Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of San Diego County No. D505256, Patricia Garcia, Judge.
BENKE, Acting P. J.
In this child custody dispute, the family court entered an order providing legal and physical custody to the child's father. The record indicates there were no prior permanent custody orders. The family court's order is fully supported by the record. The child's mother had a continuing conflict with the father and with her current boyfriend and failed to obey the family court's earlier orders with respect to visitation. These circumstances and her failure to take her son for regular medical and dental examinations when she had custody warranted the family court's determination the child's best interest would be served by giving the father legal and physical custody. Accordingly, we affirm the family court's order.
FACTUAL AND PROCEDURAL BACKGROUND
On our own motion we have augmented the record to include the documents which have been filed or lodged in the family court file in this case. (Rule 8.155 (a) (1), Cal. Rules of Court.) Much of the information we set forth is taken from those documents.
John O. and Margaret E. had a relationship between 1989 and 2001 and together they are the parents of Jacob O., who was born in 2000. After the relationship between John and Margaret ended, Jacob lived with Margaret and Margaret's parents. Following a 2005 mediation between John and Margaret, John visited Jacob every weekend.
In 2006 Margaret developed a relationship with another man, Munir K., and together they had a child in 2007. Munir and Margaret engaged in domestic violence and Munir was subject to a restraining order preventing him from having contact with Margaret. John believed that Munir was violent and abusive.
In 2007 John became concerned about Jacob's welfare, and in September 2007 John filed a petition to establish his parental relationship with Jacob and to be awarded legal and physical custody of Jacob. In addition to his concern about the impact Munir had on Jacob, John was also concerned because Margaret had not taken Jacob for follow-up visits to the dentist and for medical examinations. John was also concerned because Jacob reported that he had to sleep on the floor in the one-bedroom apartment he shared with Margaret, Munir and his infant half-brother. According to Jacob, he did not like sleeping on the floor because cockroaches came out at night and crawled around on the floor. In contrast, John lived in a large four-bedroom home with his mother and brother and provided Jacob with a bed of his own.
In response to John's petition, Margaret stopped permitting John to visit Jacob. In turn, in December 2007 John obtained an order from the family court permitting him to visit Jacob. Margaret failed to comply with the court's visitation order, and in addition Margaret was involved with Munir in a domestic violence incident in which she appeared to be the aggressor. In light of Margaret's failure to comply with the family court's visitation orders and the domestic violence incident, in March 2008 the family court ordered that John have temporary legal and physical custody of Jacob. While John's motion to be awarded permanent custody was pending, the court ordered that both parents participate in counseling and that John participate in an alcohol recovery program. The family court also ordered that, because of conflicts between John and Margaret, Jacob's visitation would supervised by Margaret's sister who had a good relationship with both parents.
On June 22, 2009, a violent incident arose between John, his brothers, Margaret and Munir with respect to a scheduled visitation between Margaret and Jacob that weekend. Because Margaret's sister was no longer available to supervise visitation and contrary to the family court's order, the parties themselves had been transferring Jacob for visitation. Although there is a dispute between the parties as to how the incident arose and who were the aggressors, Margaret and Munir appeared at John's home on Sunday evening June 22 and demanded that John produce Jacob for a visitation that had been scheduled to begin either on Saturday or earlier on Sunday. Margaret had earlier attempted to enlist the aid of police in gaining visitation; the police refused to assist her and advised her to stay away from John's house. Margaret and Munir, along with their infant son, nonetheless went to John's house. A fist fight broke out between John, his brothers and Munir; in response, Margaret handed her infant son to a neighbor who was observing the situation and retrieved a tire iron from her car which she then used to hit John. Police were called and arrested Margaret. At about the time Margaret was being put in a police car, Jacob returned to John's home to see his mother being taken away and his father with an injury to his arm.
While John's custody motion was pending, John accused Margaret of habitually abusing drugs; and for her part, Margaret accused John of abusing alcohol. These substance abuse accusations were, in Margaret's case, supported by her unwillingness at one point to submit to drug testing and the conclusion of counselors who interviewed her and doubted her denials of drug use. In John's case, the accusation of alcohol abuse was supported by a lengthy history of convictions for driving under the influence. On the other hand, the record also reflects that both Margaret and John participated in programs designed to address these problems.
The family court conducted a hearing on John's request for custody of Jacob on September 25, 2008. The family court awarded legal and physical custody to John and provided for supervised visitation with Margaret. Margaret, acting in propria persona, filed a timely notice of appeal.
We note that no respondent's brief has been filed.
DISCUSSION
I
Where, as here, no permanent custody order has been entered, the trial court is required to determine what is in the best interest of the minor. (In re Marriage of Burgess (1996) 13 Cal.4th 25, 34-35 (Burgess).) Unlike cases where a party is attempting to alter a permanent custody order, here neither party had the burden of demonstrating either any detriment to the minor or any particular need for a change in custody. (Ibid.) Rather, in cases such as this one, both parties share the burden of showing what is in the best interests of the minor. (See In re Marriage of LaMusga (2004) 32 Cal.4th 1090, 1101 (La Musga).)
Family Code section 3011 provides that in making a custody decision, "the court shall, among any other factors its finds relevant, consider all of the following: [¶] (a) The health, safety, and welfare of the child. [¶] (b) Any history of abuse by one parent... against... [t]he other parent [or] [a] parent, current spouse, or cohabitant, of the parent or person seeking custody." In addition, Family Code section 3040, subdivision (a)(1), provides that while joint parental custody is the preferred custody arrangement, "[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, consistent with Section 3011 and 3020...."
"The standard of appellate review of custody and visitation orders is the deferential abuse of discretion test. [Citation.] The precise measure is whether the trial court could have reasonably concluded that the order in question advanced the 'best interest' of the child. We are required to uphold the ruling if it is correct on any basis, regardless of whether such basis was actually invoked." (Burgess, supra, 13 Cal.4th at p. 32.)
II
Although John's record of alcohol abuse is certainly troubling and no doubt was of concern to the family court, the record nonetheless fully supports the family court's decision to award physical and legal custody to John rather than to make an award of joint custody or provide sole custody to Margaret. The principal difficulty in providing custody to Margaret is her demonstrated failure to permit John frequent and continuing contact with Jacob in the period following John's petition. (Fam. Code, § 3040.) In addition, the record also demonstrates that her relationship with Munir was volatile and involved two documented incidents of domestic violence, one in which it appears Munir was the aggressor and one in which Margaret was apparently the aggressor. (Fam. Code, § 3011, subd. (b).) The record also shows Margaret did not take Jacob for regular medical and dental examinations, but left that responsibility to John, and that for a number of years she failed to provide Jacob with a bed. Finally, without determining who initiated the brawl which occurred on Sunday evening June 22, 2008, the family court could also take into consideration the very poor judgment Margaret exercised in going to John's house that evening when the period for any visitation had in fact passed and exposing herself and her infant son to the risks of the violent confrontation which ensued. Considered together, these circumstances fully warranted the family court's determination that Jacob's best interest would be served by giving John sole physical and legal custody.
Order affirmed.
WE CONCUR: McINTYRE, J., IRION, J.