Opinion
NOT TO BE PUBLISHED
Appeal from an order of the Superior Court of Orange County, No. 07P000341 Thomas H. Schulte, Temporary Judge.
Law Offices of Opri & Associates and Debra A. Opri for Plaintiff and Appellant Lauren W.
No appearance for Defendant and Respondent Brent A.
No appearance for Third Party Claimant and Respondent Kevin Q.
OPINION
IKOLA, J.
Lauren W. appeals from the court’s order granting Kevin Q.’s order to show cause requesting visitation with Lauren’s child. Lauren contends the court misapplied Family Code section 3100 in finding Kevin was entitled to visitation. We agree and reverse the court’s order.
The order is a postjudgment order appealable under Code of Civil Procedure section 904.1, subdivision (a)(2).
All statutory references are to the Family Code.
FACTS
Prior Proceedings
On April 13, 2007, Lauren petitioned under the Uniform Parentage Act (UPA) (§ 7600 et seq.) to establish Brent A. as the child’s father. Lauren requested sole legal and physical custody of the child and that Brent be awarded visitation as agreed by the parties. Lauren acknowledged that, at the time, Kevin claimed custody and visitation rights to the child. Indeed, Kevin had also filed a petition under section 7630 “to establish a parental relationship as the child’s presumed father, ” and Kevin’s petition was then pending. (Kevin Q. v. Lauren W. (2009) 175 Cal.App.4th 1119, 1125.)
On April 24, 2007, Lauren and Brent entered into a written “Stipulated Judgment on Paternity.” The parties stipulated, inter alia, that: they are the child’s legal and biological parents; the parties are awarded joint legal custody of the child; and Lauren is awarded sole physical custody of the child with reasonable visitation to Brent. Lauren, Brent, and Lauren’s counsel signed the agreement, and a signature line was included for the court to issue an order.
On June 5, 2007, Brent responded to Lauren’s UPA petition by acknowledging he is the child’s father and that his parentage was established by a voluntary declaration of paternity. Brent attached a copy of the voluntary declaration. Brent requested that he and Lauren be awarded joint legal custody of the child, and that Lauren be awarded sole physical custody of the child with reasonable visitation to Brent. This request was consistent with the “Stipulated Judgment on Paternity.”
On June 11, 2007, Judge Francisco Firmat entered a judgment finding Lauren and Brent to be the child’s parents and awarding child custody and visitation as specified in the parents’ stipulation. On June 14, 2007, Kevin moved to join Lauren’s paternity action against Brent, so that “paternity can be declared with finality.” On June 20, 2007, Judge Firmat set aside the June 11, 2007 judgment on the court’s own motion after finding the judgment was entered by mistake. At a June 29, 2007 hearing, Judge Firmat explained he had set aside the June 11, 2007 judgment because a mistake had been made, in that he had never signed it, but rather it was rubber stamped by someone “upstairs.” Judge Firmat stated: “If it had been any other case, I would not have been aware of it. This is a case that I ended [up] talking [about] with the lawyers. We ended up bouncing every judicial officer here because they all know [Kevin]....” On September 20, 2007, Judge Firmat granted Kevin’s joinder motion.
The two paternity actions were consolidated, at least for purposes of trial, and, after a bench trial, Judge Robert Monarch found Kevin was the child’s legal father under section 7611, subdivision (d). On June 19, 2009, we issued our opinion reversing the superior court’s judgment. We held that Brent is the child’s father because he had signed a voluntary declaration of paternity that functioned as a judgment under section 7573. Accordingly, on December 14, 2009, the superior court entered a judgment of paternity after remittitur in the consolidated paternity actions, finding Brent to be the child’s father.
Current Proceedings
On December 10, 2009, in Lauren’s UPA action, Kevin filed an order to show cause regarding child custody, in which he named Lauren as the petitioner/plaintiff, Brent as the respondent/defendant, and himself as “claimant.” Kevin sought custody of and visitation with the then 4-year-old child, pursuant to sections 3040 and 3041. Kevin later filed an amended application stating: “In the event that the court determines that awarding [Kevin] custody is not appropriate then he requests that the court order visitation of [the child] with [Kevin].”
Despite the filing of the judgment on remittitur in the consolidated actions, the parties and the court appear to have proceeded, with some confusion in labeling their pleadings, as though the judgment had rendered Kevin’s paternity petition “moot, ” but leaving Lauren’s petition as still pending. Eventually, the court and the parties proceeded with reference only to Lauren’s UPA petition, and the order from which the appeal was taken was filed under the case number assigned to Lauren’s paternity action. Although the record is muddled on this point, we conclude it most likely that the two actions were consolidated only for purposes of trial. Accordingly, we follow the lead of the parties and the court and adopt the caption of Lauren’s action as the appropriate caption for this opinion.
Kevin declared he had had continuous custodial contact with the child since birth; it would be detrimental to the child to lose contact with Kevin; and it was in the child’s best interests to have custodial contact with Kevin. Kevin further declared the child lived in Kevin’s home for the first 20 months of the child’s life until Lauren moved out with her two sons. Thereafter, Kevin continued to have contact with the child pursuant to court order. In their time together, Kevin and the child rode bikes, went to the park and the beach, had play dates with friends, neighbors and relatives, visited Kevin’s family and parents, attended sporting events, went trick or treating, celebrated birthdays and holidays, and went on trips (including to San Diego Sea World, San Diego Zoo, San Diego Wild Animal Park, and Legoland).
Kevin declared: “[The child] has led a very full and active life during the time periods he is with me and he needs to continue doing such. For about the last year, [the child], on almost every day that he has been with me, several times a day, would stop what he was doing to hug me, kiss me and say “I love you daddy” and then return to what he was doing. This was spontaneous on [the child’s] part and this affection towards me and mine towards him was reassuring and comforting to him. [¶] For a period in excess of a year, [the child] has told me that he wants to go to ‘my house’, referring to my Huntington Beach home.”
At a January 12, 2010 hearing, the court ruled Kevin had standing to be heard in family court and therefore scheduled a full hearing on custody.
On April 12 and 13, 2010, the court conducted a full hearing on visitation because Kevin no longer sought custody. On April 27, 2010, the court granted Kevin’s “motion for visitation rights, ” and awarded him visitation with the child for one weekend per month and one 10-day period during the summer.
The court found Kevin did not request custody of minor at the time of trial.
DISCUSSION
Lauren contends the court lacked jurisdiction to hear Kevin’s order to show cause. Relying principally on Scott v. Superior Court (2009) 171 Cal.App.4th 540, Lauren argues that Kevin was improperly joined in her UPA action. Scott held, inter alia, that “[i]n a UPA action, the only interested parties are the children and the natural or presumed mothers and fathers.” (Scott at p. 544; see also § 7635.) And Kevin no longer had standing as a presumed father. We need not decide whether Kevin was properly joined at the outset in Lauren’s UPA action as a person claiming presumed father status because once the final judgment was entered declaring Brent to be the father of the child, Kevin lost all standing to participate further in Lauren’s UPA action. Kevin’s order to show cause should have been dismissed. The only proper parties for any further proceedings in the UPA action would be Lauren, Brent, and the child. “There can be only two parents, not three.” (Scott at p. 544.)
Kevin nevertheless contended he was entitled to seek visitation rights under section 3100. Section 3100, subdivision (a) provides: “In making an order pursuant to Chapter 4 (commencing with Section 3080), the court shall grant reasonable visitation rights to a parent unless it is shown that the visitation would be detrimental to the best interest of the child. In the discretion of the court, reasonable visitation rights may be granted to any other person having an interest in the welfare of the child.” (Italics added.) Lauren contends the court erred by finding Kevin was entitled to visitation with minor under section 3100. She argues section 3100 applies only when the court issues joint custody orders pursuant to section 3080 et seq. She asserts the instant case does not involve a joint custody order, and therefore the court erred by granting Kevin visitation under the statute.
Section 3080 provides: “There is a presumption, affecting the burden of proof, that joint custody is in the best interest of a minor child, subject to Section 3011, where the parents have agreed to joint custody or so agree in open court at a hearing for the purpose of determining the custody of the minor child.” Under section 3081, “[o]n application of either parent, joint custody may be ordered in the discretion of the court....” The balance of chapter 4 concerns the court’s “reasons for granting or denying the request” (§ 3082), aspects of custody (legal and physical custody, as well as physical control, home, and caretaker), and modification or termination of joint custody orders. Of course, there was no pending issue of custody at the time of Kevin’s order to show cause. The court appears to have ignored the written stipulation in the court’s file entered into by the parents, Lauren and Brent, providing for joint legal custody with Lauren having sole physical custody with reasonable visitation to Brent. That agreement had been in effect for three years, and there was no evidence that either Lauren or Brent had sought modification.
“Courts do not have any inherent jurisdiction to entertain a nonparent’s visitation request.” (Hogoboom & King, Cal. Practice Guide: Family Law (The Rutter Group 2010) ¶ 7:511.10, p. 7-205.) Here, Kevin requested visitation under section 3100. But that statute, by its plain language, applies only when a court makes a joint custody order. Our Supreme Court has recognized this plain meaning of section 3100’s text: “[S]ection 3100 provides that in making an order for joint custody of a minor child, ‘[i]n the discretion of the court, reasonable visitation rights may be granted to any other person having an interest in the welfare of the child.’” (In re Marriage of Harris (2004) 34 Cal.4th 210, 220, fn. 5.) Indeed, section 3100 would not pass constitutional muster if its application were unrestricted. (Troxel v. Granville (2000) 530 U.S. 57, 66-67 [nonparental visitation statute unconstitutionally infringed on fundamental parental right to make decisions concerning care, custody, and control of children, because statute allowed any person to petition court for visitation rights at any time, and authorized court to grant such visitation rights in best interests of child].)
Here, the court made no joint custody order, and no participant even requested a custody order. In its statement of decision, the court found Kevin requested only visitation at the time of trial, not custody. And, as noted above, Kevin had no standing to request custody in Lauren’s UPA action. As to Lauren and Brent, at the time of the April 2010 hearing on Kevin’s visitation request, three years had passed since the parents stipulated and agreed in April 2007 to joint legal custody over the child. By then, neither Lauren nor Brent was requesting a joint custody order, as demonstrated by the fact the court did not issue (or consider issuing) one. This is the second occasion on which Kevin has argued that the plain meaning of a statute is not plain. Hopefully, it is the last.
At the April 13, 2010 hearing, Brent testified he agreed to give Lauren sole physical custody of the child and that he did not wish to have custody of the child. Brent acknowledged signing the “Stipulated Judgment on Paternity” and testified he had never formally signed a document withdrawing the agreement.
DISPOSITION
We reverse the visitation order. Lauren shall recover her costs on appeal.
WE CONCUR: O’LEARY, ACTING P. J., ARONSON, J.