Opinion
F086401
01-26-2024
In re the Marriage of ALICIA LEANN PARSELS and CHRISTOPHER ARNULFO ALEMAN SANCHEZ. v. CHRISTOPHER ARNULFO ALEMAN SANCHEZ, Respondent. ALICIA LEANN PARSELS, Appellant,
Law Office of Matthew L. Green and Matthew L. Green for Appellant. Christopher Arnulfo Aleman Sanchez, in pro. per., for Respondent.
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Tulare County No. PFL293573 . Glade F. Roper, Judge. (Retired Judge of the Tulare Sup. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.)
Law Office of Matthew L. Green and Matthew L. Green for Appellant.
Christopher Arnulfo Aleman Sanchez, in pro. per., for Respondent.
OPINION
DE SANTOS, J.
Alicia Leann Parsels (mother) and Christopher Arnulfo Aleman Sanchez (father) had two children, a now six-year-old son and 10-year-old daughter, before dissolving their seven-year marriage. After a trial on custody, the trial court awarded primary physical custody of the children, who were living in California with mother, to father, who moved to the state of Washington four months before the parties' separation.
Mother, who represented herself in the trial court but is represented by counsel on appeal, challenges the trial court's custody order, arguing she was deprived of due process because father did not file a separate noticed motion requesting custody of the children in Washington, and the trial court proceeded with a contested hearing when the hearing was set to only receive the mediator's report. She also contends the trial court abused its discretion in granting father primary physical custody. We agree that mother was not provided with appropriate notice of father's move-away request and that the trial court abused its discretion in granting father primary physical custody. Accordingly, we reverse.
FACTUAL AND PROCEDURAL BACKGROUND
Mother and father, who married in 2015, and their two children lived together in Pixley until March 2022, when father went to the state of Washington for a better paying job. On July 1, 2022, while mother and the children were visiting father in Washington, mother asked for a divorce and returned to California with the children.
In October 2022, mother, who represented herself throughout the trial court proceedings, filed a petition for dissolution of the marriage when the children were five and nine years old. She also filed a request for order (FL-300) seeking full physical and legal custody of the children. Mother noted father "will not work out an agreement" with her. She suggested father be allowed to visit whenever he was in California and the children stay with him in Washington every other holiday and every other summer. The children attended school in California and were comfortable there, as California had been their home for many years. Mother believed it would be hard on the children to go back and forth from California to Washington, as it is a long drive. Mother asserted she had been the children's primary caregiver their whole lives, while father was in and out of the home.
Mother filed a declaration under the Uniform Child Custody Jurisdiction and Enforcement Act in which she listed where the children had lived: (1) from their births until December 2017, they lived in Pixley, California; (2) from December 2017 to June 2018, they lived in the state of Washington; and (3) since June 2018, they lived in Pixley. Mother declared that the children lived with her their entire lives.
A hearing on mother's custody request was held on November 16, 2022. While father appeared at the hearing, he had not filed a response. Father, who represented himself throughout these proceedings, requested a continuance, which the trial court granted. The trial court continued the hearing to December 19, 2022.
Father did not appear at the December 19, 2022 hearing or file a response. Accordingly, the trial court conducted an uncontested hearing and ordered sole legal and physical custody of the children to mother, with visitation to father as mutually agreed between the parents. The trial court set a hearing for March 16, 2023, and ordered that witness and exhibit lists be filed at least 10 days before the next hearing date.
All subsequent dates are to the year 2023, unless otherwise stated.
Father filed a responsive declaration to mother's request for order on form FL-320 on February 10. Father consented to "Child Physical Custody." He asked that the parties to be given joint legal custody with physical custody to mother, but he did not consent to the proposed visitation schedule. Father declared that he had always been present in the children's lives and fully supported them, while mother was a stay-at-home mother who took the children to appointments and got them ready for school. Father requested joint legal custody because he and mother always made decisions together. Father documented the difficulties he claimed he had with mother over visits during the summer and winter breaks, and the difficulty he was having communicating with mother via text message.
Father filed a second declaration on March 10 on form MC-030, to provide new information that changed since his prior response. Father declared that during a weekend visit with the children in California in February, daughter told him she was not staying in Pixley but rather she and son stayed at maternal grandmother's house in Delano and slept on the couch, and they did not see mother often and missed her. On some weekends, daughter said they stayed with mother at her girlfriend's apartment in Porterville, where they slept on the couch. Father spoke with maternal grandmother, who explained the children stay with mother at mother's girlfriend's apartment except when mother is working. When mother works for a few days, the children stay with maternal grandmother.
Father spoke with the owner of the property in Pixley where mother had been living. The property owner had not seen mother or the children since about October 2022. The property owner put a lock on the gate a few months ago and she knew mother had not tried to access the property because mother did not ask to unlock the gate. Mother had not contacted the property owner in months.
Father texted mother to tell her he knew the children were not living in Pixley and were instead living on maternal grandmother's couch. Father asked mother's intentions regarding the children's living situation. When he did not hear from her, father texted maternal grandmother and asked her to let mother know he was trying to reach her about the children. After a few days, mother responded that the children lived with her at her girlfriend's apartment; maternal grandmother picked them up there, while mother picked them up from maternal grandmother's home.
Father acknowledged the children wanted to live with mother and he did not "want to take that from them," but if they were not living anywhere and sleeping on couches, he had two bedrooms available for them at his home. Father was okay with leaving the children with mother in Pixley because he felt that was best for them, but he believed it was stressful on the children to not have either parent in their lives regularly. Father asserted he was "fully capable of housing both my children here in Vancouver, WA and if [mother] doesn't have plans to reside the children with her, I would like them to live here with me."
At the March 16 hearing, the trial court noted father had filed a responsive declaration on February 10. The trial court took the contested hearing off calendar, referred the parties to "Child Custody Recommending Counseling" (CCRC), and set a "Review Hearing on Counseling Report" for April 21.
At the CCRC mediation on April 5, each parent stated they wanted sole legal and physical custody of the children, with the other parent having visitation during school breaks. Mother was concerned that father lived in Washington, stating he made the decision to move to Washington on his own, leaving her to care and provide for the children, and although father had every chance to be closer to his children, he chose not to because he started his own family in Washington. Mother was concerned because father had been verbally and physically abusive toward her and the children in the past. Father wanted the children to live with him in Washington. Father was concerned with the children's living environment, as mother always left the children with maternal grandmother and spent little time with them because she was working. Father stated he could care and provide for the children if they were allowed to be in his care.
The CCRC counselor was concerned about father's request for the children to live with him in Washington, as he had not filed the proper court documentation to make such a request. The counselor noted the children had lived in Tulare County since birth and were attending school there. The counselor also was concerned about father's living situation, noting he had lived in Washington since March 2022, and while he admitted he only was supposed to be there temporarily to work, he did not return home when mother advised him that she no longer wanted to be with him and instead stayed and started a family. Mother denied not caring for the children. Although maternal grandmother watched the children while mother worked, mother stated she spent all her nonworking time with the children. The counselor concluded "[i]t does not appear to be in the best interest of the children to move to the state of Washington with the father at this time" citing the children's roots to Tulare County. Instead, the counselor recommended that mother have sole physical custody of the children with father receiving parenting time during school breaks and when he could come to Tulare County. The counselor recommended the matter "Proceed to Contested Hearing today-no need for further investigation."
Meanwhile, mother had filed a request for a domestic violence restraining order on March 23, which was heard on April 14. Mother and father both testified at the hearing. In a written order filed on April 14, the trial court denied the request. While mother testified that father had been abusive toward both her and her daughter, she could not provide any specific dates or places when the abuse occurred. Father admitted to accidentally breaking mother's glasses and throwing her phone on the ground over six years ago but denied any other abuse. Mother alleged father sent her abusive texts in March, but father produced texts which showed he did not use threatening, vulgar, demeaning, or abusive language, or engage in any kind of abuse. The trial court concluded mother did not produce any persuasive evidence that father engaged in domestic violence.
At the April 21 hearing, the trial court first noted that it denied mother's request for a domestic violence restraining order. Each parent confirmed they received the CCRC report and that they disagreed with the recommendation. Mother wanted sole legal and physical custody, with visitation in California only, while father wanted full custody. The trial court asked the parties if they were ready to proceed to the contested hearing that day. Mother responded yes. The trial court asked if she had any other witnesses she intended to call. Mother wanted daughter, who was nine years old, to testify and asked to reschedule the hearing so daughter could be present. When asked what daughter would testify to, mother stated she would explain why she did not want to live with father and instead wanted to live with mother. Father confirmed that he was ready to proceed to the hearing and he did not have any other witnesses that he intended to call. When mother again stated she wanted daughter to testify, the trial court denied the request, stating it was "not going to hear the child" because "[s]he's a child." The court proceeded with the contested hearing.
Mother told the court that she should have sole physical and legal custody of the children because she had been taking care of them since their births, while father had been in and out of the home. She explained that father went to Washington to work and traveled back and forth, but he decided to stay there when they split up. After that, father did not try to come back and be with the children and father told her she could do whatever she wanted with the children if he had the car to get to work. Father started a family in Washington, and his girlfriend was currently pregnant.
Mother further testified that father mistreated and abused her and the children, and she believed father wanted legal custody so he could control her. The children had always lived with her, and their immediate family was in California. Mother admitted maternal grandmother watched them as mother was a single parent who worked. Mother picked the children up from maternal grandmother's house every day and they stayed in mother's apartment in Porterville. Mother took the children to school in Pixley so they could finish the school year there. Mother believed the children would be mistreated if they lived with father and there was no immediate family in Washington to watch them. Mother claimed father worked six to seven days a week and she believed father's girlfriend would be left to watch the children.
The trial court asked how father mistreated the children. Mother responded that he got angry and aggressive, and he had a short temper and frustrated easily. Mother asserted father pulled daughter's hair and ears, spanked her for reasons mother did not understand, and hit daughter with belts, cords, and cables. Mother claimed she personally saw these things when she and father were living together.
Mother testified she and father lived together throughout their marriage-they married in 2015 and separated in July 2022. Since the separation the children lived with mother in a two-bedroom apartment. The children slept in mother's bedroom and shared the same bed as mother and her girlfriend. Mother explained the children slept with her because they did not like being in the dark or by themselves as they were traumatized because father threw them in a dark room by themselves. Mother did not plan to continue that sleeping arrangement for "very long" and she planned on getting daughter her own bed if she wanted to sleep in it. While mother was not concerned about the four of them sleeping in the same bed, she did not have a problem with getting the children their own beds.
Mother was employed as a local truck driver-she worked from 8:00 a.m. to 5:30 p.m. The children attended school in Pixley, so mother took them to her sister's house at 7:30 in the morning and her sister sent them to school, while maternal grandmother picked the children up from school at 2:40 p.m. The children attended school in Pixley because mother had recently moved from Pixley, and she wanted the children to finish the school year there. Mother was not sure where the children would attend school the next school year, since it might be more convenient for maternal grandmother to put them in school in Delano.
Father testified he had always been present until March 2022 and denied abusing the children or that they feared him. Father asserted mother did not claim abuse until he requested full custody. Father lived in a five-bedroom house in Washington with his girlfriend and mother-in-law, where the children could each have a room and their own bed. When asked if it was true that he and mother lived together until July 2022 and that was when they separated, father responded yes and added that mother wanted to separate. Father wanted the children to live with him because he did not believe they lived with mother, and they were mainly with maternal grandmother in Delano. He based that on what his children and maternal grandmother told him, and while mother claimed she had the children every day after school, whenever he called the children, no matter what time or day, they were at maternal grandmother's house.
Father asserted that mother told people she moved to Porterville at different times-she told the CCRC counselor she moved on April 1; the domestic violence forms mother filed on March 23 showed a Porterville address; screen shots attached to his declaration showed mother stating, as of February 24, that she lived in an apartment; maternal grandmother told him on February 13 that mother lived in an apartment in Porterville; and the family's previous landlord in Pixley told him that she had not seen mother or the children since October 2022. While father admitted spanking the children, he denied pulling daughter's hair or ear or hitting the children with cords or belts. Father denied working six or seven days per week, and said he worked from 8:00 a.m. to 4:30 p.m. Monday through Friday. If the children were with him, they would attend school a half-mile from his house, but he did not know the school hours. His girlfriend would take them to school and pick them up.
When the trial court asked mother if she had anything else to add, mother responded that she lived in Pixley until she "officially" moved into her apartment three weeks before, as she received her mail in Pixley. Mother accused father of making false accusations. Mother asserted the children had always been with her while father had been in and out of the home, and the children did not see him or grow up with him around, except when he came home from work for a couple hours. Mother stated it would hurt her if they lived with father, as they would be with "somebody they are unfamiliar with and somewhere where he is not going to be there for them and not even himself watching my children."
The trial court asked mother why father's situation was different from hers. Mother responded that she was watching the children, but she had to go to work to provide for them and she picked them up when she got off work and they saw her every day. Mother conceded the children would see father every day, but she did not feel comfortable with them being watched by someone who was not their immediate family and with whom mother was unfamiliar. Mother stated the children had lived their whole lives in California; they only lived in Washington for a year when son was six months old, and the children did not know the area. The trial court took the matter under submission. The trial court asked about mother's request for child support. Mother stated she was withdrawing the request because father had not provided for the children in the months he was gone, and she had "been taking care of the children just fine on my own and I just want to continue doing that."
On April 24, the trial court issued a written child custody and visitation order granting the parents joint legal custody, with father having final decisionmaking authority, and joint physical custody, with the children living primarily with father. The trial court established a parenting plan whereby the children would remain with mother until August 1, when the children would begin to reside primarily with father. The trial court granted mother parenting time with the children any weekend she was able to visit Washington, and during winter and summer school breaks.
In explaining its order, the trial court first noted that while mother alleged at the contested hearing that father abused her and the children, in the domestic violence hearing, the court determined there was no persuasive evidence that father engaged in domestic violence and found mother not to be a credible witness. In addressing mother's request for sole legal and physical custody, the trial court stated it considered the factors set forth in In re Marriage of LaMusga and In re Marriage of Burgess in reaching a decision.
The trial court found: (1) the children formerly lived in Washington State, where father moved for employment, prior to moving to California; (2) father had a five-bedroom house with beds for the children while mother lived in an apartment and the children slept in the same bed as mother and her "romantic partner"; (3) father lived a half-mile from the school the children would attend while mother lived in Porterville and the children attended school about a half-hour's drive away; (4) maternal grandmother picked the children up from school and cared for them while mother worked, but father testified that whenever he calls the children are at maternal grandmother's house; and (5) the children would be able to walk home from school at father's house. The trial court noted the children were young and it did not consider them of sufficient age to express a reasoned opinion about where to live, although the trial court gave "slight weight" to daughter's opinion, as conveyed by mother, that she wished to live with mother.
The trial court found "it is in the best interest of the children for Father to have primary custody, with substantial time with Mother when they are not in school." The trial court stated the children's "living and school arrangements are much better with Father." It did not appear to the trial court that the parents had "effectively worked together for the best interests of the children." The trial court was "concerned about Mother's unfounded claims of abuse by Father" and opined father was more likely to be an effective co-parent.
The trial court noted the children would not have to travel a considerable distance to attend school at father's house and they would have individual rooms and beds. The trial court found "[t]he current arrangement whereby Mother sleeps with both children full time in the same bed with her romantic partner is inappropriate for children of this age." The trial court stated that due to the distance between the parents' homes, "the children should travel back and forth as infrequently as practicable while still allowing both parents to have significant time with the children."
Mother, through an attorney retained after the custody hearing, appealed from the custody order. At mother's request, we issued a stay of the April 24, 2023 custody order until this court issues a final decision in the appeal.
DISCUSSION
Mother contends the trial court violated her due process rights because (1) father failed to file a separate noticed motion asking to relocate the children to Washington, and (2) the trial court proceeded with a contested hearing on custody even though the hearing was set to review the CCRC report. Mother asserts that as a result, she had no reason to believe the trial court would consider father's request to relocate the children at the custody hearing. We agree that mother had insufficient notice that father was requesting what amounted to a change in custody.
In mother's request for order, she requested sole physical and legal custody of the children. When father responded to her request by filing a "Responsive Declaration to Request for Order" using form FL-320, he consented to mother's request for physical custody but requested joint legal custody of the children. One month later, he filed a supplemental declaration using form MC-030 in which he stated that the children wanted to live with mother, but if mother "doesn't have plans to reside the children with her, I would like them to live here with me." Father, however, did not file a revised form FL-320 requesting a custody arrangement other than what he originally proposed.
At the CCRC session, father proposed having sole legal and physical custody of the children in Washington. At the outset of the April 21 hearing, when the trial court was reviewing the CCRC counselor's recommendations with the parties, mother asked for sole physical and legal custody of the children, stating she did not want father to take the children out of California, while father asked for full custody of the children. After that, the trial court asked mother if she was ready to proceed with the contested hearing that day, to which mother responded, "Yes." Father also stated he was ready to proceed with the contested hearing.
Family Code section 213 provides that a party responding to a motion "may seek affirmative relief alternative to that requested by the moving party, on the same issues raised by the moving party, by filing a responsive declaration within the time set by statute or rules of court." (Fam. Code, § 213, subd. (a), italics added; see In re Marriage of Seagondollar (2006) 139 Cal.App.4th 1116, 1127.) If the responding party seeks affirmative relief on issues not raised by the moving party, however, the party must file a separate request for an order with sufficient notice before the hearing. (Code Civ. Proc., § 1005, subd. (b); Cal. Rules of Court, rule 5.92(g)(2).)
Further undesignated statutory references are to the Family Code.
Mother contends father was required to file a separate request for order requesting relocation of the children to Washington. But this was an initial custody determination, which required the trial court to choose a parenting plan that served the children's best interests, and it had wide discretion in doing so. (In re Marriage of Brown &Yana (2006) 37 Cal.4th 947, 955-956.) Since custody was the issue before the trial court, a separate noticed motion was not required for father to assert that it was in the children's best interest for him to be awarded custody at his home in Washington. (See, e.g., Brody v. Kroll (1996) 45 Cal.App.4th 1732, 1735-1736 [father not required to file his own order to show cause where he properly raised issue of custody in his response to mother's order to show cause requesting a move-away where his responsive declaration showed he opposed the move and requested custody of the minor].)
Even though mother placed custody in issue, father was required seek affirmative relief, i.e., placement of the children with him in Washington, in his responsive declaration by the time set by statute or rules of court. (§ 213, subd. (a).) The responsive declaration "must set forth facts sufficient to notify the other party of the declarant's contentions in response to the request for order and in support of any relief requested." (Cal. Rules of Court, rule 5.92(g)(1).) Father, however, did not file a response to mother's request for order in which he sought sole physical custody of the children. Instead, father agreed with mother's request for sole physical custody in his FL-320 form, and while he stated in his supplemental declaration filed a month later that he wanted custody if mother did not plan to have the children live with her, his request was conditional, and he did not amend his FL-320 form to request sole physical custody.
Thus, mother did not have notice father was seeking sole physical custody of the children in Washington until the CCRC mediation. At the mediation, father proposed having sole physical and legal custody of the children in Washington because he was concerned that it was maternal grandmother, not mother, who was caring for and parenting the children. As the counselor noted, father had not filed proper court documentation to make such a request. The counselor was concerned about the children moving to Washington, as they had lived in Tulare County since birth and were attending school and living with mother there, and on that basis, recommended that mother have sole physical custody.
We find this notice of father's intent to request full custody in Washington was insufficient to give mother an opportunity to address his request at the April 21 hearing, which was held about two weeks after the mediation. Due process guarantees" '"' "notice and opportunity for hearing appropriate to the nature of the case," '" '" and "requires 'the right to be heard in a meaningful manner.'" (In re Marriage of D.S. &A.S. (2023) 87 Cal.App.5th 926, 935.) Here, the lack of notice prevented mother from eliciting evidence to show it was not in the children's best interest to move to Washington.
The lack of notice was compounded by the trial court's erroneous analysis of the issue before it. In a move-away case where the court is making a permanent physical custody order for the first time, the court makes a de novo decision based on the best interests of the children under all the circumstances. (In re Marriage of Burgess (1996) 13 Cal.4th 25, 31-32, 40; Mark T. v. Jamie Z. (2011) 194 Cal.App.4th 1115, 1124-1125 (Mark T.).) The court has wide discretion to choose a parenting plan and resolve the move-away issue in a manner that advances the best interests of the children, considering such factors as the children's health, safety, and welfare; any history of abuse by a parent; and the nature and amount of contact with both parents. (§ 3011; Mark T., at p. 1125.) Relevant factors include the children's interest in stability and continuity in the existing custodial relationship; the distance of the move; the age of the children; the children's relationship with both parents; the relationship between the parents including their ability to communicate and cooperate and to put the children's interests above their own; the reasons for the proposed move; and the extent to which the parents are currently sharing custody. (In re Marriage of LaMusga (2004) 32 Cal.4th 1072, 1101.) The court must also consider "which parent is more likely to allow the child frequent and continuing contact with the noncustodial parent." (§ 3040, subd. (a)(1).) The court may ultimately "award custody either to both parents (joint or shared custody) or to only one parent (sole custody)." (In re Marriage of Brown &Yana, supra, 37 Cal.4th at p. 956.)
Here, mother had temporary sole physical custody of the children, but there had not been a final judicial custody determination. In that circumstance, neither parent is required to show the proposed move would be detrimental to the children. (F.T. v. L.J. (2011) 194 Cal.App.4th 1, 19-20.) Instead, the court must evaluate de novo what physical custody arrangement would be in the children's best interests considering the proposed move. (Id. at p. 22; Mark T., supra, 194 Cal.App.4th at p. 1124.) The paramount concern is the children's need for stability and continuity, and "the harm that may result from disruption of established patterns of care and emotional bonds." (Ragghanti v. Reyes (2004) 123 Cal.App.4th 989, 999.) The children's need for continuity and stability assumes an increasingly important role when custody continues for a significant period; in that situation, "the noncustodial parent has the 'burden of persuading the trier of fact that a change [in custody] is in the child's best interest.' [Citation.] But while the child's interest in continuity and stability is a factor that weighs heavily in the equation, it does not change the fact that if there was no existing final determination of what custody arrangement was in the child's best interest, the noncustodial parent does not have a burden to show that an existing arrangement is detrimental." (Ibid.)
On appeal, we review orders granting or denying move-away requests for abuse of discretion. (Mark T., supra, 194 Cal.App.4th at p. 1124.) "A trial court abuses its discretion if there is no reasonable basis on which the court could conclude that its decision advanced the best interests of the child." (Ibid.) We draw all reasonable inferences in support of the court's ruling and defer to the court's express or implied findings when supported by substantial evidence. (In re Marriage of Catalano (1988) 204 Cal.App.3d 543, 548.) Where, as here, a party does not request a statement of decision, we presume the trial court found every fact necessary to support its decision. (In re Marriage of Sabine &Toshio M. (2007) 153 Cal.App.4th 1203, 1219.)
The trial court's analysis of the children's best interest was based on an incorrect premise-that the children had been living in Washington with father and mother until the couple separated in July 2022. Although father testified he and mother had been living together from their 2015 marriage to their July 2022 separation, it is undisputed that, as father explained in his responsive declaration, he moved to Washington in March 2022 for a better paying job, leaving mother and the children in California, and he and mother decided to separate in July 2022, when mother and the children were visiting him in Washington. The evidence further shows the children had not lived in Washington since June 2018, when daughter and son were very young-only four years old and five months old, respectively.
Thus, by the time of the custody hearing, mother had primary custody of the children in California for over a year. Where, as here, a parent has sole physical custody of children for over a year and is their primary caretaker, the "paramount need for continuity and stability in custody arrangements," as well as "the harm that may result from disruption of established patterns of care and emotional bonds with the primary caretaker," "weigh heavily in favor of maintaining ongoing custody arrangements." (In re Marriage of Burgess, supra, 13 Cal.4th at pp. 32-33.) The trial court, however, gave no apparent consideration to the continuity and stability of the custody arrangement and did not consider or balance the harm the children would suffer from being removed from mother, who had been the children's primary caregiver and who father acknowledged the children wanted to reside with.
Since mother had custody of the children for a significant period, father, as the noncustodial parent, had the burden of persuading the court that a change in custody was in the children's best interest. (Burchard v. Garay (1986) 42 Cal.3d 531, 537; Ragghanti v. Reyes, supra, 123 Cal.App.4th at p. 999.) The evidence presented focused on a comparison of the children's living and school arrangements rather than the children's bond to each parent and whether disrupting their bond with mother as their primary caregiver, as well as their bond with maternal grandmother and other relatives in California, would harm the children. Moreover, although the children presumably were connected to their community and school in California, no evidence was presented to show whether the children would be adversely affected if those connections were severed.
The trial court's simple comparison of the living situations without considering the potential harm caused by lost connections with mother, as well as the children's relatives and community, was an abuse of discretion. We recognize there is evidence to support the trial court's finding that father would be more inclined to effectively co-parent with mother. (§ 3040, subd. (a) ["[i]n 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"].) But even if mother were unwilling to co-parent, that is only one among many factors the trial court was required to consider when determining the children's best interests. That finding does not overcome the trial court's failure to consider the harm a move to Washington would cause the children, as the children were moving to a place where they had not lived for years, with no family other than father, his girlfriend, and her mother, and with a minimal support system.
Father asserts the trial court could limit custody under section 3027.5, subdivision (b) because mother's abuse allegation made only after father asked to relocate the children to Washington shows she falsely accused him of abuse to interfere with his custody and visitation. That section, which applies to reports of "child sexual abuse," allows the court to limit a parent's custody or visitation if the court finds substantial evidence the parent reported "child sexual abuse" knowing the report was false when made and "with the intent to interfere with the other parent's lawful contact with the child." (§ 3027.5, subd. (b).) By its terms, the statute does not apply to reports of physical or emotional abuse of a child.
Notably, while the CCRC counselor recommended the children remain with mother because the children had roots in Tulare County, the trial court disregarded the recommendation without explanation. Based on this recommendation, the counselor did not believe further investigation was required. But since the trial court was considering moving the children out of state, further investigation was required to determine the children's best interest. At a minimum, given that both parties were self-represented, the trial court should have inquired further about the children's bonds to each parent, the support systems available to the children in California and Washington, and the impact a move to Washington would have on the children's well-being. (Cf. Ross v. Figueroa (2006) 139 Cal.App.4th 856, 866-867 [where parties are self-represented, the judicial officer's role "has many attributes of an inquisitorial as opposed to an adversarial process ... where the parties are presumed to be 'well counseled' by skilled and knowledgeable lawyers"].)
Father asserts there is no evidence the children's health, safety, and welfare would be jeopardized if the children lived with him. (See § 3020 [Legislature declares "it is the public policy of this state to ensure that the health, safety, and welfare of children shall be the court's primary concern in determining the best interests of children" when making custody orders].) But even if the children's health, safety, and welfare would not be affected if placed with father, the trial court was required to consider the potential harm of separating the children from their primary caregiver and the harm of disruption of established patterns of care and emotional bonds. The trial court, however, failed to do so.
In sum, mother was not provided notice that father was requesting a change of custody that would entail moving the children to Washington and the trial court abused its discretion when it ordered a change in custody to the noncustodial parent and allowed the children to move to Washington without considering the impact such a move. The court's error requires reversal and remand for reconsideration of father's move-away request and application of the correct legal standard.
DISPOSITION
The trial court's April 24, 2023 custody order is reversed, and the matter is remanded for further proceedings consistent with this opinion. Mother is awarded her costs on appeal.
WE CONCUR: POOCHIGIAN, Acting P. J. SMITH, J.