Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 94FL0084
HULL , J.Following dissolution of her marriage to petitioner Donald H. (Father) in 1995 and award of custody of the three minor children of the marriage to Father in 1996, respondent Karen A. (Mother) has made repeated attempts to gain custody and increased visitation with little success. In this latest round of litigation, Father sought an emergency order suspending further contact between Mother and the youngest children, aged 17 and 14, after the 14-year-old was arrested for refusing to accompany Mother to a therapy session. However, rather than grant the requested temporary relief, the trial court modified custody and permanently terminated visitation and therapy unless the children otherwise consent.
On Mother’s appeal, we conclude the trial court exceeded what was properly before it and failed to make the findings necessary to support a change in visitation. We reverse those portions of the order modifying custody and visitation and permanently terminating therapy.
Facts and Proceedings
To aid in our summary of the facts and proceedings, we take judicial notice of an opinion issued by this court on July 15, 1997, on an earlier appeal. (In re Marriage of Donald and Karen H. (July 15, 1997, C025353) [nonpup. opn.] (hereafter Marriage of H.).) We also grant the request of amici Justice For Children et al., to take judicial notice of various materials submitted by Mother to this Court in connection with an earlier writ proceeding.
The parties have three children: Jeff, born in 1986; Kami, born in 1988; and Stacey, born in 1991. (Marriage of H., at p. 2.) Father filed a petition for dissolution of the marriage on June 2, 1994. The parties initially stipulated to joint legal custody, with primary physical custody to Mother. On August 25, 1995, the court entered a “status only” dissolution. (Marriage of H., at p. 2.)
Mother thereafter accused Father of sexual misconduct with their daughters and moved for a modification of custody. Attached to her motion was a declaration by a Child Protective Services supervisor that he witnessed a police interview in which Kami said Father had been touching her in the genital area and showing her “naughty” pictures. The court suspended Father’s visitation. (Marriage of H., at p. 4.)
Thereafter, it was disclosed that Mother had conducted a taped interview with Kami the night before she spoke to police in which Mother was “trying crudely to program Kami to say that her father molested her.” (Marriage of H., at p. 5.) It was determined that Mother’s “coercive interview had thoroughly contaminated Kami ‘and it has made it impossible to learn what actually happened.’” (Marriage of H., at p. 6.)
Mother provided evasive responses to discovery requests from the children’s counsel regarding what evidence of sexual abuse she intended to present at trial. The trial court granted a motion to compel, but Mother continued to provide incomplete answers. The court then entered an order precluding evidence of sexual abuse as a discovery sanction. (Marriage of H., at pp. 8-10.) The court further concluded: “‘This Court, as well as its experts, has reviewed the videotapes and the audio tapes which allegedly support [Mother’s] claim of sexual abuse [of] the children. It probably does not require a Ph.D. in psychology . . . to understand, from reviewing those exhibits in chronological sequence, that there has been manipulation of these children, that they have been coached . . . and that those stories are not true and are not substantiated by any credible evidence.’” (Marriage of H., at p. 11.)
The trial court awarded physical custody to Father. (Marriage of H., at p. 12.) The court further prohibited Mother from having any contact with the children for 30 days, followed by monitored telephone contact and supervised visits.
Mother appealed.
In an unpublished opinion, we affirmed the order imposing the discovery sanction and modifying custody and visitation. (Marriage of H., at p. 18.)
The record before us reveals little of what transpired in this matter thereafter. In June 1998, the trial court granted father’s request for sole legal custody of the children and denied Mother’s request for custody. On January 31, 2001, the court ruled on an order to show cause filed by Mother the prior December. The court continued physical custody with Father but granted Mother unsupervised visitation every other weekend, for four hours on Friday of alternate weeks, and for two weeks in July and two weeks in August.
On August 14, 2002, the trial court denied Mother’s request for domestic violence and sexual assault counseling for the children. The court also denied a motion filed by the children’s attorney to permit the children to decide when and how often to visit Mother. However, the court granted the children five “free passes” per year, permitting them to attend some other activity rather than visit with Mother.
In 2003, the oldest child, Jeff H., turned 17, moved out of Father’s home and moved back with Mother.
Between February 22 and February 24, 2005, the trial court heard evidence in this matter, including the testimony of Jeff H. and at least two expert witnesses. On March 17, the court entered an order finding that Father had “in large part” complied with existing custody and visitation orders but “failed to use his best efforts to share with [Mother] access to the children’s school and medical reports and documents concerning the care and welfare of the children.” The court further found Mother complied in general with existing custody and visitation orders but breached the spirit of those orders by instituting a procedure requiring the children to make up visitation time whenever they have a school, church or other social event or a job that took place during visitation.
The court modified the existing custody and visitation order as follows: The court granted Kami and Stacey the right, upon attaining the age of 17, to chose with whom to reside and whether to visit the other parent. The court ordered Father to notify Mother “of all school, church, medical, including dental and other professionals, and otherwise use his good faith efforts to provide Mother with timely reports and documents of the care and welfare of the children.” Father was also ordered to “acknowledge and respond, as appropriate, to all communications from the mother concerning the care and welfare of the two children.” The court ordered Mother to terminate the make-up visitation procedure unless the child consents. Finally, the court scheduled a further hearing on August 26, 2005, to consider matters not yet addressed.
Over the ensuing months, Mother filed several orders to show cause and affidavits for contempt (contempt OSC’s) against Father. In anticipation of the August 26 hearing, Mother also filed declarations from witnesses and observers at the February 2005 hearing who said the court’s statement of decision supporting its change of custody order misstated the testimony presented at the hearing.
On August 26, 2005, the court ordered arraignment and a settlement conference on the various contempt OSC’s for October 7.
On September 12, 2005, Mother filed a motion to modify custody and visitation. Also in September, the parties agreed on counseling for their daughters to repair the mother-daughter relationship.
On October 7, Father appeared without counsel and the court continued the contempt OSC’s until November 4 to permit Father to obtain counsel if desired or have counsel appointed for him. The court also took note of the parties’ agreement for counseling.
Mother and the girls attended counseling on October 10 and 18. In the first session, Kami, the older girl, was “polite” but “very aloof,” while Stacey was “spitting angry.” In the second session, Stacey was “jovial” and joking with the therapist. Due to the therapist’s unavailability, the next session was scheduled for November 1. However, on October 31, Father notified Mother’s counsel that he would not make the girls available, and the girls did not attend.
On November 1, Kami turned 17 and chose to continue residing with Father and to cease visitation with Mother.
On November 4, Mother filed an order to show cause for emergency enforcement of the counseling agreement. At the hearing scheduled for that date, Father appeared without counsel. Father explained he had retained Patrick Keene to represent him on the contempt OSC’s but Keene was on vacation and would not return for a week and a half. The court rescheduled arraignment for November 29. Despite Mother’s protestations, the court refused to hear her order to show cause for emergency enforcement and instead scheduled the matter for consideration on November 29.
Not surprisingly, Father failed to produce the girls for counseling on November 8, 15, or 22.
On November 29, Father again appeared without counsel and waived counsel for purposes of arraignment. Father was arraigned on the contempt OSC’s and pleaded not guilty. The court denied Mother’s request to have the matters set for trial immediately and instead scheduled a settlement conference for January 20, 2006. On Mother’s order to show cause for emergency enforcement, the court entered an order on the parties’ agreement for counseling, requiring both girls to attend counseling once a week for one hour.
That evening, Father brought Stacey alone to the pickup point for counseling. Stacey was uncooperative and “vicious” at the counseling session. At the next session, Stacey informed the counselor her father told her she did not have to come back and should not be required to talk to the therapist. Nevertheless, Stacey continued to attend the counseling sessions.
On December 27, Father brought Stacey to the pickup point, but Stacey refused to go with Mother to counseling. Stacey also refused to go with Mother on December 30 for visitation. On January 3 and 10, Stacey refused to go with Mother for counseling, and, on January 13, refused to visit Mother.
On January 17, Father arrived with Stacey at the pickup point and Stacey again refused to go with Mother. However, a deputy sheriff was present on this occasion and, after an hour of talking with Stacey and the parties, Stacey accompanied Mother to the counseling session. However, at the session, Stacey was again “vicious,” calling the therapist names and saying she did not have to talk to the therapist.
At the scheduled settlement conference on January 20, Father again appeared without counsel. This time, Father admitted that he had never actually retained Keene to represent him. The court appointed the public defender to represent Father and rescheduled the settlement conference for February 23.
On January 24, Father arrived at the pickup point with Stacey, Stacey again refused to go with Mother, and a deputy sheriff again tried to convince Stacey to attend the therapy session. However, this time he was unsuccessful. Stacey was arrested for refusing to accompany Mother to therapy.
On or about January 27, Father filed an order to show cause requesting a suspension of contact between Mother and the girls. At 10:15 and again at 10:40 a.m., Father left a message on the answering machine of Mother’s counsel informing her of an ex parte hearing on his order to show cause at 3:00 p.m. that day. Counsel, who was in Los Angeles at the time, got the message at 1:15 p.m. and immediately notified Mother.
The trial court heard Father’s order to show cause on January 27 at 5:00 p.m. with the parties present without counsel. Following the hearing, the court suspended visitation with Mother until February 23, but directed that both children continue counseling, with Father arranging for transportation to the sessions.
On February 17, the trial court conducted settlement negotiations on Mother’s contempt OSC’s and set a trial date for April 19. On Father’s order to show cause, the court continued the suspension of visitation but also suspended counseling. The court scheduled a further hearing for March 15.
The record does not disclose what transpired on March 15. The next hearing took place on April 12, when the court set a hearing for April 19 on Father’s order to show cause. The court further stated that trial on the contempt OSC’s and Mother’s motion to modify custody would be scheduled at the next hearing.
On April 19 and 20, the court received evidence on Father’s order to show cause. Various witnesses testified about what transpired the night Stacey was arrested. Father testified that he did not believe he exercised good judgment in agreeing to the counseling in the first place. He complained that the counseling was more detrimental to the mother-daughter relationship than no counseling at all.
The counselor also testified. She described the girls’ conduct at the therapy sessions and said that, when the girls were disrespectful, Mother admonished them.
The next witness was Ryan Gillaspie, the deputy who arrested Stacey on January 24. Gillaspie testified that Father told him Stacey was going to tell Mother she would not go with her. While Stacey did so, Father explained that he “had no control over her.” After Stacey returned to Father’s truck, Gillaspie told them there was a court order requiring Stacey to attend counseling. Father said he could not make her go with Mother and Stacey said she would rather be arrested than go with Mother. Gillaspie told Mother that he would have to arrest Stacey and Mother said if that is what is stipulated in the order then “that’s what needs to be done.” Neither Father nor Mother encouraged Stacey to comply with the court order in order to avoid arrest.
The court refused to permit any testimony from Jeff H. about his experiences living with Father, explaining that Jeff’s testimony had already been presented in February 2005 and, because Jeff had not lived in father’s house since May 2003, he had nothing new to add.
Over Mother’s objections, the court examined Stacey in chambers outside the presence of the parties or their counsel. Because the court denied Mother’s request to transcribe what was said in this examination, we do not know what Stacey told the court. However, in its ensuing order, the court found “little evidence that Stacey hates her mother,” but “the evidence supports the conclusion that she severely disagrees with her mother’s lifestyle, her mother’s insistence on counseling, that there is a real or perceived interruption of her school/church social activities during court ordered visitation with her mother, and that she dislikes and feels uncomfortable around her mother’s live-in companion.”
On May 5, the court scheduled a hearing for August 29, 2006, on Mother’s motion for change of custody and another hearing for August 31, 2006, on the contempt OSC’s.
On May 19, the court issued its decision on Father’s order to show cause. After reviewing the evidence, the court made the following findings: Mother “intentionally set in motion the physical forces that caused her daughter to be arrested, and when an arrest was imminent, [Mother] failed to fulfill the reasonable, parental role of attempting to peaceably intercede for the support and protection of her daughter. Such conduct and failure are not in the best interest of the child.” The court further found: Father’s “conduct in failing to attempt to peaceably intercede when the arrest was imminent was also deficient, however less blameworthy. By the child’s poise in the face of arrest, and other facts, it is apparent that the 14 year old had come to the end of her rope and had resolved that she could not suffer another hated counseling session. While the Court is critical of [Father’s] decision that he felt his daughter ‘had’ to personally confront this issue alone and was mature enough to do so, the Court concedes, on this issue, reasonable minds could differ.” Finally, the court found “there is a long-term fracture in the relationship of mother and two daughters. The fracture is more serious with Stacey. However, these circumstances pre-date the Jan. 24[] arrest event . . . .”
The court terminated the stipulated order for counseling and ordered that the children be permitted to attend counseling as they choose. The court further amended the custody and visitation order as follows: “Effective the date of this order, Stacey [H.], who will attain her 15th birthday in a few weeks, shall have the discretion to choose which parent she shall reside with and for what duration, and shall visit the other parent as she sees fit. . . .”
Discussion
I
Custody
Mother contends the trial court erred in modifying custody to permit Stacey to choose with whom she will reside. At the time of this order, Stacey was not quite 15 years old. Under the prior order, Stacey would not have been permitted to make that decision until she turned 17. Mother argues she was denied due process because the issue of custody was not properly before the court. We agree the court’s order exceeded what was before it and, therefore, the order cannot stand.
Although Mother had filed a motion for change of custody in September 2005, the trial court repeatedly deferred consideration of that motion until it could resolve the many contempt OSC’s before it. On November 29, 2005, the court denied Mother’s request to set a hearing on the motion for change of custody, expressing the view that evidence on the contempt matters “may have some profound affect [sic] on [the] case.”
Following Stacey’s arrest on January 24, Father filed an order to show cause for emergency relief. In his declaration in support, Father stated: “I am asking this court to temporarily suspend the contact between Stacey and her mother until the court can hear all issues in a custody visitation hearing.”
At the beginning of the April 19-20 hearing, the court announced: “We are meeting today on an order to show cause filed by [Father] on January 30th, 2006 attempting to modify a visitation order filed September 13th, 2005.” Later in the hearing, when Mother attempted to introduce the testimony of Jeff H., the court indicated this testimony would be irrelevant because the hearing concerned Father’s order to show cause and the events that occurred on January 24.
Despite having limited the April hearing to the issue propounded by Father’s order to show cause, i.e., temporary suspension of contact between Mother and the girls, the court entered an order changing custody.
As a matter of fundamental due process, an order modifying a decree of child custody can only be made after notice and an opportunity to present evidence. (Lansdale v. Lansdale (1959) 173 Cal.App.2d 432, 433; see also Forslund v. Forslund (1964) 225 Cal.App.2d 476, 485; In re Saunders (1946) 76 Cal.App.2d 635, 637.) “Because parents enjoy a fundamental liberty interest in the care, custody and control of their children, a parent must be afforded adequate notice and a meaningful opportunity to be heard before being deprived of [her] parental interest.” (In re Axsana S. (2000) 78 Cal.App.4th 262, 269, disapproved on other grounds in In re Jesusa V. (2004) 32 Cal.4th 588, 624, fn. 12.)
In this instance, Mother received neither notice nor an opportunity to present evidence on the issue of a change in custody. Hence, the trial court exceeded its jurisdiction, and the order, insofar as it advanced the date on which Stacey could decide with whom to reside, must be reversed.
Having concluded the trial court erred in changing custody where that issue was not properly before it, we need not consider Mother’s additional arguments that the court erred in questioning Stacey in chambers outside the presence of the parties or their counsel and applied the wrong standard for determining if custody should be changed. Mother raises these issues only for the purpose of attacking the custody determination.
II
Visitation
In addition to changing custody, the May 19 order gave Stacey the option whether or not to visit Mother. Mother contends this was improper, because the decision whether to visit a parent cannot be left to a minor child. Mother further contends the court failed to take Stacey’s best interests into consideration in reaching this decision, inasmuch as Stacey’s own attorney argued continued visitation was important to Stacey.
Regarding her claim that the court cannot delegate the visitation decision to a minor child, Mother cites In re Hunter S. (2006) 142 Cal.App.4th 1497, 1505, In re Nicholas B. (2001) 88 Cal.App.4th 1126, 1138, and In re Julie M. (1999) 69 Cal.App.4th 41, 48-51. However, these cases all involved child dependency proceedings. As the court in In re Nicholas B. explained: “Whenever a child is removed from parental custody, the juvenile court is statutorily required to provide reasonable reunification services . . ., and a normal part of reunification services is visitation between the parents and the child.” (In re Nicholas B., at p. 1138.)
In family law proceedings, visitation is not mandatory. Family Code section 3100, subdivision (a), reads: “In making an order pursuant to Chapter 4 [regarding child custody] . . ., the court shall grant reasonable visitation rights to a parent unless it is shown that the visitation would be detrimental to the best interest of the child. . . .” Visitation may therefore be suspended if the court determines this would be in the best interest of the child. (Messer v. Messer (1968) 259 Cal.App.2d 507, 510.) However, the court may not delegate authority to alter visitation or determine if visitation shall occur to a third party, such as a family counselor (In re Marriage of Matthews (1980) 101 Cal.App.3d 811, 817) or the custodial parent (Messer v. Messer, at p. 510). Such delegation may be appropriate only where a court has discretion to suspend visitation altogether. (See ibid.) For the reasons that follow, that is not the case here.
As described above, the trial court made certain findings supporting its order. Regarding the January 24 arrest, the court found: Mother “intentionally set in motion the physical forces that caused her daughter to be arrested, and when an arrest was imminent, [Mother] failed to fulfill the reasonable, parental role of attempting to peaceably intercede for the support and protection of her daughter. Such conduct and failure are not in the best interest of the child.” However, the court also found that the police determined, after the fact, the arrest of Stacey was improper. Hence, there is little if any chance of a repeat of the arrest.
The court also found: “[T]here is a long-term fracture in the relationship of mother and two daughters. The fracture is more serious with Stacey. However, these circumstances pre-date the Jan. 24, 2006, arrest event . . . .”
The court found “little evidence that Stacey hates her mother,” but further found: “[T]he evidence supports the conclusion that [Stacey] severely disagrees with her mother’s lifestyle, her mother’s insistence on counseling, that there is a real or perceived interruption of her school/church social activities during court ordered visitation with her mother, and that she dislikes and feels uncomfortable around her mother’s live-in companion.”
The foregoing findings do not satisfy the requirement of Family Code section 3100, subdivision (a), that a continuation of visitation would be detrimental to the best interest of Stacey. At most, they support a conclusion that Stacey does not want to continue visitation because she dislikes Mother’s lifestyle, whatever that means, and Stacey perceives that visitation will interfere with other aspects of her life. This is not sufficient to satisfy the required finding.
Without a finding that continued visitation would be detrimental to Stacey’s best interests, the trial court had no power to terminate visitation. Without the power to terminate visitation, the court had no power to delegate the visitation decision to Stacey. Furthermore, the court permanently delegated the visitation decision to Stacey, whereas Father’s motion requested only that visitation be suspended until such time as the court conducts a custody hearing. As explained in the preceding section, there was no custody hearing. Hence, in permanently changing the rules of visitation, the court exceeded what was properly before it.
III
Termination of Therapy
Mother contends the trial court erred in terminating therapy. She argues the court ordered therapy pursuant to the parties’ stipulation and could not thereafter terminate it absent fraud, mistake of fact or other “special circumstances.” She cites as support In re Marriage of Kerry (1984) 158 Cal.App.3d 456 (Kerry) and In re Marriage of Economou (1990) 224 Cal.App.3d 1466 (Economou).
In Kerry, the parties entered into a stipulation providing, among other things, that the husband would purchase from the wife a home valued at $40,000. The court approved the stipulation and declared it an order of the court. (Kerry, supra, 158 Cal.App.3d at p. 461.) However, the wife later filed a motion to vacate the order supported by a declaration of the wife’s counsel that, at the time of the stipulation, he believed the wife still owned the house and only later discovered she had already sold it to another. Counsel further suggested the wife’s psychiatric difficulties prevented her from understanding the stipulation. The trial court granted the motion. (Id. at p. 462.)
On the husband’s cross-appeal challenging the decision to set aside the stipulated order, the court described the following standard: “Relief from a stipulation or a judgment pursuant to a stipulation may be granted where there is fraud, mistake of fact, or other special circumstances rendering it unjust to enforce the stipulation.” (Kerry, supra, 158 Cal.App.3d at p. 465.) The court concluded that standard had been met, based on the wife’s mistake of fact. (Id. at pp. 466-467.)
In Economou, this court concluded the trial court had acted within its power in setting aside a fraudulently induced stipulated order regarding child and spousal support. We noted: “A stipulation may be set aside ‘“where special circumstances exist rendering it unjust to enforce the stipulation.”’ [Citations.] In addition, a court, in the interest of fairness, may relieve a party from the effect of a stipulation.” (Economou, supra, 224 Cal.App.3d at p. 1477.)
The foregoing cases do not assist Mother. The stipulations at issue concerned the rights of the parties alone. The parties voluntarily entered into the agreements and were stuck with them, unless a valid reason existed for setting them aside. In the present matter, the stipulation also concerned the interests of the parties’ children. Although the parties agreed to weekly counseling, it was for the court to decide if this was in the children’s best interest. (See Fam. Code, § 3190, subd. (a)(2).) Therefore, if the court later determines counseling is no longer in the children’s best interest, the court may terminate it, notwithstanding the parties’ stipulation.
In the present matter, the trial court clearly determined further counseling was not in Stacey’s best interest. Although reasonable minds might differ on the court’s conclusion in this regard, given that the court’s conclusion appears to have been based solely on Stacey’s resistance to therapy, this was a matter for the trial court to decide. Mother does not contend there is no substantial evidence to support the court’s conclusion a termination of therapy was in Stacey’s best interests.
IV
Further Proceedings
We conclude the portion of the trial court’s May 19 order modifying custody cannot stand, because custody was not before the court on Father’s order to show cause. We further conclude the court erred in giving Stacey the power to decide if she will visit Mother, because the court made no finding that this was in Stacey’s best interest. This leaves only that portion of the order terminating therapy. Upon remand, the court’s September 13, 2005, order for custody and visitation shall be reinstated.
In the event the trial court is hereafter called upon to revisit the issue of custody, we make the following suggestions for the guidance of the court.
First, although the trial court ordered that the issue of sexual misconduct be excluded from the proceedings as a discovery sanction, and we affirmed that order on appeal, the order applies only to alleged sexual misconduct prior to the time of the discovery dispute. The record contains several declarations by Jeff H. which suggest that, after the children moved in with Father, sexual misconduct may have continued. This evidence is clearly relevant on the issue of custody.
Second, to the extent the court accepts testimony from the children or, as in this case, examines the children in chambers, that testimony must be considered in context. That context is provided by the testimony of Jeff H. and expert testimony submitted by Mother. Jeff explains how the girls’ expressions of preference may not be accurate because of Father’s influence over them and repeated negative comments about Mother. Barry Goldstein, who testified in February 2005 as an expert on domestic violence, suggests that any expressed desires of the girls must be considered in the context that it is common for children placed in the custody of an abuser to support the abuser’s position.
We, of course, recognize the foregoing evidence is not dispositive and the court can make its own evaluation of the credibility of the children and the voluntariness of their expressions of preference. However, this evidence will be relevant to the court’s evaluation of any custody determination and should be considered.
Disposition
Those portions of the trial court’s May 19 order modifying custody and visitation are reversed, leaving only that portion terminating the stipulated order for therapy. The matter is remanded for further proceedings consistent with the views expressed in this opinion. Mother is entitled to her costs on appeal.
We concur: BLEASE , Acting P.J., DAVIS , J.