Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County. Ct. No. BF024211 Michael P. Linfield, Judge.
Harrison & Rodriguez and Gary S. Harrison for Defendant and Appellant.
Hammond Law Center and Keith H. Bray for Plaintiff and Respondent.
ASHMANN-GERST J.
Appellant Jennifer Huynh (mother) appeals the judgment awarding sole legal custody of her daughter, Michelle Huynh (minor), to respondent Christopher W. Johnson (father). Father lives in Kansas. Mother contends that the family court failed to properly apply the factors established by In re Marriage of LaMusga (2004) 32 Cal.4th 1072 (LaMusga) for determining when a parent is permitted to move a child outside of California. In particular, mother contends that the family court failed to consider the detriment to the minor.
We find no error and affirm.
FACTS
Birth of the minor
In 2003, mother and father were on active duty in Virginia in the United States Navy (Navy). Minor was born in Virginia in May 2003. In late 2003, they moved to San Diego, California. They separated in February 2004. Mother stayed in San Diego because she was still on active duty until December 2004, and father moved to Kansas. While in California, the minor lived with her maternal grandmother (grandmother) in Los Angeles County.
By the time father got to San Diego, he was out of the service.
These facts come from mother’s opening brief and father’s respondent’s brief. For support, they both cite to pages 102 to 104 of the clerk’s transcript. None of this information is contained in those pages. However, mother and father agree on these basic facts, so we presume their veracity.
Petition to establish parental relationship; father’s order to show cause
In early 2004, Father requested a DNA paternity test to establish whether he was a biological parent of the minor. Subsequently, he filed an order to show cause which requested a DNA paternity test and, additionally, custody of the minor and permission to move out of state.
A hearing was held on March 10, 2004. The family court was informed that mother was in the Navy. Pending the next hearing, the family court ordered that father have alternate weekend visitation. Also, both parties were ordered to cooperate with genetic testing.
The April 13, 2004, hearing; results of the genetic test
At the continued hearing on April 13, 2004, the family court awarded mother and father joint legal and physical custody. Additionally, father was awarded visitation from May 15, 2004, through June 6, 2004, from June 26, 2004, through July 18, 2004, and from August 15, 2004, through August 23, 2004. Father’s parenthood was confirmed by genetic testing.
The August 23, 2004, hearing
Kevin Ford (Ford), a child custody evaluator, was called to testify at the next hearing on father’s order to show cause.
According to Ford, the parties had followed the family court orders. However, grandmother called the police each time father arrived to pick up the minor for his three-week visitations during the summer. Grandmother feared that father would abduct the minor, and she was concerned that father did not have medical insurance for the minor, as ordered by the family court. She did not allow the minor to go with father on a Sunday visit because, purportedly, the minor had been anxious upon her return from a prior visit.
After giving a background, Ford offered an evaluation of the family situation. In his view, both mother and father exhibited a positive relationship with the minor. But also, they both needed the support of their extended family members. “Today,” explained Ford, “father presents as being available. Mother presents as being largely unavailable due to current commitments with the military.” There was a history of care on the part of grandmother, which father said he did not support. “My concern today,” stated Ford, “is the degree of the involvement on the part of . . . grandmother, given mother’s unavailability. My sense today is that . . . grandmother seems to have negative feelings about father and his involvement in the minor[’s] . . . life which had led her to act in a controlling manner subsequent to the March hearing here . . . . Controlling by taking it a upon herself to withhold the minor . . . on [a Sunday]. . . . And, secondly, having the police come ostensibly because the minor . . . was anxious when, in fact, I believe the . . . grandmother was anxious about . . . separating from the [minor]. [¶] My sense today . . . is I don’t see mother as being capable of being fully assertive with . . . grandmother to have father’s time exercised on a regular basis—without incident I should state.”
Ford recommended that father be given primary physical custody, and that mother and father share legal custody. He further recommended that mother have the minor one-week each month in Los Angeles County.
The family court issued, among others, the following orders: (1) Mother and father were awarded joint legal custody. (2) Father was awarded primary physical custody. (3) Mother was awarded reasonable visitation. (4) Father was awarded $343 a month for child support.
Mother’s order to show cause
After she completed her military service, mother filed an order to show cause requesting physical custody of the minor and child support. The requested relief was denied.
The October 28, 2005 trial
The cause was called for trial on October 28, 2005.
Father testified that he had retained physical custody of the minor in Kansas since August 2004. He asked mother where she would be residing during the minor’s visit to California in February 2005. However, mother refused to divulge her address. She also refused to give father her home phone number. While the minor was visiting mother in October 2005, father called mother’s cell phone four days in a row and did not get an answer. And even though he left messages, he did not get a call back.
When asked why the minor should live with him in Kansas instead of with mother in California, father stated: “Well, because I already have a medical physician already set up on her. I have a WIC program set up on her. Daily daycare center already set up on her. And she’s already adapted to her lifestyle the way she’s been living for the past year and a half.”
According to father, the minor was scared at the beginning of her visit in October 2005 with mother. When asked to explain, he stated that the minor “was mostly scared because I was going to leave her.” Father testified that the minor acted the same way during her visit in February 2005. Further, he testified that he wants mother’s visitation to be more frequent so that the minor can get comfortable with both sides of her family.
Father testified that mother did not comply with the family court order to pay $343 each month. When he tried to talk to mother about it, she would change the subject and not engage the issue.
If mother was awarded physical custody, father feared that he would have trouble with visitation. One indication, to him, was that mother would not give him the address of where she was living.
At this point, mother’s counsel interjected, pointing out that when mother got out of the Navy and wanted to modify custody, the family court stated that it would be detrimental to uproot the minor after five months in father’s care. Mother’s counsel then stated: “So we get to this problem where every month that goes by, . . . it just gets exacerbated. [¶] The trial was set for July 22nd. . . . And they come in ex parte, and the trial gets continued to October 28th. [¶] So between that, that adds another four or five more months. So now the [family court] is going to say” that if uprooting the minor after five months with father was detrimental to the minor, “certainly a year and a few more months is really detrimental.”
The family court responded, stating: “What’s the best interest of [the minor] now?” Mother’s counsel listed all the changes mother made in her life. The family court then replied: “We have . . . a difficult case. You have two young parents. There isn’t a lot of money for flying back and forth and doing visitation. Neither parent makes a lot of money, to my understanding. . . . [¶] . . . [¶] [The minor] has to be with one of the two parents. . . . [W]hatever the [family court] decides, the other parent isn’t going to have any continuous contact. . . . There will be some probably sporadic contact every few months, is my guess. . . . [¶] . . . [S]o either [mother] is going to . . . have [the minor] and [father] won’t have a lot of contact with her or [father] will have [the minor] and [mother] won’t have a lot of contact with her. And I don’t see any particular alternative there at this point.”
Mother’s counsel complained that father was “the voluntary departee from the State of California.”
The family court stated that there were two issues: “Where would [the minor] get a . . . more responsive, caring, loving, supportive family. . . . And two, which family would encourage visitation [with] the other parent.”
Mother was called to the witness stand. She testified that she has always encouraged father to visit the minor. When asked where she lives, she stated that she was renting a room in San Gabriel. She explained that she works part time as a clerk typist, and that she is going to school and studying criminal justice. According to mother, father never asked for her address, he only asked about her living conditions. She did not have visitation with the minor between February and October 2005 because she was working as a security guard from 6:00 p.m. to 6:00 a.m. and visitation was not convenient. Though she asked for visitation, father said she needed “paperwork.” Because she was working at night and sleeping during the day, she could not contact her attorney.
Mother’s counsel explained that when he tried to arrange visitation, father’s counsel always had an excuse for why visitation would not be allowed. The family court queried why mother had not “put [her] foot down” and requested some sort of ex parte relief since January 2005. When asked why, mother pleaded ignorance of the law and her rights.
Grandmother and father’s mother also testified.
In the end, the family court opined that this was a difficult case because mother and father were caring parents. According to the family court, “[b]oth parents should have extended contact with [the minor]. [The minor] needs her mom, but she also needs her dad.” Though the family court originally considered giving mother and father alternate three-month periods of custody, it rejected that idea because it was “not a feasible situation in terms of the [minor’s] development. It also doesn’t seem practical given daycare constraints.”
The family court recognized mother’s love for the minor, and her depression when she was separated from the minor. But the family court stated that it was required to “look at what’s best for [the minor.]” It went on to state: “Weighing all of the factors and all the evidence that I’ve heard today and considering also the extended family that [father] has in Kansas, [the family court is] going to give primary custody of [the minor to father].”
In its order, the family court awarded sole legal custody to father. Mother was awarded visitation. The parties were instructed to arrange internet video conferences so that mother could interact with the minor on a daily basis. Mother was ordered to pay $275 a month in child support, plus arrearages. Judgment was entered on April 20, 2006.
This appeal followed.
STANDARD OF REVIEW
Custody and visitation orders like those at issue here are subject to review for an abuse of discretion. (Montenegro v. Diaz (2001) 26 Cal.4th 249, 255 (Montenegro); LaMusga, supra, 32 Cal.4th at pp. 1088–1090.) Factual findings will be upheld if they are supported by substantial evidence. (In re Marriage of Burgess (1996) 13 Cal.4th 25, 32 (Burgess).)
Substantial evidence consists of evidence that is “‘reasonable, credible, and of solid value’” which would allow a reasonable trier of fact to reach the conclusion that the trial court reached. (In re Christina A. (1989) 213 Cal.App.3d 1073, 1080.) Where there is any substantial evidence to support a ruling, we must affirm the decision. (In re Tracy Z. (1987) 195 Cal.App.3d 107, 113.)
DISCUSSION
Mother contends: (1) She and grandmother were the minor’s primary caretakers; (2) the family court failed to apply the presumption in favor of maintaining the status quo; (3) the family court failed to require father to make a substantial showing that a significant change of circumstances made a change in custody essential; and (4) when the family court changed custody, it ignored the detriment to the minor that would result if there was a relocation.
We turn to these issues.
1. The August 23, 2004 temporary custody order.
Mother appealed from the family court’s April 20, 2006 judgment. Though she does not say so expressly, we infer that she asks us to review the family court’s August 23, 2004 temporary custody order.
a. The law regarding the custody of children.
A mother and father are equally entitled to custody of a child. (Fam. Code, § 3010, subd. (a).) “If one parent . . . is unable . . . to take custody . . ., the other parent is entitled to custody of the child.” (§ 3010, subd. (b).)
All further statutory references are to the Family Code unless otherwise indicated.
When making an order for physical or legal custody, or for visitation, a family court’s primary concern in determining a child’s best interests must necessarily be the child’s health, safety and welfare. (§ 3020, subd. (a).) Also, a family court must consider the “[n]ature and amount of contact with both parents.” (§ 3011, subd. (c).) It is the policy of this state to assure that a child has frequent and continuing contact with both parents after the parents have ended their relationship. (§ 3020, subd. (b).) Custody should be granted in the following order of preference: (1) to both parents jointly, or to either parent; (2) if to neither parent, to the person in whose home the child has been living in a wholesome and stable environment; and (3) to any other person deemed by the family court to be suitable and able to provide adequate and proper care and guidance for the child. (§ 3040, subd. (a).) There is neither a preference nor a presumption for or against joint legal custody, joint physical custody, or sole custody. In this regard, section 3040 “allows the court and the family the widest discretion to choose a parenting plan that is in the best interest of the child.” (§ 3040, subd. (b).)
Due to the parental preference rule established by statute, “[c]ustody may not be given to grandparents over the resistance of a fit parent; an award of nominal custody to a fit parent violates the rule if it has the practical effect of placing care and control in the grandparents, denying it to the other fit parent. [Citations.]” (Moffitt v. Moffitt (1966) 242 Cal.App.2d 580, 583 (Moffitt).)
b. The law pertaining to temporary custody orders.
A petition for a temporary custody order may be made with the initial filing of a proceeding, or at any other time. (§ 3060.) Any time during the pendency of a custody proceeding a family court may “make an order for the custody of a child during minority that seems necessary and proper.” (§ 3022.)
“A noncustodial parent who seeks to obtain custody will often be at a disadvantage by the time of trial if the child has bonded with the custodial parent. The noncustodial parent’s only effective recourse is to obtain immediate review of any objectionable temporary custody order. This can be done by filing a petition for writ.” (Lester v. Lennane (2000) 84 Cal.App.4th 536, 565.) Theoretically, an appellate court can review a temporary custody order as part of its review of a final judgment. (Id. at p. 566.) But, ordinarily, an appellate court cannot grant effectual relief, and review is rendered moot. This is because a challenge to a temporary custody order “attempt[s] to dispute conditions of parenting time and visitation which are no longer in effect.” (Ibid.) We have no power to “turn back the clock and restore the custody situation that existed before the orders were made. With the best interests of the child in mind . . ., we cannot undo bonds that were formed or stability that was created by the temporary orders.” (Ibid.)
c. The law pertaining to relocations.
Section 7501 provides: “(a) A parent entitled to the custody of a child has a right to change the residence of the child, subject to the power of the court to restrain a removal that would prejudice the rights or welfare of the child. [¶] (b) It is the intent of the Legislature to affirm the decision in [Burgess], and to declare that ruling to be the public policy and law of this state.”
The holding in Burgess was succinctly summarized by the court in Ragghanti v. Reyes (2004) 123 Cal.App.4th 989 (Ragghanti). According to Ragghanti: “‘Burgess held that in making an initial custody decision, if one or both of the parents was planning to move away, ‘the trial court must take into account the presumptive right of a custodial parent to change the residence of the minor children, so long as the removal would not be prejudicial to their rights or welfare. [Citation.] Accordingly, in considering all the circumstances affecting the “best interest” of minor children, it may consider any effects of such relocation on their rights or welfare.’ [Citation.] In contrast, once a final custody order is in place, ‘a change of custody is not justified simply because the custodial parent has chosen, for any sound good faith reason, to reside in a different location, but only if, as a result of relocation with that parent, the child will suffer detriment rendering it “‘essential or expedient for the welfare of the child that there be a change.’” [Citation.]’ [Citation.] [¶] In other words, when there is an existing final custody order in a move-away case, the changed circumstances test applies just as it would in any other case. Unless the move will result in detriment that makes a change in custody ‘essential or expedient’ for the child’s welfare, the existing order must stand. But in an initial custody decision, although the trial court must ‘take into account’ a planned move and any resulting prejudice to the child, those considerations do not preclude the court from also considering all the other circumstances bearing upon the child’s best interest. The noncustodial parent does not have a burden to show that the move will be detrimental. To be sure, under the best interests analysis, even if the detriment resulting from a planned move is insufficient by itself to warrant changing a temporary custody order, other circumstances can support the finding that a change in custody is in the child’s best interest.” (Id. at pp. 997–998.)
d. Mother’s argument.
When the proceeding was initiated, according to mother, she had primary physical custody of the minor, and father was only given visitation. The parties agreed that grandmother would be the minor’s primary caretaker. Then the family court changed the custody arrangement and awarded custody to father. Mother contends that the family court ignored the following presumption: “[T]he paramount need for continuity and stability in custody arrangements—and 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. [Citations.]” (Burgess, supra, 13 Cal.4th at pp. 32–33.) Mother argues that minor should not have been removed from her custody unless changed circumstances rendered a change in custody essential. Moreover, in her view, the status quo was in the minor’s best interests. As well, mother contends that the trial court failed to consider the detriment the minor would suffer if she was relocated.
e. Application of the law.
This portion of mother’s appeal is moot because we cannot grant effectual relief. Our evaluation of the judgment depends upon the evidence presented at the October 28, 2005 trial, and the best interests of the minor as determined at that time. We cannot undo her time spent with father, and we cannot change the fact that he was her primary caretaker for more than a year prior to trial. In other words, reversing the August 23, 2004 temporary custody order, would not help mother. Nonetheless, to be thorough, we examine the merits.
The analysis in Burgess and Ragghanti applies to an initial custody decision, i.e., a custody decision following trial. Also, it applies when, after trial, the noncustodial parent seeks a change in custody because the custodial parent plans to move away. It does not, on its face, apply to a temporary custody order.
As explained by Montenegro, when a family court makes a temporary custody order, it is simply required to determine the best interests of the child. (Montenegro, supra, 26 Cal.4th at p. 256.)
Because the August 23, 2004 temporary custody order is at issue, we look to see whether the family court acted within its discretion in determining the minor’s best interests. Though mother contends that the family court was required to apply the changed circumstances rule, that contention is not supported by our Supreme Court’s dictate in Montenegro. Contrary to mother’s assertion, there is no order in the record establishing that she was ever awarded primary physical custody. As it was, grandmother had de facto custody of the minor, never mother. On April 13, 2004, mother and father were awarded temporary joint physical and legal custody. Temporary primary physical custody was given to father on August 23, 2004. At the time, mother was unable to take temporary physical custody of the minor because she had not completed her active duty with the Navy. As a default, this entitled father to custody pursuant to statute. (§ 3010, subd. (b).) Moreover, once the proceeding was initiated below, the family court had the power to enter any temporary custody order that was necessary and proper. (§ 3022.) It was necessary and proper for the family court to award temporary physical custody to father based on the preference set forth in section 3040, subdivision (a) because father was available and fit. It would have violated Moffitt, and section 3040, subdivision (a), for the family court to award nominal temporary physical custody to mother because the practical effect would have been to place the minor’s care and control with grandmother. Additionally, the family court heard testimony from Ford and determined that it would be in the minor’s best interests to temporarily reside with father in Kansas due to mother’s unavailability and grandmother’s negative attitude toward father and interference with visitation. Also, father was living with extended family in Kansas, and they were available to help. Implicitly, the family court found that the temporary relocation would not cause the minor detriment.
The family court’s August 23, 2004 temporary custody order fell well within the bounds of reason.
2. The judgment.
In mother’s view, the judgment must be reversed because the family court did not properly apply LaMusga when it awarded father physical custody even though he was living in Kansas. We turn to this issue.
a. LaMusga.
LaMusga echoed Burgess, holding that “the noncustodial parent bears the initial burden of showing that the proposed relocation of the children’s residence would cause detriment to the children, requiring a reevaluation of the children’s custody. The likely impact of the proposed move on the noncustodial parent’s relationship with the children is a relevant factor in determining whether the move would cause detriment to the children and, when considered in light of all of the relevant factors, may be sufficient to justify a change in custody. If the noncustodial parent makes such an initial showing of detriment, the court must perform the delicate and difficult task of determining whether a change in custody is in the best interests of the children.” (LaMusga, supra, 32 Cal.4th at p. 1078.)
This holding applies to a noncustodial parent’s request to change a preexisting custody decision.
b. Mother’s argument.
Mother contends that she “demonstrated an obvious detriment to [the minor] [by] removing custody from the mother to the father and allowing [the minor] to be relocated from California to Kansas. Almost from birth and up to nearly a year afterward, [the minor] was cared for and nurtured by mother and [grandmother] in California. . . . [Ford] found no reason to believe [that] either the mother or [the grandmother] were bad care givers. . . . [¶] The [family court] instead decided to focus on the best interests of [the minor], but failed to mention what the best interests were. From the judgment handed down [by] the [family court] we can deduce that it was more interested in the benefit to the minor . . . if custody was . . . given to father. The [family court] ignored the qualitative nature of the time shared between the mother and [the minor] and favored the quantitative time given to the father. The shared [time] with [the minor] and [grandmother] was unarguably more substantial than the amount of time [the minor] spent with the father in [the minor’s] first year of life. The [family court’s] decision to negate the time [the minor] spent in California with the mother and [grandmother] in favor of the interests of father’s extended family runs afoul of judicial precedent. Burgess requires that the [family court] look at the detriment to [the minor] should a move away take place. The foregoing did not occur and requires that the [family court’s] judgment be set aside, and this case be remanded to the [family court] to properly evaluate [the minor’s] best interests according to recent law.”
c. Application of Burgess and LaMusga.
LaMusga did not overrule Burgess. Therefore, we look to Burgess in deciding whether the family court considered the appropriate factors when it made the initial custody decision after the October 28, 2005 trial. Under Burgess, the family court was required to consider the minor’s best interests, including whether relocation would affect her rights or welfare.
The record indicates that the family court ruled only after considering what would be in the minor’s best interests. Even though it did not expressly consider whether the minor would suffer detriment if father was given custody, we nevertheless follow the “familiar rule that permits us to imply any findings which are necessary to support the trial court’s judgment], so long as any such implied findings are . . . supported by substantial evidence. [Citation.]” (Massachusetts Mutual Life Ins. Co. v. Superior Court (2002) 97 Cal.App.4th 1282, 1287–1288; In re Andrea G. (1990) 221 Cal.App.3d 547, 554–555 [in general, orders will be upheld if the evidence supports implied findings; DeBoynton v. DeBoynton (1955) 137 Cal.App.2d 106, 111 [“The evidence already reviewed is sufficient to warrant the implied finding of the father’s fitness to have his daughter’s physical custody and to justify the order defining with exactness the extent of his visitation rights”].)
The judgment was supported by substantial evidence that it was in the minor’s best interest to reside with father in Kansas, and it would not cause her detriment. The evidence showed that father had custody of the minor since August 2004, and that he was nurturing and caring. He had help from his mother. She picked the minor up every day from daycare while father was at work and watched her until he got home. At night, he fed the minor, bathed her, and put her to bed. Father’s mother testified that father “has a very good relationship” with the minor, and that she looks to father for comfort when she is feeling ill, or if she falls down. According to father, the minor had adapted to life in Kansas. This evidence showed that the minor was strongly bonded to father, and supports the inference that she would be safe and happy if she stayed in her current custody arrangement.
Based on the statutory preference for custody, the family court had to award custody to either mother or father. As a result, the detriment caused by the minor’s separation from one of her parents could not be avoided. Thus, that detriment did not weigh in mother’s or father’s favor. In any event, neither party presented evidence that the minor was suffering particular detriment due to geography, except that it took her a while to adjust to visits with mother.
But there was cause for concern if mother was granted custody. Father testified that when the minor was visiting mother, mother would not divulge her home address or home phone number, and she did not return calls to her cell phone, suggesting that she was a less cooperative parent. Additionally, mother’s child support payments were sporadic, further indicating that she was not fully supportive of father acting as the minor’s primary parent. The fact that mother only lived in a rented room, and that she was working part time and going to school, suggested that if she was granted custody, grandmother would be a big presence in the minor’s life even though there was a history of grandmother interfering with visitation. In contrast, father testified that he wants the minor and mother to have more frequent visits, which demonstrates his commitment to fostering their relationship. From this evidence it can be gleaned that while father was cooperative and supportive of all the minor’s relationships, mother and grandmother were either less cooperative or less supportive, or both. Consequently, the family court could have found that granting custody to father was more likely to provide the minor with healthy access to both parents.
Based on the foregoing evidence, the family court’s final custody decision was not an abuse of discretion.
DISPOSITION
The judgment is affirmed.
Father shall recover his costs on appeal.
We concur: BOREN P.J., DOI TODD J.