna’s extreme violent behavior? Sometimes these rough patches in a person’s life are brought on by their own doing, such as using illegal drugs. Is being sober now something we honor a person for? If so I have never drank in my life or used illegal drugs.”
Cynthia objects to the court’s order to pay for Anna’s counseling and babysitting costs, and asserts it is “unjust” to order a grandparent to make such payments.
“… It shifts the responsibility to the victim or to another person that was not responsible for someone else’s behavior. Having to pay for someone else’s bad behavior is a double injustice. Here’s a potential mini scenario: In a criminal case; you have a rapist who raped a woman, he’s caught and brought to court and found guilty. A ruling is made and the victim is ordered to pay for psychiatric therapy for the rapist. Now where would this make sense especially when the victim had nothing to do with the mental problems of the perpetrator?”
Cynthia complains the court’s order to reimburse childcare expenses failed to specify how it reached the particular dollar amount, it should have considered Anna’s receipt of government support, Cynthia should be able to select the daycare provider, and the order failed to consider whether Anna could move away from Bakersfield. Cynthia also complains that an adult parent cannot be ordered to pay for a child’s financial responsibilities pursuant to section 3930.
Cynthia objects to the court’s order not to discuss Anna or certain subjects in the child’s presence, and not to permit other people to have such discussions in the child’s presence, because the court assumed that anything said would be negative, it would be impossible to have a discussion with an 18-month-old child, and the court improperly relied upon the letter in making this ruling. Cynthia also asserts it is unjust to order her to attend counseling since Anna caused the problems in their relationship.
Cynthia notes that Judge Hoover initially heard this case, asserts that Judge Hoover stated “he wanted to continue to preside over future hearings even though[] he knew he would be moved” to the criminal calendar, and declares she would have received a fair trial if she had “waited for Judge Hoover’s recovery.” Cynthia also claims that she gave the letter to Judge Hoover, but that Judge Hoover granted her motion for visitation, and his order showed that Judge Mettler was prejudiced against her. “How can two judges ruling [be] so dramatically different.”
Cynthia’s brief requests the following changes to the trial court’s order: visitation three days a week plus alternate weekends; alternation of the afternoon visitation to evening visitation; an order that Anna cannot move from Bakersfield or Kern County; Anna has to provide Cynthia with her work schedule; Cynthia selects the babysitter or daycare provider; Cynthia provides babysitting in place of a provider; yearly evaluation by a court-appointed agency to determine if adjustments should be made to Cynthia’s visitation schedule; and a “clear plan of recourse if Anna does not comply with the established terms.” Cynthia wants the order to define noncompliance as occurring when Anna fails to have the child available for a scheduled visit, or Anna or her older son harass, threaten, or are abusive to Cynthia. Cynthia also requests this court reinstate Judge Hoover’s original ruling, or grant her a new hearing before Judge Hoover or another judge.
Anna also represents herself on appeal, and also engages in a narrative discussion of the allegations she raised before the trial court, the argument and testimony offered below, and the trial court’s ruling. Anna states that Brian had been returned to prison twice since the last hearing, and he was currently in Wasco State Prison because he refused to attend a drug treatment program.
Anna admits that she previously refused to allow Cynthia to visit the child, but again asserts Cynthia was very hostile and abusive toward her. Anna states she sought a restraining order against Cynthia because of her conduct, but she never included the child within the request and just wanted Cynthia to leave her alone.
Anna also refutes Cynthia’s assertions that the court’s order was biased toward Anna, and notes the court’s order did not favor either party because Anna objects to the court’s decision to allow Cynthia to continue to have visitation based on Cynthia’s verbal statements and the contents of the letter. Anna asserts Cynthia wrote similar letters and made similar statements to her over the course of their relationship. Anna states that she was a nursing student before she met Brian. When they met, Brian had already been in prison five times and had a serious drug problem. Anna and her older son moved in with him, and he was abusive to them. Anna admits she lost custody of her older son because of her drug problem, but she attended parenting and substance abuse classes, submitted negative drug tests, and put her family back together.
Anna also asserts the court had the power under sections 3103 and 3104 to order Cynthia to reimburse her for childcare and other expenses. Anna asserts the order is fair because Brian had never given her any financial support for their child.
In her reply brief, Cynthia sets forth criminal statutes and case law as to perjury, declares that Anna committed perjury in court and in her appellate brief, and further declares she can present evidence to prove Anna’s perjury. Cynthia declares she does not want Anna to be punished for committing criminal perjury but just wants to expose her conduct. Cynthia’s brief includes numerous declarations from individuals which purportedly support her claim that Anna has committed perjury.
In the midst of the perjury argument, Cynthia again declares the letter was written for documentation and not intended for Anna:
“… I give my sincerest apology to [Anna] if the documentation that was prepared for court was hurtful. Establishing reconciliation is in the best interest of my Granddaughter.”
Cynthia also argues the Family Code does not authorize a court to order a grandparent to pay any support for a grandchild.
Amicus Brief
On January 16, 2007, this court received an amicus brief from Ethel Bartlett (Ethel). Ethel is Cynthia’s mother, Brian’s grandmother, and the child’s great-grandmother. Ethel declared she was 82 years old and the pastor of Bethany Ministries Church, where Cynthia worked. Ethel declared she wanted to develop a relationship with her great-granddaughter and share the family’s Norwegian ancestry with her, and it had been “heart breaking” to see what Cynthia had to “endure” to see her grandchild. Ethel declared she had read the entire record, and Anna’s statements about Cynthia were false and slanderous. Ethel declared Cynthia had never been verbally abusive or hostile, or told Anna that she would burn in hell.
Ethel declared she was present during Judge Hoover’s hearing and he could tell Anna’s behavior and credibility were very questionable.
“… I heard Judge Hoover say to [Anna], and these are his exact words, ‘If I find out that you are doing this out of spite, I will flush you out and drop you like a quail.’”
The instant record lacks any such statements from Judge Hoover.
Ethel declared Judge Mettler improperly relied on Cynthia’s letter in her ruling, and further declared Cynthia wrote the letter for “documentation” and gave it to her attorney. Ethel included 19 exhibits in the amicus brief, consisting of letters submitted from various individuals attesting to Cynthia’s good character.
On January 18, 2007, this court filed an order that it would receive but not file Ethel’s brief.
“… The brief does not comply with the applicable rules of court and appears to be an attempt to present evidence to the appellate court that was not presented to the trial court. As a general rule, if evidence was not presented to the trial court, it is disregarded by the Court of Appeal. (Warren-Guthrie v. Health Net (2000) 84 Cal.App.4th 804, 808, fn. 4.) Accordingly, the decision whether to file and consider the brief is deferred until the appeal is decided on the merits.”
DISCUSSION
I.
THE NATURE OF THE APPELLATE RECORD
The parties in the instant appeal represent themselves in propria persona, and have attempted to introduce factual issues on appeal which were not before the superior court. We will thus clarify the nature and extent of the record on appeal.
“A party proceeding in propria persona ‘is to be treated like any other party and is entitled to the same, but no greater consideration than other litigants and attorneys.’ [Citation.] Indeed, ‘“the in propria persona litigant is held to the same restrictive rules of procedure as an attorney.”’ [Citation.]” (First American Title Co. v. Mirzaian (2003) 108 Cal.App.4th 956, 958, fn. 1.)
Appealed judgments and orders are presumed correct, and the appellant bears the burden of affirmatively showing error by an adequate record. (Amato v. Mercury Casualty Co. (1993) 18 Cal.App.4th 1784, 1794; Hernandez v. California Hospital Medical Center (2000) 78 Cal.App.4th 498, 502.) A claim of legal error unsupported by authority is waived. (Lester v. Lennane (2000) 84 Cal.App.4th 536, 594.) In addition, a reviewing court may not consider contradictory explanations a party makes for the first time on appeal. (See, e.g., Lucas v. Santa Maria Public Airport Dist. (1995) 39 Cal.App.4th 1017, 1028.) Moreover, we need not consider new issues raised for the first time in a reply brief in the absence of good cause. (Reichardt v. Hoffman (1997) 52 Cal.App.4th 754, 766; In re Marriage of Ackerman (2006) 146 Cal.App.4th 191, 214.)
An appeal reviews the correctness of a judgment as of the time of its rendition, upon a record of matters which were before the trial court for its consideration. (In re James V. (1979) 90 Cal.App.3d 300, 304.) “As a general rule, documents not before the trial court cannot be included as a part of the record on appeal.” (Doers v. Golden Gate Bridge etc. Dist. (1979) 23 Cal.3d 180, 184, fn. 1.) “[T]he function of an appellate court, in reviewing a trial court judgment on direct appeal, is limited to a consideration of matters contained in the record of trial proceedings, and that ‘[m]atters not presented by the record cannot be considered on the suggestion of counsel in the briefs.’” (People v. Merriam (1967) 66 Cal.2d 390, 396-397, fn. omitted, overruled on other grounds in People v. Rincon-Pineda (1975) 14 Cal.3d 864, 882; see also Amato v. Mercury Casualty Co., supra, 18 Cal.App.4th at p. 1795.) Matters referred to in an appellate brief that are not a proper part of the record on appeal may be stricken. (See, e.g., C.J.A. Corp. v. Trans-Action Financial Corp. (2001) 86 Cal.App.4th 664, 673.)
Thus, matters not presented to the trial court are not a proper part of the record on appeal and will not be considered by an appellate court. (People v. Chi Ko Wong (1976) 18 Cal.3d 698, 711, overruled on other grounds in People v. Green (1980) 27 Cal.3d 1, 33-34.) We cannot consider unsubstantiated factual allegations made in appellate briefs, permit augmentation of the appellate record with matters that were not before the superior court, or make any factual findings outside the appellate record. (In re James V., supra, 90 Cal.App.3d at p. 304; Kunzler v. Karde (1980) 109 Cal.App.3d 683, 688.)
As applicable to the instant case, Cynthia and Anna represent themselves in propria persona on appeal. Their appellate briefs are in narrative form and repeatedly refer to matters that were not before the superior court, facts not introduced before that court, or factual developments which apparently occurred after the ruling in this case. Moreover, Cynthia’s reply brief raises new arguments, not contained in her opening brief, about Anna’s alleged “perjury.” Her reply brief also contains declarations from various parties which purportedly support her appellate arguments, but which were not before the superior court. We will not consider any exhibits or factual claims in the parties’ briefs that were not before the superior court since such matters are not a proper part of the record on appeal. In addition, we will not consider the new issues raised in Cynthia’s reply brief given the absence of any good cause.
We also note the trial court issued the custody and visitation orders on February 8 and 22, 2006, and Cynthia filed the notice of appeal on March 28, 2006. On April 12, 2006, the court filed the judgment after the hearing on visitation issues, consistent with the February orders. We will liberally construe Cynthia’s notice of appeal to have been timely filed after the judgment in this case, especially since the opposing party has not been misled or prejudiced by the premature filing. (See, e.g., In re Marriage of Macfarlane & Lang (1992) 8 Cal.App.4th 247, 252; Norco Delivery Service, Inc. v. Owens-Corning Fiberglas, Inc. (1998) 64 Cal.App.4th 955, 960-961; Turpin v. Sortini (1982) 31 Cal.3d 220, 224, fn. 2.)
As a separate matter, Ethel, the child’s paternal great-grandmother, has requested to file an amicus brief, also in propria persona, in support of Cynthia’s position in this case. Ethel’s amicus brief includes documentary exhibits that were not before the superior court. This court retains discretion to grant permission to an applicant to file a brief of amicus curiae on appeal. (Cal. Rules of Court, rule 8.200(c); 9 Witkin, Cal. Procedure (2007 supp.) Appeal, § 618, pp. 203-204.) As with appellate briefs, however, this court will not consider matters contained in the amicus brief that were not before the superior court. We hereby grant Ethel’s request to file her amicus brief, but we will not consider the documentary exhibits that were not before the superior court.
With these guidelines in mind, we turn to Cynthia’s appellate issues.
II.
CUSTODY AND VISITATION
Cynthia challenges various aspects of the trial court’s visitation order in this dissolution action. We begin with the statutory framework for custody and visitation issues. “Under California’s statutory scheme governing child custody and visitation determinations, the overarching concern is the best interest of the child. The court and the family have ‘the widest discretion to choose a parenting plan that is in the best interest of the child.’ [Citation.] When determining the best interest of the child, relevant factors include the health, safety and welfare of the child, any history of abuse by one parent against the child or the other parent, and the nature and amount of contact with the parents. [Citation.]” (Montenegro v. Diaz (2001) 26 Cal.4th 249, 255, fn. omitted.)
The court must look to all the circumstances bearing on the best interests of the minor children in determining custody and visitation. (In re Marriage of Burgess (1996) 13 Cal.4th 25, 31-32; In re Marriage of Loyd (2003) 106 Cal.App.4th 754, 758-759.) Visitation is a limited form of custody that operates during the time the visitation rights are being exercised. (In re Marriage of Gayden (1991) 229 Cal.App.3d 1510, 1517; Barkaloff v. Woodward (1996) 47 Cal.App.4th 393, 398.)
“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. We are required to uphold the ruling if it is correct on any basis, regardless of whether such basis was actually invoked. [Citation.]” (In re Marriage of Burgess, supra, 13 Cal.4th at p. 32; see Montenegro v. Diaz, supra, 26 Cal.4th at p. 255.)
As a reviewing court “‘... our power begins and ends with a determination as to whether there is any substantial evidence to support [the trial court’s findings]; ... we have no power to judge ... the effect or value of the evidence, to weigh the evidence, to consider the credibility of the witnesses, or to resolve conflicts in the evidence or in the reasonable inferences that may be drawn therefrom.’” (In re Marriage of Martin (1991) 229 Cal.App.3d 1196, 1200.) The testimony of a single witness, even that of the party, may be sufficient to constitute substantial evidence. (In re Marriage of Mix (1975) 14 Cal.3d 604, 614.) However, the trier of fact is not required to believe uncontradicted evidence. (Sprague v. Equifax, Inc. (1985) 166 Cal.App.3d 1012, 1028.)
On appeal, we view the evidence most favorably to respondent. Evidence will be disregarded for credibility reasons only if it is implausible or “inherently improbable” so that no reasonable person could believe the testimony. (Evje v. City Title Ins. Co. (1953) 120 Cal.App.2d 488, 492.) The testimony of a witness does not become inherently improbable or implausible solely because it is uncorroborated or contradicted by the testimony of other witnesses. (Beck Development Co. v. Southern Pacific Transportation Co. (1996) 44 Cal.App.4th 1160, 1204-1205) We review any questions of law de novo. (Bono v. Clark (2002) 103 Cal.App.4th 1409, 1421.)
Cynthia has filed an appeal from the court’s orders in this case but has not specifically challenged the court’s decision to grant Anna sole legal and physical custody of the child. Indeed, the court’s custody decision is supported by the overwhelming weight of the evidence in this case. The undisputed record demonstrates that Brian has been an absentee father during the entirety of the child’s life. When he was released from prison, he filed various OSC’s and motions to obtain custody of the child. When he appeared in court, both his attorney and a deputy sheriff noticed that he seemed to be under the influence of a controlled substance. The court called a brief recess and asked the deputy to speak with Brian. The deputy advised the court that Brian appeared to be under the influence. Brian’s attorney waived his presence and the hearing continued, but the court ordered Brian to immediately submit to a drug test. At the next hearing, Brian’s attorney advised the court that Brian failed to comply with the drug test order and no one had seen Brian for three weeks.
In contrast, Anna testified she previously had a drug problem and lost custody of her son. She went through court-ordered parenting and treatment programs, she had been clean and sober since approximately March 12, 2002, and she regained custody of her son. She still had a sponsor and occasionally attended support meanings. Anna testified Brian was still using methamphetamine and heroin, she threw him of out her house when she found drug paraphernalia in his belongings, Cynthia refused to admit Brian had a drug problem, and Brian refused to address his serious drug problem.
While Cynthia has not challenged the court’s custody ruling, she attacks the court’s findings in support of that ruling. She asserts the court’s findings as to Brian’s present status was “a slap in the face,” and the court improperly complimented Anna for getting over the “‘rough patches’” in her life since “these rough patches in a person’s life are brought on by their own doing, such as using illegal drugs. Is being sober now something we honor a person for?” In granting sole custody to Anna, however, the court properly relied upon the undisputed evidence of Brian’s current status—that a deputy advised the court that Brian appeared under the influence at the hearing, Brian failed to comply with the court’s order to immediately submit to a drug test, and Brian had disappeared in the three weeks between the two hearings and essentially abandoned his OSC for custody and visitation. Such facts were pertinent to the court’s custody ruling. As for Anna, the court relied on the undisputed evidence of her sobriety and compliance with previous orders to attend treatment and parenting classes that she regained custody of her older child, she was employed, and she was trying to keep her own family together. Indeed, Cynthia never disputed Anna’s sworn testimony that she had been clean and sober since 2002, and there is no evidence that Anna was not a fit parent at the time of these dissolution hearings. (See, e.g., Kyle O. v. Donald R. (2000) 85 Cal.App.4th 848, 863-864.) We thus conclude the court did not abuse its discretion when it granted Anna sole legal and physical custody of the child, and there is overwhelming evidence to support the court’s factual findings on this issue.
III.
GRANDPARENT VISITATION
We next turn to Cynthia’s primary issue in this case—the nature, extent, and conditions imposed by the court when it granted her request for visitation with her grandchild. We must examine the specific statutory schemes for grandparent visitation.
The due process clause protects the fundamental right of custodial parents to make decisions concerning the care, custody, and control of their children. (Troxel v. Granville (2000) 530 U.S. 57, 65-66 (Troxel).) “[A] presumption exists that fit parents act in the best interests of their children. [Citations.]” (Punsly v. Ho (2001) 87 Cal.App.4th 1099, 1109 (Punsly).) Troxel held that a Washington statute, under which grandparents were given visitation over the parent’s objection, was unconstitutional as applied, since the trial court gave no special weight to the parent’s determination of her daughters’ best interest and thus violated the parent’s fundamental constitutional right to make decisions for her children. (Troxel, supra, 530 U.S. at pp. 69-70.) “Troxel essentially affirmed the cardinal rule, as stated by the Supreme Court, ‘“that the custody, care and nurture of the child reside first in the parents, whose primary function and freedom include preparation for obligations the state can neither supply nor hinder.”’ [Citations.] ‘Encompassed within [this] well-established fundamental right of parents to raise their children is the right to determine with whom their children should associate. [Citation.]’ [Citation.]” (Punsly, supra, 87 Cal.App.4th at p. 1107.)
Thus, a court may not disregard and overturn the decisions of fit custodial parents whenever a third party affected by the decision files a visitation petition. (Troxel, supra, 530 U.S. at pp. 67-68; Punsly, supra, 87 Cal.App.4th at pp. 1106-1107; Hogoboom & King, Cal. Practice Guide: Family Law (The Rutter Group 2007) ¶ 7:501.1, p. 7-197 to 7-198.) As to grandparents, however, a court is not precluded from granting visitation over the objection of a “fit” parent. (Hogoboom & King, Cal. Practice Guide: Family Law, supra, ¶ 7:501.1e, p. 7-198.) “The decision of fit parents regarding grandparent visitation is entitled to special weight, but not necessarily immunity from judicial review.” (Fenn v. Sherriff (2003) 109 Cal.App.4th 1466, 1485 (Fenn).)
A court does not have any inherent jurisdiction or equitable power to entertain a nonparent’s visitation request. (Hogoboom & King, Cal. Practice Guide: Family Law, supra, ¶ 7:511.10, p. 7-205.) Instead, “[g]randparents’ rights to court-ordered visitation with their grandchildren are purely statutory. [Citation.] Three California statutes expressly address grandparent visitation: Family Code section 3102, which permits visitation by a deceased parent’s children, siblings, parents, and grandparents if such visitation would be in the best interests of the child; section 3103, which permits a court in specified proceedings involving the custody of a child to grant grandparent visitation; and section 3104, which permits grandparents to petition for visitation if the grandchild’s parents are not married or if certain other conditions are met.” (In re Marriage of Harris (2004) 34 Cal.4th 210, 219-220, fns. omitted (Harris).)
We thus turn to these three statutory schemes and their potential application to the grandparent’s petition for visitation in this case. Section 3102 does not apply in this case because it only addresses situations where grandparents and certain other relatives file petitions for visitation when one of the children’s parents is deceased. (See, e.g., Harris, supra, 34 Cal.4th at p. 220; Fenn, supra, 109 Cal.App.4th at pp. 1473-1474.)
Anna asserts section 3104 applies in this case. However, section 3104 is inapplicable to the instant case because it addresses a grandparent’s petition for visitation if the child’s parents are not married or are living separately or if certain other conditions apply. (Harris, supra, 34 Cal.4th at pp. 220-221; § 3104, subd. (b).) “‘[S]ection 3104 closes a gap in prior law under which grandparents had no avenue to obtain court-granted visitation unless one of the parents had died or a marital action between the parents was before the court.’ [Citation.]” (Fenn, supra, 109 Cal.App.4th at p. 1475, fn. 3.) “Under section 3104, the court may order grandparent visitation when both parents are living (unlike § 3102), and when no custody proceeding is pending (unlike § 3103).” (Fenn, supra, 109 Cal.App.4th at p. 1475, fn. omitted.) Section 3104 does not apply to a grandparent’s petition filed in the course of marriage dissolution proceedings before a judgment awarding custody has been entered. (Harris, supra, 34 Cal.4th at p. 223.) “[O]nce a judgment dissolving the marriage and awarding custody of the child has been entered, the provisions of section 3104 would govern whether the grandparents should be granted visitation.” (Harris, supra, 34 Cal.4th at p. 222.) “The provisions of section 3104 thus come into play once a judgment dissolving the marriage and determining custody of the child has been entered.” (Ibid.)
We thus turn to section 3103, which states in pertinent part:
“(a) Notwithstanding any other provision of law, in a proceeding described in Section 3021, the court may grant reasonable visitation to a grandparent of a minor child of a party to the proceeding if the court determines that visitation by the grandparent is in the best interest of the child.” (Italics added.)
When a grandparent petitions for visitation in the course of a dissolution proceeding, “[t]here is a rebuttable presumption affecting the burden of proof that the visitation of a grandparent is not in the best interest of a minor child if the child’s parents agree that the grandparent should not be granted visitation rights.” (§ 3103, subd. (d), italics added.) If a protective order “has been directed to the grandparent during the pendency of the proceeding, the court shall consider whether the best interest of the child requires that visitation by the grandparent be denied.” (§ 3103, subd. (b).)
Section 3103 permits a grandparent to be “joined as a ‘party’ in a marital dissolution proceeding to seek custody of, or visitation with, a grandchild. [Citations.]” (In re Marriage of Perry (1998) 61 Cal.App.4th 295, 304 (Perry).) “When a dissolution, legal separation or other proceeding in which custody/visitation issues may be raised is properly before the court [citation], a nonparent may be heard by joinder in the action on the visitation claim. [Citations.]” (Hogoboom & King, Cal. Practice Guide: Family Law, supra, ¶ 7:510.1, p. 7-204, italics omitted.) “The apparent purpose of section 3103 is to permit a court to grant grandparent visitation during the pendency of certain judicial proceedings involving custody of the child. This permits the court in a marriage dissolution action ... to consider grandparent visitation when fashioning its custody and visitation order.” (Harris, supra, 34 Cal.4th at p. 222.) “[I]n marriage dissolution proceedings, the Legislature intended section 3103 to govern grandparent visitation only until entry of a judgment dissolving the marriage and awarding custody of the child.” (Ibid.)
We note that at an early stage in this case, the court curiously stated that Cynthia’s visitation rights were “derivative” through Brian while he was in prison and unavailable to assert his own right to custody and/or visitation, and that her petition for joinder might become void when Brian was released from prison and capable of reasserting his own custody and visitation rights. However, Cynthia had the independent statutory ability to file a petition under section 3103 for visitation in the course of the underlying dissolution action, regardless of Brian’s status. In ruling upon a grandparent’s petition under section 3103, the court must consider the best interests of the child. The court is not bound by any type of legal fiction that a grandparent has a right to visitation that is derivative through the parent. Brian could not simply delegate his visitation to Cynthia. Different standards apply to parent visitation than to grandparent visitation. (Cf. § 3020, subd. (b) [parent] with §§ 3103 & 3104 [grandparent].) These standards cannot be evaded through the legal fiction of derivative visitation rights. Moreover, in deciding visitation issues, the trial court’s evaluation of the best interests of the child necessarily must include an evaluation of the person to be visited. The trial court could no more allow Brian to “delegate” his right to visit to Cynthia, than it could allow the child to “delegate” her right to be visited. (See, e.g., Punsly, supra, 87 Cal.App.4th at p. 1106, fn. 6; Hogoboom & King, Cal. Practice Guide: Family Law, supra, ¶ 7:512.1, pp. 7-205 to 7-206.)
Thus, Cynthia’s petition for joinder, and the court’s ruling on her motion for visitation, was based upon the statutory guidelines of section 3103. There is a rebuttable presumption that such visitation is not in the child’s best interests if the child’s parents object to the grandparent’s petition. (§ 3103, subd. (d).) The rebuttable presumption does not apply in this case, however, because there is no evidence that the child’s parents objected to Cynthia’s petition for visitation. (Harris, supra, 34 Cal.4th at p. 221.) Brian clearly concurred with Cynthia’s petition during the limited period that he was involved in this case. Anna initially permitted Cynthia to visit the child, and admitted she subsequently refused to cooperate because she was upset about Cynthia’s repeated demands for more time with the child, and Cynthia’s telephone calls and statements to her. In the course of these proceedings, however, Anna repeatedly advised the court, and testified under oath, that she did not object to the court issuing a visitation order for Cynthia, she wanted the child to have a relationship with her grandmother, and she just wanted visitation to be reasonable, fit her own work schedule, and not interfere with her own limited time with her two children after work.
While the rebuttable presumption does not apply, section 3103 vests the court with discretion to grant a grandparent “reasonable visitation” with a grandchild if the court determines such visitation “is in the best interest of the child.” (§ 3103, subd. (a); Hogoboom & King, Cal. Practice Guide: Family Law, supra, ¶ 7:521, p. 7-212.) The court herein granted Cynthia visitation with the child for up to two evenings a week when Anna was working, from 5:00 p.m. to 8:00 p.m. The court stated it would be “very suspicious” if Anna’s work schedule changed to eliminate her evening shifts. If that happened, Cynthia would have visitation on Tuesdays and Thursdays, from 5:00 p.m. to 8:00 p.m., and on Saturdays and Sundays when Anna was working. The court ordered Cynthia to provide all transportation for the exchanges.
The court’s visitation schedule was entirely reasonable given the circumstances of this case. However, Cynthia demands this court to modify the schedule, or remand for further proceedings, so she receives visitation three days a week plus alternate weekends, and change the afternoon schedule to evening visits. The court did not abuse its discretion in setting the grandparent’s visitation schedule to fit Anna’s work schedule. As explained ante, a grandparent’s right to visitation is purely statutory, as compared against a parent’s constitutionally protected interest in the care, custody, and control of a child. (Harris, supra, 34 Cal.4th at pp. 219-220.) Section 3103 grants the court the discretion to order “reasonable” visitation. (§ 3103, subd. (a).) Cynthia cannot specify the amount and timing of visitation. Indeed, the court’s order recognized the importance of ensuring the grandparent’s visitation schedule did not interfere with the mother’s own time with her family. A visitation order which interfered with a parent’s time with her child would have violated parental rights guaranteed by the due process clause, and would not have passed constitutional muster. (See, e.g., Troxel, supra, 530 U.S. at pp. 74-75 ; Kyle O. v. Donald R., supra, 85 Cal.App.4th at pp. 851, 863-864; Fenn, supra, 109 Cal.App.4th at pp. 1477-1478, 1483-1484; Zasueta v. Zasueta (2002) 102 Cal.App.4th 1242, 1254-1255.)
Cynthia contends the court should have issued an order that Anna could not move from Bakersfield or Kern County. The court lacked jurisdiction to issue such an order in this case. There is no evidence that Anna was going to move from the area, and the issue was not before the court. In addition, section 3103, subdivision (f) states: “Visitation ordered pursuant to this section shall not create a basis for or against a change of residence of the child, but shall be one of the factors for the court to consider in ordering a change of residence.” Moreover, “[t]he law is well settled as to how a court is to proceed when a parent with sole custody seeks to move away and take the child. In a sole custody case, the changed circumstance rule governs. The rule provides that a parent who is entitled under a final custody determination to sole physical custody of a child has a right to change the child’s residence, subject to a court’s power to preclude a removal that would prejudice the child’s rights or welfare. [Citation.] In the sole custody situation, the custodial parent is not required to show the move away is imperative; rather, the objecting noncustodial parent must show that a change in custody is ‘“‘essential or expedient for the welfare of the child’”’ or, in other words, that the move would be detrimental to the child. [Citations.]” (Niko v. Foreman (2006) 144 Cal.App.4th 344, 363, citing In re Marriage of Burgess, supra, 13 Cal.4th at p. 38.)
Cynthia asserts that Anna should have been ordered to provide Cynthia with her work schedule. Cynthia fails to explain why she needed this information. In any event, the court’s order specifically stated that it would be suspicious if Anna’s evening work shift suddenly changed, and provided for an alternate visitation schedule if that happened.
Cynthia also asserts the court should have appointed an expert to evaluate the situation and determine if adjustments should be made to Cynthia’s visitation schedule, presumably in Cynthia’s favor. A court has discretion to appoint an expert to address visitation issues. However, the court is not obliged to appoint an expert to assist it in making a factual determination unless it appears to the court that expert evidence is required. (Evid. Code, § 730; In re Eric A. (1999) 73 Cal.App.4th 1390, 1394, fn. 4.) Cynthia did not request appointment of an expert, and there is nothing in the record to reflect that expert evidence was required to assist the court in making the custody and visitation order in this case.
Cynthia further asserts the court’s order should have defined “noncompliance” as when Anna failed to have the child available for a scheduled visit, or Anna or her older child harassed, threatened, or were abusive toward Cynthia, and the court should have set forth a “clear plan of recourse if Anna does not comply with the established terms.” The court ordered for Cynthia to have visitation with the child on specific dates and times. It is implicit in such an order that Anna is required to comply with the court’s visitation schedule, such that Cynthia could file the appropriate petition or OSC based upon alleged noncompliance or violation of the visitation schedule. Indeed, the court provided for an alternate visitation schedule if Anna’s work hours changed, and noted that it would be skeptical of any sudden modification of Anna’s work schedule.
As for Cynthia’s additional definitions of “noncompliance,” the court was not required to anticipate all possible situations that might arise in this case. Indeed, Cynthia has peppered her opening and reply briefs with various factual allegations that were not before the superior court, and which will not be considered by this court on appeal. However, the superior court retains jurisdiction to modify the visitation order upon a showing of changed circumstances, and Cynthia may file the appropriate petition if supported by factual allegations. (Harris, supra, 34 Cal.4th at p. 222.)
Cynthia repeatedly argues, throughout her appellate briefs, that her retained counsel failed to present certain evidence or ignored her requests to address the court, and essentially blames counsel for any evidentiary lapses in this case. We note the instant dissolution case is a civil matter and Cynthia cannot raise ineffective assistance of her privately-retained attorney as an assignment of error on appeal. (See, e.g., In re Ammanda G. (1986) 186 Cal.App.3d 1075, 1078.) We note that a grandparent only has a statutory right to request visitation subject to the court’s discretion. (Harris, supra, 34 Cal.4th at pp. 221-222.) The entirety of the record reflects Mr. Wilson ably represented Cynthia and successfully moved for her joinder in the dissolution action, which resulted in the court’s order for her to obtain visitation with her grandchild.
We thus conclude the court did not abuse its discretion when it established the visitation schedule in this case. Cynthia may seek modification of the visitation order by alleging noncompliance or a significant change of circumstances as such issues may develop. (See, e.g., In re Marriage of Brown & Yana (2006) 37 Cal.4th 947, 956.)
Once a judgment has been entered which dissolves the marriage and awards sole custody of the child to one parent, a grandparent’s request for visitation may be governed by section 3104. (Harris, supra, 34 Cal.4th at p. 223.) In such a case, section 3104 requires there be “a preexisting relationship between the grandparent and the grandchild that has engendered a bond such that visitation is in the best interest of the child,” directs the court to balance “the interest of the child in having visitation with the grandparent against the right of the parents to exercise their parental authority,” and creates a rebuttable presumption against visitation if the parent with sole custody objects. (§ 3104, subds. (a)(1), (2), (f); Harris, supra, 34 Cal.4th at pp. 223, 227.) As to the instant case, once the final order is issued, it is not clear whether a subsequent motion for modification of grandparent visitation would be considered part of the initial dissolution proceeding and thus subject to section 3103, or an independent petition under section 3104. We need not address this issue since it is not before this court.
IV.
THE COURT’S COUNSELING AND BABYSITTING ORDERS
Cynthia challenges several conditional aspects of the court’s visitation order: that Cynthia attend counseling, Cynthia pay counseling expenses for Anna and herself, and Cynthia pay Anna’s babysitting or daycare expenses for the child. Cynthia asserts that such orders amount to child support, and she cannot be ordered to pay the support expenses of her adult son. Cynthia also asserts that she should be entitled to select the child’s babysitter, or provide babysitting herself when Anna is at work.
A. The Counseling Order
Cynthia asserts the court improperly ordered her to attend counseling as a condition of receiving visitation with the child. Cynthia argues Anna was responsible for all the conflicts and problems, and she should not have to attend counseling simply to deal with Anna’s difficulties. As explained ante, Cynthia filed a motion for joinder in the ongoing dissolution action between Brian and Anna. The court granted the motion, joined Cynthia in the case, and granted her request for visitation pursuant to section 3103, finding it was in the child’s best interest to have visitation with her grandmother. Cynthia thus became a party to the dissolution action and obtained the court’s order to receive visitation.
The court had discretion under section 3190 to order Cynthia, as a party to a custody and visitation dispute, to attend counseling as a condition of receiving visitation. (See, e.g., In re Chantal S. (1996) 13 Cal.4th 196, 205.) Section 3190 states in pertinent part:
“(a) The court may require parents or any other party involved in a custody or visitation dispute, and the minor child, to participate in outpatient counseling with a licensed mental health professional, or through other community programs and services that provide appropriate counseling, including, but not limited to, mental health or substance abuse services, for not more than one year, provided that the program selected has counseling available for the designated period of time, if the court finds both of the following:
“(1) The dispute between the parents, between the parent or parents and the child, between the parent or parents and another party seeking custody or visitation rights with the child, or between a party seeking custody or visitation rights and the child, poses a substantial danger to the best interest of the child.
“(2) The counseling is in the best interest of the child.” (Italics added.)
As applicable to the instant case, the court granted Cynthia’s petition for visitation with the child, found such visitation was “marginally” in the child’s best interests, and reserved the right to modify the visitation order if certain conduct continued. In recognition of the conflicts and tension between Cynthia and Anna, the court ordered Cynthia to enroll and attend counseling as a condition of visitation, Anna to attend anger management and parenting classes, and Cynthia to pay the expenses for all such counseling.
Cynthia asserts there is no evidence she should attend counseling, and the court improperly placed blame upon her for the conflict with Anna. However, the record contains overwhelming evidence about the extreme emotional tension between Cynthia and Anna. The court heard testimony and argument as to which party was responsible for the conflicts in this case, and the court’s order reflects it found Anna’s allegations about Cynthia’s conduct to be credible, primarily based upon the existence and contents of Cynthia’s letter to Anna. The court relied on Cynthia’s heated and emotional statements in that letter when it ordered Cynthia to attend counseling and not to make disparaging remarks against Anna in the child’s presence.
We will address the court’s order against disparaging remarks in section V, post.
Cynthia argues the court misinterpreted the letter and improperly relied upon the contents as the basis for the counseling order and other aspects of the visitation conditions. Cynthia asserts she did not write the letter with the intent to deliver it to Anna, but instead composed it as “documentation” of her prior relationship with Anna, at her attorney’s request, and turned it over to Anna prior to the December 5, 2005 hearing as part of discovery in the case. Cynthia contends the court misinterpreted the letter as criticizing and condemning Anna, she was not judgmental toward Anna, the letter was not hateful because she merely documented true facts about Anna’s past conduct—such as Anna’s alleged attempts to kill Brian—and Cynthia could not be blamed if Anna made choices in life which were hurtful to other people.
Cynthia’s appellate attempts to explain the circumstances of the letter are refuted by the entirety of the record. We note that when Anna advised the court about this letter, Cynthia’s counsel acknowledged such a document existed and presented a copy to the court. Counsel never refuted Anna’s declaration that Cynthia gave her a “letter,” advised the court that the document was produced at his request for the purpose of the dissolution proceedings, or said it had just been exchanged in the course of discovery. Moreover, the letter itself refutes Cynthia’s belated claim that it merely consisted of “documentation” of her relationship with Anna. It begins “Anna,” and it is clearly written to Anna, with the expectation that the reader would be Anna rather than Cynthia’s attorney. The letter barely mentions the pending custody dispute and instead addresses their past relationship, Cynthia’s harshly negative opinion of Anna’s past conduct, and accuses Anna of being responsible for Brian’s drug problems.
Cynthia insists the letter simply documents facts about Anna’s prior actions, and she cannot be blamed if Anna’s conduct was improper or hurtful toward others. In making such an argument, Cynthia essentially concedes the superior court’s description of the letter as Cynthia’s attempt to impose her own views on other people. As explained ante, we defer to the superior court’s factual and credibility findings if supported by substantial evidence. The court criticized some aspects of Anna’s conduct in this case and also ordered Anna to attend counseling to deal with her own anger at Cynthia and Brian, but found Anna credible as to the reasons for her problems with Cynthia and the court’s factual findings are supported by substantial evidence. While the court declined to grant Anna’s complaint for civil harassment, it denied the request without prejudice to reconsider the situation, and also reconsider the visitation order, if Cynthia’s negative conduct toward Anna continued.
We thus conclude the court had the statutory authority to order Cynthia to attend counseling as a condition of receiving visitation, and the court did not abuse its discretion when it ordered counseling based on Cynthia’s prior conduct toward Anna, and that such counseling was in the child’s best interests to facilitate visitation.
B. Payment of Counseling Expenses
Cynthia next contends the court improperly ordered her to pay the counseling expenses for Anna and herself, and argues a grandparent cannot be ordered to pay child support to a grandchild or a parent.
“A grandparent generally has no legal duty to support a grandchild. (§ 3930 [‘A parent does not have the duty to support a child of the parent’s child.’]; cf. § 3951, subd. (a) [‘A parent is not bound to compensate the other parent, or a relative, for the voluntary support of the parent’s child, without an agreement for compensation.’].)” (Perry, supra, 61 Cal.App.4th at p. 312.) In turn, grandchildren have no support rights against their grandparents, even if their parents are still minors. (§ 3930; Hogoboom & King, Cal. Practice Guide: Family Law, supra, ¶ 6:18.10, p. 6-26.3.)
As explained ante, section 3190, subdivision (a) authorized the court to order Cynthia and Anna to attend counseling as part of the visitation order. Section 3190, subdivision (c) states:
“Subject to Section 3192, if the court finds that the financial burden created by the order for counseling does not otherwise jeopardize a party’s other financial obligations, the court shall fix the cost and shall order the entire cost of the services to be borne by the parties in the proportions the court deems reasonable.”
Section 3192 addresses a court’s order for parents to attend counseling when there has been a history of abuse by either parent against the other, or the child.
Section 3103 creates a very narrow statutory exception to the rule that grandparents are not obliged to support a grandchild, in situations when the grandparent is awarded visitation under section 3103. (Perry, supra, 61 Cal.App.4th at p. 312; Hogoboom & King, Cal. Practice Guide: Family Law, supra, ¶ 6:18.11, p. 6.26.3.) Section 3103, subdivision (g) provides in pertinent part:
“(g) When a court orders grandparental visitation pursuant to this section, the court in its discretion may, based upon the relevant circumstances of the case:
“(1) Allocate the percentage of grandparental visitation between the parents for purposes of the calculation of child support pursuant to the statewide uniform guideline ....
“(2) Notwithstanding Sections 3930 and 3951, order a parent or grandparent to pay to the other, an amount for the support of the child or grandchild. For purposes of this paragraph, ‘support’ means costs related to visitation such as any of the following:
“(A) Transportation.
“(B) Provision of basic expenses for the child or grandchild, such as medical expenses, day care costs, and other necessities.”
Perry extensively addressed the type of costs which the court may order against a grandparent under section 3103, subdivision (g).
“As section 3103, subdivision (g) defines ‘costs related to visitation’ in illustrative terms only, it must be construed to cover expenses other than, but similar to, those specifically identified in the section. [Citation.] However, by specifying a court may ‘order a parent or grandparent to pay to the other’ (italics added) ‘costs related to visitation,’ and by providing the examples contained in the statute, the Legislature has expressed an intent that the costs must be incurred either to facilitate the visitation or during the visitation, and that the burden to pay these costs may be allocated based on the respective financial abilities and needs of the parent and grandparent.
“For example, visitation requires transportation either of the grandchild to the grandparent or vice versa. The statute obviously authorizes the court to order the parent or grandparent to provide this transportation or to reimburse the other person for the cost of transportation provided by the other person. Visitation ordinarily requires the expenditure of money for the grandchild’s basic necessities, such as food. Depending again on respective financial abilities and needs, the statute authorizes the court to allocate all or a portion of such expenses to either the parent or grandparent. The same principle applies to medical expenses incurred during visitation (e.g., if the grandchild is injured while playing during visitation with a grandparent, all or a portion of the cost of medical expenses can be allocated to either the parent or grandparent) or day-care costs necessarily incurred as a result of the visitation when the parent and grandparent work.
“Such is the case with any other ‘basic expenses’ and ‘necessities’ (§ 3103, subd. (g)(2)(B)) which are related to visitation between a grandparent and grandchild by either facilitating the visitation or occurring during the visitation. Applying the common meaning to these terms, ‘basic expenses’ and ‘necessities’ mean costs which are an essential, i.e., indispensable, condition of the visitation. (Oxford English Dict., supra, p. 689; Webster’s New Internat. Dict., supra, pp. 181, 777.)” (Perry, supra, 61 Cal.App.4th at pp. 312-313.)
In Perry, the trial court granted visitation to the grandmother under section 3103, subdivision (a), but ordered her to pay “‘all accrued costs of counseling’” provided by a therapist to the grandchild, as well as the future cost of counseling as recommended by the therapist, or until further order of the court. (Perry, supra, 61 Cal.App.4th at p. 312.) Perry noted that therapy costs might be permissible under section 3103, subdivision (g) under certain circumstances, but not under the facts of the case:
“We can envision circumstances in which counseling may be a cost related to visitation akin to ‘medical expenses’ and other ‘necessities.’ (§ 3103, subd. (g)(2)(B).) The following scenario is an example. Assume that throughout a young child’s life, a parent has wrongly prejudiced the child against a grandparent and has refused to allow the child to see or talk with the grandparent, and that a family law court then determines it is in the best interest of the child to have contact with the grandparent and orders visitation even though it initially may traumatize the young child. In this circumstance, counseling for the child might be necessary to help overcome the trauma and to engender a nurturing relationship between grandparent and grandchild. In other words, counseling might be essential to facilitate the visitation. If so, it would be a cost ‘related to visitation,’ pursuant to section 3103, subdivision (g)(2), which could be allocated to the grandparent or parent depending on their respective needs and financial abilities to pay that cost. We also can envision circumstances in which counseling for a grandchild may become a necessity as a result of a traumatic event which occurs during visitation. If so, it would be a cost related to visitation within the meaning of section 3103, subdivision (g)(2).” (Perry, supra, 61 Cal.App.4th at p. 313.)
The father in Perry argued the child’s counseling was a cost related to visitation “because the child’s emotional problems are attributable in part to grandmother’s efforts to continue and expand her contact with the child.” (Perry, supra, 61 Cal.App.4th at p. 313.) Perry, however, rejected this argument:
“… [The] father points to no evidence which supports his assertion that there is a causal relationship between the child’s visitation with grandmother and his emotional distress. Although the court found grandmother is both an ‘important ingredient in’ her grandchild’s life and a ‘contributing factor to his emotional problems,’ the court was referring to the ‘emotional damage suffered by this child at the hands of the three parties,’ due in part to the prolonged and bitter dispute among father, mother and grandmother over custody.
“Because there is no substantial evidence in the record to support a conclusion that counseling for the child was essential to facilitate visitation with grandmother or to address problems arising during such visitation, the cost of such counseling is not ‘related to visitation’ within the meaning of section 3103, subdivision (g)(2). Consequently, the trial court erred in ordering grandmother to pay ‘all accrued costs of counseling’ which had been provided by [the child’s] therapist, as well as the future cost of counseling as recommended by the therapist or until further order of the court.” (Perry, supra, 61 Cal.App.4th at pp. 313-314.)
As applicable to the instant case, the court found Cynthia’s visitation with the child was “marginally” in the child’s best interests, that it would reconsider the issue if Cynthia continued to display negative conduct toward Anna, ordered Cynthia to enroll and attend counseling as a condition of visitation, Anna to attend anger management and parenting classes, and Cynthia to pay the expenses for all such counseling.
As noted ante, Cynthia asserts the court abused its discretion when it ordered her to attend counseling and pay the various expenses, and asserts such an order constituted a type of penalty on her. As explained in Perry, however, section 3103, subdivision (g) creates an exception to the rule that grandparents are not obliged to pay any type of child support. Section 3103 permits the court to order a grandparent, who has received visitation under that section, to pay “an amount for the support” of the grandchild. (§ 3103, subd. (g)(2).) It further defines such support to mean “costs related to visitation” such as transportation and the provision of the child’s basic expenses, “such as medical expenses, day care costs, and other necessities.” (§ 3103, subd. (g)(2)(A), (B).)
Perry envisioned circumstances when counseling could be a “cost related to visitation akin to ‘medical expenses’ and other ‘necessities.’ [Citations.]” (Perry, supra, 61 Cal.App.4th at p. 313.) Perry described situations where a parent had wrongly prejudiced the child against the grandparent, or the child suffered a traumatic event in the course of visitation, and counseling would be necessary to address the underlying trauma and engender a nurturing relationship between the grandparent and grandchild. (Ibid.) Perry, however, found no substantial evidence that the child suffered trauma from visiting with the grandparent, but instead found the child’s emotional damage occurred “‘at the hands of the three parties,’ due in part to the prolonged and bitter dispute among father, mother and grandmother over custody.” (Id. at p. 314) Perry thus reversed the court’s order for the grandparent to pay the child’s counseling expenses in that case.
The entirety of the record reflects that Cynthia’s repeated and insistent demands for visitation, under the terms and conditions of her own choosing and without any regard to the mother’s wishes or schedule, clearly led to the serious conflicts in this case. The superior court properly ordered Cynthia, as the moving party, to attend counseling and pay her own counseling expenses as a condition of receiving visitation, given her history of disruptive conduct in connection with her visitation demands. As for Anna, the court’s order for her to attend counseling is also supported by the record, but the court improperly ordered Cynthia to pay Anna’s counseling expenses. The court acknowledged Anna’s conduct in this case was likely the result of her immaturity in dealing with her children and various issues in her life but, as in Perry, the court abused its discretion in ordering Cynthia to pay for such counseling.
C. Babysitting Expenses
Cynthia asserts the court abused its discretion when it ordered her to pay Anna $300 a month to reimburse her for the child’s babysitting or daycare expenses, as a condition of visitation. The court’s order, however, was statutorily authorized by section 3103, subdivision (g), since the babysitting and/or daycare expenses were directly related to visitation. The court also limited those expenses to the reasonable amount of $300 per month. Cynthia complains that she should be able to provide free babysitting in the course of the visitation schedule, but fails to acknowledge the court provided for such a situation when it ordered that Cynthia could provide childcare while Anna attended counseling. The court did not abuse its discretion to order Cynthia to pay these expenses.
V.
THE COURT’S ORDER ABOUT DISPARAGING REMARKS
Cynthia next challenges the court’s order that when she has the child in her custody, she cannot make any comments, or permit third parties to make any comments, “that are judgmental, negative, critical, or unkind with respect to the mother. This prohibition includes comments about the state of the mother’s immortal soul or her religious beliefs.” The court clarified Cynthia could not allow others to discuss “the subjects touched on in her letter to the mother, which include, abortion, Wicca, abuse between Brian and the mother, the mother’s clothing, and for what behavior the mother can be prosecuted.” Cynthia asserts such a condition violates her freedom of speech.
Prior restraints on speech “are the most serious and the least tolerable infringement on First Amendment rights.” (Nebraska Press Assn. v. Stuart (1976) 427 U.S. 539, 559.) However, the courts have long recognized a prior restraint may be permissible under certain limited circumstances. (Aguilar v. Avis Rent A Car System, Inc. (1999) 21 Cal.4th 121, 143; Hobbs v. County of Westchester (2d Cir. 2005) 397 F.3d 133, 149.) Parents are routinely ordered not to make disparaging comments about the other parent to the children or in their presence. (In re Marriage of Candiotti (1995) 34 Cal.App.4th 718, 725 (Candiotti).) The court may properly issue orders bearing upon parents’ relationships with their children and with each other. (Ibid.) Such orders are not unconstitutional prior restraints if limited in scope, particularly where there is a strong showing the restrictions serve the child’s best interests. (Ibid.; see also Borra v. Borra (N.J. Super. 2000) 756 A.2d 647, 649; In re Marriage of Olson (Wash.Ct.App. 1993) 850 P.2d 527, 532.)
In Candiotti, the court found parents may be ordered not to make disparaging remarks with their children and each other, but the order in that case “went further, actually impinging on a parent’s right to speak about another adult, outside the presence of the children. Such an order, under these circumstances, constitutes undue prior restraint of speech. It would prevent [the parent] from talking privately to her family, friends, coworkers, or perfect strangers about her dissatisfaction with her children’s living situation.” (Candiotti, supra, 34 Cal.App.4th at p. 725.)
The court herein did not broadly restrain Cynthia from speaking to other people about Anna. Instead, it narrowly restricted her from making disparaging comments about Anna in the child’s presence. The court did not simply create a list of prohibited topics, but simply summarized the areas addressed in Cynthia’s heated and emotional letter to Anna. The court’s order also stated that Cynthia could not allow other people to make such remarks about Anna in the child’s presence. Such an order might seem too broad, except when considered in the context of Cynthia’s letter. The letter clearly reflects that Cynthia repeatedly discussed Anna’s conduct with her friends and acquaintances, and that her friends shared her negative feelings about Anna. Given the contents of the letter, the court’s order did not constitute an improper prior restraint upon Cynthia’s free speech rights.
VI.
REMAND
Cynthia requests this court remand the matter for a new hearing before Judge Hoover or another judge. Cynthia asserts that Judge Hoover wanted to remain on this case despite his reassignment, and that Judge Mettler was prejudiced against her based upon the order’s reliance upon the letter. Cynthia contends that Judge Mettler should not preside over future hearings in this case because of her prejudice.
We first note there is absolutely nothing in the record which supports Cynthia’s assertions that Judge Hoover wanted to continue with the case. The record simply reflects that Judge Mettler convened the subsequent hearing, advised the parties that Judge Hoover was absent for medical reasons, and that he was being reassigned to the criminal calendar
Next, Judge Mettler did not make any biased or prejudicial remarks toward Cynthia during the hearings in this case. Judge Mettler was equally critical of both Cynthia and Anna, ordered both parties to attend counseling to work out their specific issues, and still granted Cynthia’s request for visitation.
Cynthia contends that Judge Mettler’s prejudice was apparent because she declined to swear witnesses and issued her ruling based upon unsworn testimony. Judge Mettler conducted two hearings in this case. On January 23, 2006, Cynthia and Anna were sworn as witnesses and extensively testified as to their positions on the visitation issue. On February 6, 2006, the court essentially heard arguments from Mr. Wilson, representing Cynthia, and Anna, representing herself, on the visitation issue and Anna’s related action for civil harassment. The entirety of the record reflects the trial court did not issue the custody and visitation orders based on any unsworn statements. Instead, the trial court’s order was based upon the sworn testimony at the January 23, 2006 hearing, the parties’ arguments at the February 6, 2006 hearing, and its review of Cynthia’s letter to Anna, which was introduced and marked as an exhibit. Judge Mettler’s conduct of the hearings did not reflect any bias toward Cynthia. (See, e.g., Lester v. Lennane, supra, 84 Cal.App.4th at pp. 568-570.)
Cynthia asserts Judge Mettler is biased against her, and the matter should be remanded to a different judge, based upon Judge Mettler’s discussion of Cynthia’s letter to Anna, as contained in the court’s order. As explained ante, the nature and circumstances of Cynthia’s letter to Anna refutes Cynthia’s appellate claims that it was merely “documentation” for her attorney, that it simply states the facts of her prior relationship with Anna, or that the letter was not harsh or judgmental toward Anna. Judge Mettler’s discussion of this letter, however, nearly matches the emotions contained in the letter itself.
DISPOSITION
The trial court’s order that appellant (Cynthia) pay for respondent’s (Anna’s) counseling expenses is stricken. In all other respects the judgment is affirmed. The parties shall each bear their own costs on appeal.
WE CONCUR: VARTABEDIAN, Acting P.J., KANE, J.