Opinion
B162064.
10-30-2003
In re Marriage of TAMMY and ANTHONY HOLGUIN. TAMMY HOLGUIN, Appellant, v. ANTHONY HOLGUIN, Respondent; PAMELA EDWARDS, Respondent.
Colette Jolicoeur and Jeffrey L. Greenwald for Appellant. No appearance for Respondent Anthony Holguin. Loretta Hersh Selinger for Respondent Pamela Edwards.
In this family law matter, Tammy Holguin appeals from a superior court order dated August 22, 2002, modifying an earlier order awarding custody of Tammys biological children jointly to Tammy and Pamela Edwards, Tammys ex-husbands former live-in companion. Tammy also appeals a subsequent order dated September 12, 2002, further restricting her custodial rights. The August 22, 2002 order is reversed in part and affirmed in part. The September 12, 2002 order is reversed.
We refer to the parties by their first names for clarity and not out of disrespect. (See In re Marriage of Olsen (1994) 24 Cal.App.4th 1702, 1704, fn 1.)
I. PROCEDURAL HISTORY AND STATEMENT OF FACTS
Upon receipt of this appeal, we ordered the superior court file. We may take judicial notice of the existence of judicial opinions and court documents, along with the truth of the results reached—in the documents such as orders, statements of decision and judgment—but cannot take judicial notice of the truth of hearsay statements in decisions or court files, including pleadings, affidavits, testimony or statements of fact. (Code Civ. Proc., §§ 451, subd. (a), 452, subds. (b) & (c), 459; Gilmore v. Superior Court (1991) 230 Cal.App.3d 416, 418.)
Tammy and Anthony Holguin are the parents of Brittany, born in August 1991, and Courtney, born in May 1993. Tammy and Anthony separated in January 1993, during Tammys pregnancy with Courtney. Tammy took custody of Brittany and of Courtney after her birth. In August 1993, Anthony moved into Pamelas home. In December 1993, Tammy was jailed for about a month as a result of a misdemeanor conviction. Her mother then took Brittany and Courtney into her home. During Tammys incarceration, Anthony and Pamela took custody of the children. Brittany was two years of age and Courtney was seven months old.
On May 8, 1997, Pamela and Anthony had a son. His custody is not at issue in this appeal. On June 27, 2001, Pamela was awarded sole legal and physical custody of the child.
On December 5, 1994, Tammy and Anthonys marriage was dissolved. Anthony was awarded sole legal and physical custody of the children. Tammy was granted monitored visitation rights.
Visitation was limited to every other Wednesday for a period of two to three hours per visit.
On September 30, 1996, Tammy and Anthony entered into a stipulation, and on October 15, 1996, the stipulation was made the order of the court. Under that order, Anthony retained legal and physical custody of Brittany and Courtney, while Tammy was awarded unmonitored "periods of parental responsibility" for the minors.
The court established a "progressive escalating schedule" of unmonitored visitation wherein Tammy would have the children "every week on Wednesday from 6pm until 8pm," and "every alternate Saturday from 9am until 6pm."
On April 8, 1997, Tammy and Anthony entered into another stipulation. They agreed to share legal custody of the children. With respect to physical custody, the order provided that "[p]hysical custody of the children shall be held by [Anthony] whereby the residence of said minors shall be with the father." Tammy was awarded "periods of parental responsibility" for the children that consisted of "every alternate weekend from 5:30pm Friday until 7pm Sunday," and "every week on Wednesday from 6pm until 8pm." Anthony was to have the children "during all time that is not designated . . . as periods of parental responsibility for [Tammy]." On April 22, 1997, the stipulation was made the order of the court.
On July 14, 2000, Anthony left the family home he shared with Pamela, leaving Brittany and Courtney in Pamelas care.
On August 14, 2000, Tammy and Pamela executed a stipulation prepared by Pamelas counsel, wherein Tammy "consent[ed] to [Pamela] being joined as a party to [the dissolution] action." Pamela and Tammy agreed to share joint legal and physical custody of the children. With respect to physical custody, it was agreed that Tammy would have custody of the children on "alternating weekends from Friday close of school until Monday commencement of school . . . and each and every week from Wednesday close of school until Friday commencement of school." Pamela was to have custody of the children "alternating weekends from Friday close of school until Monday commencement of school . . . and each and every week from Monday from close of school until Wednesday commencement of school." Tammy and Pamela also reached agreement with respect to holidays, summer vacation and Anthonys visitation. Tammy and Pamela were "restrained and enjoined from making disparaging or derogatory remarks about the other party in the presence or within the hearing of the minor children." The children were to "remain in their current school" which was located in Pamelas neighborhood.
"`Joint legal custody means that both parents shall share the right and the responsibility to make the decisions relating to the health, education, and welfare of a child." (Fam. Law Code, § 3003.) "`Joint physical custody means that each of the parents shall have significant periods of physical custody. Joint physical custody shall be shared by the parents in such a way so as to assure a child of frequent and continuing contact with both parents, subject to Sections 3011 and 3020." (Fam. Law Code, § 3004.)
Tammy and Pamela agreed that Anthonys visitation would consist of two hours of monitored visitation on alternating Saturdays.
On August 18, 2000, Pamela filed an ex parte motion for joinder and an order to show cause seeking, among other things, joint custody of Brittany and Courtney and "stepparent visitation." Attached to Pamelas order to show cause was the stipulation executed by Tammy and Pamela on August 14, 2000, and Tammys declaration wherein she stated, "I believe it is important for the girls to remain with Pamela a significant portion of the time because they have always lived with her. However, I believe it is essential that the girls not be awarded any time whatsoever with their father except limited and monitored visitation. [¶] . . . I have had virtually no contact with my ex-husband for many years. All of the contact I have had involving exchanging custody of the girls, working out vacations, holidays, medical issues, and school matters has been conducted between myself and Pamela. I ask that this Court not permit Anthony Holguin to take custody of our daughters. I realize the current Order in our Dissolution case gives him sole legal and physical custody but, he has not been the one who has actually exercised that custodial time but, rather Pamela has been the one who has cared for and raised our children. It would be extremely harmful to the girls if Anthony Holguin were awarded custody of the children." Pamela, too, submitted a declaration. She averred that Anthony left the home they shared on July 14, 2000, and that as of August 14, 2000, Anthony had had little contact with Brittany and Courtney.
In fact, the order effective in August 2000 was the order dated April 22, 1997, awarding Anthony and Tammy joint legal custody, and awarding Anthony physical custody and Tammy certain "periods of parental responsibility."
The trial court joined Pamela as a party in the dissolution, and on August 18, 2000, issued two orders. The first, labeled "temporary," awarded Pamela "temporary legal and physical custody of [Anthonys] minor children," and awarded Anthony two hours of monitored visitation on alternating Saturdays. The temporary order contained the following provision: "With regard to [the childrens] biological mother, Tammy Holguin, she shall continue to exercise custodial time with the minor children . . . pursuant to that certain Stipulated Order executed August 14, 2000." The second order made the August 14, 2000 stipulation between Tammy and Pamela the order of the court.
A summons in joinder was issued by the superior court as permitted by California Rules of Court, rule 5.158(c). (See In re Marriage of Gayden (1991) 229 Cal.App.3d 1510, 1513.)
This appears to be in error. Although the stipulation is dated August 14, 2000, the order is dated August 18, 2000.
In January 2001, Anthony was served by publication with Pamelas August 18, 2000 order to show cause. He did not file a response.
After a number of continuances, the hearing on Pamelas August 18, 2000 order to show cause came on regularly as a default hearing on July 19, 2001. Tammy and Pamela appeared. Each was represented by counsel. Anthony appeared, but he was not represented by counsel. The trial court found that a default had been entered as to Anthony and that a stipulated order previously had been entered as to Tammy. On July 23, 2001, the court issued an order directing that custody of Brittany and Courtney would "remain pursuant to the Stipulated Order entered August 18, 2000." Anthony was awarded monitored visitation on "alternating Saturdays from 10:00 a.m. to 12:00 noon."
The trial court refused to allow him to address the court with respect to the custody issue.
While Pamelas August 18, 2000 order to show cause was pending, difficulties arose concerning the joint custody arrangement between Tammy and Pamela. As a result, on May 23, 2001, Pamela filed an order to show cause seeking to modify the August 18, 2000 order to reduce Tammys custodial time "to close of school Wednesday to commencement of school Thursday every week and alternating weekends from Friday 7:00 p.m. to Sunday 7:00 p.m." Pamela asked, in addition to other things, that she be designated to make final decisions regarding education should she and Tammy fail to agree, and that certain restraining orders against Tammy be imposed.
On July 5, 2001, Tammy filed a responsive declaration to Pamelas May 23, 2001 order to show cause. Tammy asked that she be awarded legal and physical custody of Brittany and Courtney, with Pamela having visitation when Tammy deemed it appropriate. Tammy claimed that she had been coerced into signing the August 14, 2000 stipulation, and that Pamela had misled her into believing that the attorney Pamela had hired to prepare the agreement was for both Tammy and Pamela so that they could "form an alliance" against Anthony.
On July 11, 2001, Pamela and Tammy stipulated to a psychiatric evaluation. On the same date, the court, on its own motion, enjoined "both parties" from discussing the subject of the evaluation with the children and from making "any derogatory remarks about the other to or in the presence of, or within the hearing of," the children.
Later, Anthony was permitted to participate in the evaluation.
On February 28, 2002, Pamela filed an order to show cause seeking to restrain Tammy from going to the childrens school "at drop-off or pick-up time" on Pamelas days of custody, and from attending certain extracurricular and/or school-connected activities when they occurred on Pamelas days of custody.
On March 14, 2002, Tammy responded to Pamelas February 28, 2002 order to show cause by requesting termination of all of Pamelas custodial rights. Tammy sought unrestricted custody of Brittany and Courtney, and represented that she and Anthony were "united . . . in opposing the exercise of any custody rights" by Pamela. Tammy took the position that the August 18, 2000 stipulated order was "temporary" in nature, and suggested that Troxel v. Granville (2000) 530 U.S. 57 (Troxel) mandated that she be granted sole custody of Brittany and Courtney. Tammy also claimed that the August 14, 2000 stipulation had been obtained by fraud, and that "she was never advised of the consequences of signing the stipulation, which had been prepared by [Pamelas] counsel."
Troxel arose from a visitation dispute between a mother and paternal grandparents. The mother sought to limit the grandparents visitation after the childrens father committed suicide. (Troxel, supra, 530 U.S. at p. 61.) The grandparents then filed a petition to obtain visitation rights under a Washington statute that allowed "any person" to petition for visitation rights "at any time" and authorized the trial court to grant visitation rights whenever "visitation may serve the best interest of the child." (Ibid.) The Washington Supreme Court held the statute facially unconstitutional because it infringed on the fundamental right of parents to rear their children without requiring a showing that the child might be harmed by the decision and because it was too broad in allowing any person to petition for visitation at any time. (Id. at p. 63.) The Washington court also held that the third party visitation statute was unconstitutionally broad because it allowed a trial court to order visitation based solely on what the court believed was in the best interest of the child. (Ibid.) The United States Supreme Court affirmed the state court judgment. (Ibid.) Justice OConnor, writing for a plurality, held that, as applied to the particular facts, the statute unconstitutionally infringed on a parents right to make decisions concerning the care, custody, and control of her children. (Id. at pp. 68-69.)
On March 14, 2002, the trial court issued an order with respect to Pamelas February 28, 2002 order to show cause which provided as follows: "[Tammy] is re[s]trained and enjoined from coming to the minors school at drop-off or pick-up time on [Pamelas] days of custody and specifically is restrained and enjoined from interfering with the minor children during [Pamelas] custodial weekends. [¶] . . . [Tammy] is restrained and enjoined from coming to any of the minor childrens extra curricular activities which occur on [Pamelas] time."
On April 5, 2002, Anthony filed an order to show cause seeking modification of the July 23, 2001 order awarding Pamela and Tammy joint custody of the children. Anthony asked that Pamelas custodial rights be terminated, and that he and Tammy be granted joint legal and physical custody of Brittany and Courtney. Anthony noted that he had not joined in the August 14, 2000 stipulation, and that the July 23, 2001 order had been entered against him by default. Anthony admitted that he had left Brittany and Courtney in Pamelas care when he left her residence in July 2000. He claimed, however, that when he did so, he asked Pamela to contact Tammy "and make arrangements for [his] daughters to live full time with Tammy." Anthony admitted that Pamelas "allegations of years of prolonged alcohol and drug abuse" were true, and that in July 2000, when his relationship with Pamela ended, he had "personal problems primarily with alcohol and some drug use." He claimed, however, that within 30 days of his separation from Pamela he enrolled in a 12-step program for alcohol and drug abuse. Anthony stated that he understood that his "past alcohol and drug use was inexcusable," but claimed that he had "for the past two years, except for one instance," maintained his sobriety.
On May 7, 2002, Tammy responded to Anthonys order to show cause by stating that in her opinion Anthony had "profoundly changed his life," and that he was "very serious about his sobriety." Tammy insisted that she and Anthony "have been able to agree on the rearing of our children," and that they had "worked out [their] differences from 12 years ago and have put the past behind us."
On July 31, 2002, and August 2, 2002, Pamelas order to show cause filed on May 23, 2001, and Anthonys order to show cause filed on April 5, 2002, came on regularly for trial. The trial court stated it had read and considered the psychiatric evaluation report prepared by Dr. Clinton Y. Montgomery, a supplement to the report, and the report of Dr. Carl Hoppe. The court also indicated that it had considered all of the declarations filed by the parties, and overruled all objections made to the various declarations. At the conclusion of the hearing, the trial court denied Anthonys order to show cause. With respect to Pamelas May 23, 2001 order to show cause, the court modified the August 18, 2000 order by awarding Pamela primary physical custody of the children, and by reducing Tammys physical custody time. Pamelas counsel was directed to prepare an order, "including all of the findings which the court has orally said that it is making."
Declarations submitted by the parties included those of friends, family members, a teacher and the school principal as well as declarations from Tammy, Pamela and Anthony.
The court set a hearing for August 21, 2002, directing Pamelas counsel to show cause, if necessary, why the proposed order had not been prepared and served as instructed by the court.
In the meantime, on August 14, 2002, Pamela, apparently believing Tammy and Anthony had discussed the custody matter with Brittany and Courtney, filed an ex parte application asking that Tammy and Anthony be restrained from doing so in the future. Pamela also requested monitored visitation for Anthony and Tammy, a further reduction of Tammys time with the children, and that Tammy be ordered to attend a six-month anger management class and parenting classes.
On August 14, 2002, the trial court continued the hearing with respect to preparation of the proposed order to August 22, 2002. The hearing on Pamelas August 14, 2002 order to show cause was also continued to that same date. Pending the hearing, the court issued a temporary order stating that the "minor children shall remain with [Pamela]," and "[a]ll visitation rights to both [Anthony] and [Tammy] are suspended."
On August 22, 2002, attorneys for Anthony and Tammy objected to the proposed order prepared by Pamelas counsel. The court noted their objections and concluded that it would sign the order without making changes. Pamelas August 14, 2002 order to show cause was continued to September 12, 2002.
The August 22, 2002 order provided, in part, as follows:
"1. FINDINGS OF FACT
"The Court finds that there is no authority for a finding of fact , in that the [L]egislature has amended the Code and no longer requires findings and now requires a Statement of Decision. Statements of Decision reflect the Courts thinking on central issues. The Court has reviewed the Request for Findings and declines to answer said Request in that findings are not appropriate and will not help clarify what the Court should do.
"2. REQUEST RE TRANSCRIPT
"Counsel for [Tammy] has requested that the Court take into consideration the transcript of the March 14, 2002, hearing. The Court has read and considered such transcript and finds that the Court would have preferred to have heard from expert testimony such as Dr. Montgomery or other experts and that [Tammy] has not put on any such testimony. The court finds that what [Tammy] has said in her testimony is duplicative of what she said in her Declarations and what she said to Dr. Montgomery, that there has been nothing new provided by [Tammys] testimony.
"3. FINDINGS RE WITNESSES
"The Court finds that objective observers such as principals and teachers who have no emotional involvement and are trained observers of children are better witnesses and have more credible testimony and therefore the Court places great credence in the testimony of the witnesses Madison and Lattimore.
"4. MOTIONS TO STRIKE
"The Court specifically denies each and every request to strike any declaration or part thereof.
"5. FINDINGS RE PSYCHOLOGICAL PARENT
"The Court finds that Claimant, Pamela Edwards, is and continues to be the childrens psychological parent. She has been for a long period of time their psychological parent. The children are doing well and developing normally with [Pamela] and their normal development is attributable to [Pamela].
"6. FINDINGS RE BEST INTEREST
"The Court finds specifically that it is in the minor childrens best interest to remain with [Pamela]. The Court finds that the minors are bonded with [Pamela] due to the parenting she has provided to them.
"7. FINDINGS RE DETRIMENT
"The Court further finds specifically that it would be detrimental to the minor children pursuant to Family Code Section 3041 to grant primary physical custody to either biological parent. The Court finds that it is in the childrens best interest that primary physical custody be awarded to [Pamela] and that it would be detrimental for primary physical custody of the minor children to be awarded to either of the biological parents.
"8. STANDARD OF PROOF
"The Court makes the above findings by both a preponderance of the evidence by clear and convincing evidence.
"9. FINDINGS RE MISCONDUCT
"The Court finds that [Tammy] has been a disruptive force in the childrens lives and has been the cause of the conflict between [Pamela] and [Tammy]. The Court further finds that [Tammy] lacks parenting skills and does not understand the type of responses that a parent should make regarding childrens questions in an age appropriate manner. The Court further finds that [Tammy] lacks parenting skills and is oblivious to the needs of the children.
"10. FINDINGS RE VIOLATION OF COURTS ADMONISHMENT
"The Court further finds that both [Tammy] and [Anthony] willfully violated the Courts admonishment regarding [discussing] the case with the parties minor children.
"11. FINDINGS RE [TROXEL]
"The Court finds that the case of [ Troxel] is not relevant and is not on point. . . .
Because visitation rights are a limited form of custody (Guardianship of Martha M. (1988) 204 Cal.App.3d 909, 912), Troxel is relevant to any proceeding involving nonparent petitions for custody of a child. If nothing else, Troxel teaches that orders involving nonparent petitions cannot be entertained in the absence of parental due process. (Troxel, supra, 530 U.S. at p. 73 [the court did not define the precise scope of the parental due process right].) Nothing contained in this record suggests, however, that Tammys due process rights were violated. And, although Tammy suggests that the trial courts decision to modify the earlier joint custody order is somehow unconstitutional under Troxel, nothing contained in this record suggests modification of the nonparent custody order issued in July 2001 is impermissible under the facts of this case.
"14. LEGAL CUSTODY
"Legal custody of the parties minor children . . . shall remain pursuant to that certain Stipulated Order entered August 18, 2000, with the following qualification; in the event that [Pamela] and [Tammy] are unable to agree with regard to education choices, [Pamelas] choices with regard to educational issues shall take precedence.
"15. PHYSICAL CUSTODY
"15.1 The holiday and vacation schedule set forth in that certain August 18, 2000, Stipulated Order shall continue in full force and effect.
"15.2 [Pamela] is awarded primary physical custody of the parties minor children . . . at all times not awarded to either [Anthony] or [Tammy].
"15.3 [Tammy] is awarded physical custody as follows:
"a. Alternating Weekends from Friday close of school, day care, or 5:00 p.m. [if school is not in session] until Monday commencement of school, daycare, or 8:00 a.m. [if school is not in session]. Alternating weekends shall commence August 23, 2002, and continue every other weekend thereafter.
"b. Holiday and vacation time shall overlay the alternating weekend schedule, so that at the conclusion of any holiday or vacation time, the alternating weekend time shall continue as if no holiday or vacation had occurred.
"c. [Tammy] is awarded every Wednesday from close of school, daycare, or 8:00 a.m. Thursday.
"15.4 Transportation: During school [Tammy] is ordered to pick up the minor children from school or daycare at the commencement of her custodial time and return the minor children to school or daycare at the conclusion of her custodial time. If the children do not have school or daycare on any particular day, [Tammy] is ordered to pick up the minor children from [Anthonys] residence at 5:00 p.m. and [Pamela] is ordered to pick up the minor children at the conclusion of [Tammys] custodial time at 8:00 a.m. on either Thursday or Monday mornings.
"16. VISITATION BY [ANTHONY] . . . .
"17. RESTRAINING ORDERS "
"17.1 Each of the parties is restrained and enjoined from discussing this Court case, the custodial arrangement, the psychiatric report, any testimony made in this case, and Declarations filed in connection with this case, or any other matter which relates or pertains to this case including opinions about counsel, the judge, or the appellate process with the minor children except whatever information is necessary to advise the children of where they will physically be located at any given time.
"17.2 Each of the parties is restrained and enjoined from discussing the other parties or such parties family with the minor children other than general comments in response to the childrens inquires, and are restrained and enjoined specifically from making derogatory or disparaging remarks about any absent party or such partys family to or in the presence of the minor children."
On September 12, 2002, Pamelas August 14, 2002 order to show cause was heard. At the conclusion of the hearing, the trial court issued an order modifying the August 22, 2002 order. Tammy was directed to attend parenting classes and anger management classes for a period of six months during which time her visits with Brittany and Courtney were to be monitored and reduced to four hours every other Sunday. The parties were restrained and enjoined from discussing the case, custodial arrangements or the other parties, and from making disparaging remarks about the other parties.
On September 12, 2002, Anthony executed a stipulation concerning custody and visitation agreeing that the August 22, 2002 order would "remain in full force and effect" except for modifications concerning Anthonys visitation with the children. He specifically agreed that the September 12, 2002 "agreement cover[ed] all matters in dispute in this Order to Show Cause."
Tammy filed a notice of appeal from the August 22, 2002, and September 12, 2002 orders. Shortly thereafter, she filed a petition for writ of supersedeas, seeking a stay of the two orders pending the appeal. On November 18, 2002, this court issued an order granting the petition for supersedeas, directing the parties to abide by the August 18, 2000 stipulated order. Later, Tammy and Pamela voluntarily participated in this courts settlement program. Unfortunately, they were unable to resolve their differences. Thus, this opinion.
II. DISCUSSION
The issues presented are whether the August 18, 2000 stipulated order is a final order, whether the trial court applied the proper standard in modifying the joint custody order in existence in August 2002, and whether the August 22, 2002, and September 12, 2002 orders are supported properly by the evidence.
A. Californias doctrine of parental preference
Under the due process clause of the Fourteenth Amendment to the United States Constitution, parents have a fundamental right to make decisions concerning the care, custody, and control of their children. (Troxel, supra, 530 U.S. at pp. 65-66 (plur. opn. of OConnor, J. & conc. opn. of Souter, J.) This right, however, is not absolute. (In re B. G. (1977) 11 Cal.3d 679, 698-699.) Under certain circumstances, a court is permitted to award custody to a nonparent against the claim of a parent. (Id. at p. 699.)
In an initial custody dispute between a parent and a nonparent, California applies a presumption or preference in favor of the parent. (In re Guardianship of Simpson (1998) 67 Cal.App.4th 914, 921 [Family Code section 3041 "deals with an involuntary initial loss of custody against parental wishes"].) This presumption, labeled in some cases as the "doctrine of parental preference" is found in Family Law Code section 3040, subdivision (a) which provides as follows: "Custody should be granted in the following order of preference according to the best interest of the child as provided in Sections 3011 and 3020: [¶] (1) To both parents jointly pursuant to Chapter 4 (commencing with Section 3080) or to either parent. In making an order granting custody to either parent, the court shall consider, among other factors, which parent is more likely to allow the child frequent and continuing contact with the noncustodial parent, consistent with Section 3011 and 3020, and shall not prefer a parent as custodian because of that parents sex. The court, in its discretion, may require the parents to submit to the court a plan for the implementation of the custody order. [¶] (2) If to neither parent, to the person or persons in whose home the child has been living in a wholesome and stable environment. [¶] (3) To any other person or persons deemed by the court to be suitable and able to provide adequate and proper care and guidance for the child."
All further statutory references are to the Family Code unless otherwise indicated.
Section 3011 requires the court, in evaluating the best interest of the child, to consider, among other factors, the health, safety, and welfare of the child; any history of abuse by one parent against the child or against the other parent; the nature and amount of contact with both parents; and habitual or continual illegal use of controlled substances or alcohol by either parent. (§ 3011, subds. (a), (b), (c), & (d).) Section 3020 sets forth certain legislative findings and declarations concerning the health, safety and welfare of children, and the continuing need for parental contact. (& sect; 3020, subds. (a), (b), & (c).)
Before custody can be awarded to a nonparent, certain findings must be made pursuant to section 3041. In August 2000, section 3041 provided as follows: "Before making an order granting custody to a person or persons other than a parent, without the consent of the parents, the court shall make a finding that granting custody to a parent would be detrimental to the child and that granting custody to the nonparent is required to serve the best interest of the child. Allegations that parental custody would be detrimental to the child, other than a statement of that ultimate fact, shall not appear in the pleadings." (Former § 3041, italics added.)
Effective January 1, 2003, section 3041 was amended to read as follows: "(a) Before making an order granting custody to a person or persons other than a parent over the objection of a parent, the court shall make a finding that granting custody to a parent would be detrimental to the child and that granting custody to the nonparent is required to serve the best interest of the child. Allegations that parental custody would be detrimental to the child, other than a statement of that ultimate fact, shall not appear in the pleadings. The court may, in its discretion, exclude the public from the hearing on this issue. [¶] (b) Subject to subdivision (d), a finding that parental custody would be detrimental to the child shall be supported by clear and convincing evidence. [& para;] (c) As used in this section, `detriment to the child includes the harm of removal from a stable placement of a child with a person who has assumed, on a day-to-day basis, the role of his or her parent, fulfilling both the childs physical needs and the childs psychological needs for care and affection, and who has assumed that role for a substantial period of time. A finding of detriment does not require any finding of unfitness of the parents. [¶] (d) Notwithstanding subdivision (b), if the court finds by a preponderance of the evidence that the person to whom custody may be given is a person described in subdivision (c), this finding shall constitute a finding that the custody is in the best interest of the child and that parental custody would be detrimental to the child absent a showing by a preponderance of the evidence to the contrary."
Prior to 1969, the parental preference doctrine "embodied both a requirement that a custody order in favor of a nonparent rest upon a finding of parental unfitness, and the limitation that such an order would be made only in extreme cases." (In re B. G., supra, 11 Cal.3d at p. 698, italics added.) The enactment of former Civil Code section 4600, now section 3041, changed the focus of a custody dispute between a nonparent and a parent, from the unfitness of the parent, to the detriment to the child. "The Legislature did not, however, intend to disturb the judicial practice of awarding custody to nonparents in preference to parents only in unusual and extreme cases." (In re B. G., at p. 698.)
Effective January 1, 1994, sections of the Civil Code were repealed and replaced with equivalent provisions in the Family Code. Former Civil Code sections 4600, subdivisions (b) and (d) and 4601, subdivision (a) were continued in sections 3040 and 3041 without substantive change. (Cal. Law Revision Com. com., 290 Wests Ann. Fam. Code (1994 ed.) foll. § 3040, p. 178, foll. § 3041, p. 236.)
Thus, in 2000 and 2001 when the temporary and final orders granting Pamela partial custody of the children were entered, it was still the law that absent consent of the parents, awards of custody to a nonparent could be made only in unusual and extreme cases and was prohibited absent an "express finding that parental custody would be detrimental to the child." (In re B. G., supra, 11 Cal.3d at p. 683.) Moreover, the finding was required to be "supported by evidence showing that parental custody would actually harm the child." (Ibid.) It was also the law that a parent could not be deprived of his or her right to the companionship, care, custody, and management of his or her children without affording the parent adequate notice and an opportunity to be heard. (Id. at pp. 688-689.)
B. The August 18, 2000 stipulated order must be construed as temporary in nature.
Regardless of how the custody issue came before the court in August 2000, it is clear that what Tammy and Pamela sought was modification of the 1997 custody order, a modification that would strip Anthony (then the custodial parent) of his custody rights, and award joint custody of the children to Tammy and Pamela, a third party.
In August 2000, when the stipulated order granting partial custody of the children to Pamela was made, the custody order then in effect was the 1997 order awarding Tammy and Anthony joint legal custody, Anthony primary physical custody, and Tammy visitation.
"[A] party seeking to modify a permanent custody order can do so only if he or she demonstrates a significant change of circumstances justifying a modification." (Montenegro v. Diaz (2001) 26 Cal.4th 249, 256.) Upon receipt of Pamelas August 18, 2000 order to show cause, the trial court issued two orders. One is marked "temporary." The other is not. The second order, based on a stipulation signed by Tammy and Pamela, purported to modify, without the custodial parents consent, a final custody judicial determination rendered three years prior to the signing of the stipulation. The problem is that the stipulation signed by Tammy and Pamela was predicated on a revocation of Anthonys custody rights, and his rights were never properly revoked. In addition, the second "stipulated" order does not have the indicia of finality required of a final judicial custody determination. (See Montenegro v. Diaz, supra, 26 Cal.4th at p. 256.) We therefore conclude that the August 18, 2000 stipulated order must be construed as temporary in nature.
It appears the trial court determined that it had subject matter jurisdiction over Pamelas petition for a joint custody award. Although Anthony and Pamela were never married, they reared Brittany and Courtney together for a period of about seven years. Thus, Pamelas status is akin to that of a stepparent. California courts have consistently denied stepparents the opportunity to petition for custody of their stepchildren in the absence of parental consent to such custody arrangements. (See In re Marriage of Hinman (1992) 6 Cal.App.4th 711, 716; In re Marriage of Lewis & Goetz (1988) 203 Cal.App.3d 514, 518 [although section 3040 sets out substantive rules for custody determinations, it does not, in and of itself, create subject matter jurisdiction over custody].) In August 2000, the court had no information concerning Anthonys position with respect to whether he opposed an award of custody to Pamela. However, the court did have before it Tammys declaration wherein she asked that Pamela be joined as a party to the dissolution action, and declared that it would be "extremely harmful to the girls if Anthony . . . were awarded custody of the children." The court also had before it Pamelas declaration wherein she averred that she had been the childrens primary caregiver for a substantial period of time, and that in July 2000, Anthony, the custodial parent, had moved out of the family residence and left the children in her care. Under these unusual circumstances, we conclude the trial court had subject matter jurisdiction over the issue of whether it would be proper to award joint custody to Pamela, a nonparent.
Although Tammy obviously considered the August 18, 2000 order to be a final order, she did not appeal the order. Nor did she file a motion to set it aside. Her only attacks on the order came in response to Pamelas May 23, 2001 order to show cause and in a document filed in support of Anthonys order to show cause seeking to terminate Pamelas custody rights. These attacks were filed nearly a year after the August 18, 2000 stipulated order was entered.
C. The July 23, 2001 order was final as to Anthony, Pamela and Tammy.
The trial court, obviously realizing that no final order modifying the existing 1997 custody order could be issued in the absence of notice to Anthony and a hearing, set Pamelas August 18, 2000 order to show cause for hearing on July 19, 2001. Anthony, who was served by publication, nonetheless received actual notice of the hearing when Tammy advised him of the date and time. Tammy and Pamela appeared, as did Anthony. Although Tammy and Pamela were each represented by counsel, Anthony was not. When he asked to address the court, his request was refused. The trial court found that a default had been entered as to Anthony and that a stipulated order previously had been entered as to Tammy. On July 23, 2001, the court issued a final order directing that custody of Brittany and Courtney would "remain pursuant to the stipulated order entered August 18, 2000." Neither Tammy nor Anthony appealed the July 23, 2001 order.
A court is without jurisdiction to make a final custody order taking a child from its custodial parent in the absence of notice and a hearing. (Titcomb v. Superior Court (1934) 220 Cal. 34, 40; see also In re B. G., supra, 11 Cal.3d at p. 689 [the "total absence of notice in any form cannot comport with the requirements of due process"]; McDowell v. Orsini (1976) 54 Cal.App.3d 951, 961 [The absence of reasonable notice and an opportunity to be heard "is by itself fatal to the validity of [an] order relating to custody and visitation rights"].)
D. The trial court intended to modify the July 23, 2001 order when it rendered its August 22, 2002 order reducing Tammys custodial time.
Pamelas May 23, 2002 order to show cause sought to modify the August 18, 2000 stipulated order—an order we have concluded is temporary in nature. The record reflects that in August 2002, only one final custody order existed, i.e., the July 23, 2001 order granting Anthony visitation and granting joint custody to Tammy and Pamela. The order specifically incorporated the terms of the courts August 18, 2000 stipulated order. Although Pamelas May 23, 2001 order to show cause was filed two months before the July 23, 2001 order was entered, the hearing on her order to show cause was continued so that it could be heard at the same time as Anthonys order to show cause requesting that Pamelas custody be terminated. Because the July 23, 2001 order specifically incorporates the terms of the August 18, 2000 stipulated order, and because it is clear that what the trial court intended in August 2002 was to determine whether the order stripping Anthony of his custodial rights and granting joint custody of Brittany and Courtney to Tammy and Pamela should be modified, we will construe the August 22, 2002 order as modifying the July 23, 2001 order. To construe the proceedings in any other fashion would be to elevate form over substance. (See Civ. Code, § 3528 ["The law respects form less than substance."]; see also Moore v. Gosbey (1933) 130 Cal.App. 70.) This we decline to do.
E. That portion of the August 22, 2002 order reducing Tammys custodial time must be affirmed.
During the hearing that led to the August 22, 2002 order, the court had before it two orders to show cause. The first, filed by Pamela, sought a reduction of Tammys custodial time. The second, filed by Anthony, sought termination of Pamelas custody rights. The court also had before it Tammys claim, made in response to Pamelas order to show cause, and in support of Anthonys order to show cause, that she had been coerced into signing the August 14, 2000 stipulation, and that the August 18, 2000 stipulated order was therefore invalid. The trial court denied Anthonys motion to terminate Pamelas custody rights, impliedly rejected Tammys claim of coercion, and granted Pamelas motion to modify the order granting Tammy and Pamela joint custody of Brittany and Courtney by awarding Pamela "primary physical custody" of the children "at all times not awarded to either" Tammy or Anthony. Because Anthony did not seek review of the August 22, 2002 order, we need not consider the propriety of the trial courts denial of Anthonys order to show cause. Nor are we required to review the trial courts implied finding that Tammy was not coerced into signing the August 14, 2000 stipulation—because Tammy has failed to raise the issue properly on appeal. Thus, our concern is with the trial courts decision to reduce Tammys custodial time, and its denial of Tammys request that Pamelas custody rights be terminated. In order to resolve these issues, we must first decide what standard the trial court was required to apply.
Although Anthony claims to be an "interested party," and has submitted a document indicating he "joins" in Tammys appeal, we find no authority allowing such joinder.
Although Tammy mentions the alleged coercion in connection with this appeal, she has failed to support the point with pertinent citations of authority. We therefore treat the point as waived. (Badie v. Bank of America (1998) 67 Cal.App.4th 779, 784-785.) We note that even if the claim had been properly raised, it would have failed given the paucity of evidence presented by Tammy concerning her claim of fraud.
The parties have cited, and we have found, no authority setting forth the standard that trial courts are required to apply where, as here, a third party having partial custody of a child seeks to modify the custody order so as to reduce the biological parents custodial time. We believe, however, the trial court was required to apply the change of circumstances rule.
Once a final judicial custody determination is in place, courts are required to preserve the established mode of custody unless some significant change in circumstances indicates that a different arrangement is in the childs best interests. (Montenegro v. Diaz, supra, 26 Cal.4th at p. 256.) Under the changed circumstance rule, "a party seeking to modify a permanent custody order can do so only if he or she demonstrates a significant change of circumstances justifying a modification." (Ibid.)
Pamela claims the change of circumstances rule is inapplicable. Citing In re Marriage of Birnbaum (1989) 211 Cal.App.3d 1508, she asserts that because she sought only a reduction of Tammys custodial time, rather than a change of physical or legal custody, any change in the actual custodial periods allotted does not constitute a change of custody which must be supported by a showing of change of circumstances. In other words, the trial court was required to apply nothing more than a "best interests of the child" standard.
We reject the "best interests of the child" standard suggested by the Birnbaum court. Birnbaum held that "when parents have joint physical custody of their children, an order modifying the coparenting residential arrangement does not constitute a change of custody." (In re Marriage of Birnbaum, supra, 211 Cal.App.3d at p. 1510.) We respectfully disagree with Birnbaum to the extent it may be read as requiring no showing of a change in circumstances by a parent seeking to change a child custody arrangement which resulted from a judicial decree on the issue of custody. Moreover, because the custody order sought to be modified in the instant case involves a nonparent order, we believe the "change of circumstances" standard is more appropriate.
Tammy, too, is of the opinion that the change of circumstances rule does not apply, especially where, as here, the trial court is called upon to modify an order granting joint custody to a parent and a nonparent—an order that had been in effect two years prior to the August 2002 hearing. As we understand Tammys argument, she claims that whenever a modification is sought of a nonparent custody order, sections 3040 and 3041 must be applied. In other words, the trial court is required to treat the modification motion in the same way it would treat an initial request for a nonparent custody order, i.e, it would give parents preference under section 3040, and could only make a nonparent custody order if the court found that it would be detrimental to the children to award custody to the parent, and that it would be in the best interests of the children to grant custody to a nonparent.
The law is clear that in an initial custody dispute between a parent and a nonparent, California applies a presumption or preference in favor of the parent. (In re Guardianship of Simpson, supra, 67 Cal.App.4th at p. 921.) Once a final determination of custody has been made courts require the party seeking to modify the order make a showing of significant change of circumstances so affecting the child that a modification is essential to the childs welfare. (Montenegro v. Diaz, supra, 26 Cal.4th at p. 256.) "`[T]he changed-circumstance rule is not a different test, devised to supplant the statutory test, but an adjunct to the best-interest test. It provides, in essence, that once it has been established that a particular custodial arrangement is in the best interests of the child, the court need not reexamine the question. Instead, it should preserve the established mode of custody unless some significant change in circumstances indicates that a different arrangement would be in the childs best interest. The rule thus fosters the dual goals of judicial economy and protecting stable custody arrangements." (Ibid.) These dual goals will not be promoted if we depart from the change of circumstance rule when the parties to a nonparent custody order seek modification of the order—either to reduce the parents custodial time or to terminate the nonparents custodial rights. We therefore conclude that the trial court was not required to apply sections 3040 and 3041. Rather, was required to apply a change of circumstances standard.
Pamela points out that even if the trial court was required to apply sections 3040 and 3041, it did so. And, she claims, the findings were supported by substantial evidence. We agree. Although the trial court was not required to make a section 3041 finding of detriment, the courts finding that it would be detrimental to the children to grant primary physical custody to either biological parent is amply supported by the evidence. For example, the evaluator concluded that Pamela was the psychological parent, and that although both Tammy and Pamela were good mothers, it was Pamelas care that had caused the children to be well adjusted individuals. The evaluator concluded that it would be detrimental to remove the children from Pamelas care. In addition, the evidence demonstrated that Pamela had been the primary caregiver for the children for about seven years at the time the joint custody order was entered. Moreover, we believe the evidence demonstrates that the children would be actually harmed if removed from Pamelas care — given the testimony offered by the childrens teacher and the principal of their school. The harm contemplated by the statute, we believe, does not mean physical harm alone. It can mean, for example, the harm that would result should a childs education be disrupted by a change in schools and by removing a child from the custody of the individual best suited to provide assistance with the childs homework.
Although the record reflects that the trial court did not apply a change of circumstances standard in issuing the August 22, 2002 order, this does not mean the order must be set aside. "An application for modification of an award of custody is addressed to the sound discretion of the trial court, and its discretion will not be disturbed on appeal unless the record presents a clear case of abuse of that discretion." (Messer v. Messer (1968) 259 Cal.App.2d 507, 509.) "Under this test, we must uphold the trial court `ruling if it is correct on any basis, regardless of whether such basis was actually invoked." (Montenegro v. Diaz, supra, 26 Cal.4th at p. 255.)
Pamelas order to show cause sought a reduction of Tammys custodial time. In response to Pamelas order to show cause, Tammy asserted that Pamelas custody rights should be terminated. Each therefore had the burden of proving a change of circumstances sufficient to support their positions. Tammy concedes on appeal that a change of circumstances occurred after the August 18, 2000 stipulated order was entered. And, evidence contained within the record supports a finding of change of circumstances. The evidence demonstrates that prior to, and after, the joint custody order was entered in July 2001, the tension between Pamela and Tammy continued to escalate to such a degree that the children were being adversely affected by the dissension. Although the evidence was conflicting, the trial court concluded that Tammy, not Pamela, was the cause of the "bitter" conflict. The trial courts conclusion is supported by the evidence. We therefore conclude that the trial court did not err in modifying the prior custody order by reducing Tammys custodial time and by allowing Pamelas choices with regard to educational issues to take precedence.
F. The September 12, 2002 order is not supported by the evidence.
Pamelas August 14, 2002 order to show cause was based on Pamelas contention that Anthony and Tammy had discussed the custody proceedings with Brittany and Courtney. The trial court agreed, and on September 12, 2002, issued an order modifying the August 22, 2002 order. Tammy was directed to attend parenting classes and anger management classes for a period of six months during which time her visits with Brittany and Courtney were to be monitored and reduced to four hours every other Sunday. The parties were restrained and enjoined from discussing the case, custodial arrangements or the other parties, and from making disparaging remarks about the other parties.
The evidence used to reduce Tammys custodial time to four hours every other weekend consisted entirely of declarations. While such declarations are permissible in custody proceedings (Reifler v. Superior Court (1974) 39 Cal.App.3d 479, 485), the admissibility of declarations is measured by the same standards as those applied to oral testimony. (McLellan v. McLellan (1972) 23 Cal.App.3d 343, 359.) The declarations admitted into evidence over Tammys objection included declarations submitted by Pamela, her brother and her mother. Each of these declarations quoted statements attributable to Brittany and Courtney. These statements were offered for the truth of the matter asserted to prove Pamelas claim that Tammy violated restraining orders issued by the trial court. The court overruled Tammys objection to the declarations on the basis that the statements of the children were "received not for the truth of the matter asserted but for their state of mind." The problem, of course, is that the childrens state of mind was not at issue in the order to show cause leading to the September 12, 2002 hearing. The issue before the trial court was whether Tammy had, in violation of a restraining order, discussed the case with Brittany and Courtney. We therefore conclude that the September 12, 2002 order is not supported by substantial evidence and must be set aside.
This means that the parties are bound by the August 22, 2002 order.
G. The trial court erred in finding that Tammy violated a restraining order.
The trial court found that Tammy had violated the trial courts "admonishment" by "discussing the subject matter of this action with the minor children." The trial court did not, however, specify which restraining order Tammy allegedly violated. We have reviewed the superior court file, as well as the exhibits filed by the parties. Although there were orders in effect directing Tammy not to make disparaging remarks about Pamela, and to refrain from discussing the psychological evaluation with the children, the trial court did not make a finding that Tammy made disparaging remarks. Instead, the trial court opined that Tammy had discussed the case with the children. As far as we can determine, no restraining order directing Tammy not to discuss the case was in effect at the time Tammy purportedly violated the restraining order. Thus, that portion of the August 22, 2002 order finding that Tammy violated the trial courts "admonishment" not to discuss the case must be set aside.
It appears the trial court was upset by a discussion Tammy and Anthony had with the children wherein Anthony advised the children that he and Pamela were never married; that they had, in fact, lied to the children by telling them that they had been married; and that Anthony and Pamela had also lied to Tammy concerning the same topic. The trial court apparently believed that this was an inappropriate topic to discuss with the children.
H. Tammy and Anthony are not prohibited from filing for a modification of custody should they be able to show a change of circumstances.
The record shows that on August 14, 2000, Tammy signed a stipulation agreeing to share custody of Brittany and Courtney with Pamela, and that on September 12, 2002, Anthony executed a stipulation agreeing to an award of partial custody to Pamela. It appears that Tammy, and perhaps Anthony, now object to a third party custody order. We know of no authority prohibiting parents who have previously consented to a nonparent custody order from revoking their consent upon a change of circumstances. The question thus becomes what effect such a revocation would have on the issue of custody. In our opinion, it is but one factor the trial court will be required to consider should Tammy and/or Anthony move to modify the August 22, 2002 order in an attempt to terminate Pamelas custody based on an alleged change of circumstances.
In the event Pamela, Tammy or Anthony file a motion to modify the July 23, 2001 order, the trial court may wish to interview Courtney and/or Brittany. If the court determines that they are mature enough to articulate their wishes with respect to custody, the court may consider their preferences. (§ 3042, subd. (a); In re Marriage of Rosson (1986) 178 Cal.App.3d 1094, 1103, disapproved on other grounds in In re Marriage of Burgess (1996) 13 Cal.4th 25, 38-39, fn. 10.)
We cannot conclude without expressing our distress over the circumstances of this case. Pamela, Tammy and Anthony share responsibility in creating this situation. None are blameless. We urge them to find a way to resolve their differences and to work together to create a safe, stable environment for Brittany and Courtney.
III. DISPOSITION
That portion of the August 22, 2002 order finding that Tammy violated an "admonishment" of the court is reversed. The August 22, 2002 order is otherwise affirmed. The trial court is directed to set aside the September 12, 2002 order. The parties are to bear their own costs.
We concur: J. DOI TODD and J. ASHMANN-GERST.