Opinion
NOT TO BE PUBLISHED
San Mateo County Super. Ct. No. F077243
Lambden, J.
Lisa M. Pereira, the mother of N.S., appeals that part of a custody order of November 9, 2006, authorizing monthly visits for N.S. with stepmother Shaun S. during such time as the father, Steven S., serves time in prison. We affirm the order, rejecting claims of infringement of parental authority, inadequate notice, and lack of jurisdiction or evidence.
Background
Our record begins in midstream, with an order to show cause (OSC) filed by Lisa after over a year of custody history, and the background is not fully revealed. N.S. was born in January 1999, and the parents evidently lived together with him for several years, unmarried, before separating. A custody order issued in September 2004, after months of mediation with family court services (FCS) and transitional therapy for N.S., was for joint legal and evenly-shared physical custody. Custody alternated each week, the parents exchanging N.S. on Friday nights. N.S. attended elementary school and day care in Redwood Shores, and the parents initially both resided in San Mateo County, the mother in Redwood City.
Steven married Shaun in February 2005, and they had a baby girl. Shaun also had custody of a nine-year-old son. Sometime later in that year, apparently, Steven and family moved to Morgan Hill, in Santa Clara County, creating a distance of about 50 miles to N.S.’s school. During Steven’s weeks of custody, he or Shaun drove N.S. the hour-long commute to school and back again. N.S. attended day care at or near the school.
Meanwhile, in May 2005, Steven was convicted in federal court on two counts, for a 2003 possession of an unregistered machine gun and silencer (26 U.S.C. § 586(d)). The offense circumstances are not detailed in the record, but Steven represented without dispute below that he was a gun collector and that his offenses did not involve harm to anyone or risk to N.S. In November of 2005, the federal court granted his motion for a sentence “outside of the guideline range,” imposing concurrent 12-month prison terms, to be followed by three years of supervised release. Steven’s surrender date was initially set for January 3, 2006.
Lisa filed her OSC in September 2005, before the sentencing. She sought, in part, to limit Steven’s custody to alternating weekends. Citing the move to Morgan Hill and the commute as harmful to N.S., she asked that he spend all school days in her custody. She also cited Steven’s impending incarceration as further reason for “adjusting the current custody arrangement.”
In response, Steven opposed the proposed custody and visitation changes, denied any harm to N.S. from the current schedule and affirmatively sought that, in the event of his incarceration, the present schedule “be maintained so that [N.S.] may continue to retain the stability of the solid relationships with his stepmother, his sister and his stepbrother.” Steven also said he anticipated remaining free pending appeal but that any incarceration would be “in Lompoc” and that “frequent visitation [would] be facilitated by [N.S.’s] stepmother” if the current schedule were maintained.
In reply papers, Lisa objected that the court lacked “jurisdiction” to award any visitation to the stepmother absent a “substantial problem with the natural parent’s parenting” being shown.
The parents were referred to family court services (FCS), and the court issued interim orders in March and August of 2006 maintaining the custody and visitation status quo pending FCS investigation and mediation. Three FCS reports are in our record, under seal, and the issues presented on appeal require no disclosure of confidential details. We note only that the authoring counselor, after considering the parents’ positions, plus input from N.S., his former therapist and custody evaluator, his teacher, and people from his day care, saw no need to change the custody and visitation plan until such time as Steven entered prison custody.
The author wrote in a final summary of August 2006: “Insufficient information was received to warrant a change in the child’s parenting plan or that the current schedule is detrimentally affecting the child at this time. . . . [T]he child is attached to each parent and he enjoys spending time in each parent’s care. Unfortunately, it seems that the parents’ relationship has not improved and the child senses this. . . . [¶] The child appears stabilized and happy and . . . has made some improvement academically. . . . [¶] This counselor will recommend that the parents share joint legal and joint physical custody of the child with the child to continue to alternate weeks between each parent’s home. However, if the father should go into custody, this counselor would recommend that the mother have temporary legal and physical custody of the child, with the child to spend one extended weekend each month in the stepmother’s care in order to maintain the child’s relationship with the stepmother and other family members. . . .”
Reports of December 2005 and August 2006 recommended that, in the event of Steven’s incarceration: (1) Lisa would have “temporary legal and temporary physical custody” during that time; (2) unless agreed otherwise, N.S. would be in his stepmother’s care the second weekend of each month, with Steven to “ensure” that the stepmother or another relative “picks up the child directly from his school or day care [on Friday] and returns him directly to his school or day care [Monday morning]”; (3) Steven could have daily phone contact with N.S. and send cards and letters; (4) Lisa and Shaun could “arrange” for N.S. to spend time with Shaun during holidays and the summer; and (5) the parents would complete an FCS orientation program.
That report recommendation, ultimately attached to the court order challenged here, more completely reads: “1. While the father is in custody, the mother shall have temporary legal and temporary physical custody.
Lisa disputed portions of the recommendation allowing Shaun monthly visits, and these were briefed and then ultimately argued at a hearing of September 14, 2006. Lisa’s position, as elaborated at the hearing, was that, while she had no “specific disagreement with visitation” between Shaun and N.S., the court could not order visits because: (1) Shaun was not a party to the OSC proceedings and thus offered no evidence supporting visitation; (2) federal due process, after Troxel v. Granville (2000) 530 U.S. 57 (Troxel), prevented any such order over the objection of a biological parent; and (3) whether Shaun should have visits was not “ripe” given that Steven had not yet begun serving prison time. The parents also debated whether it was premature for the court to make specific orders regarding N.S. visiting his father in custody, which father expected would be at Lompoc.
The court reasoned, on the record, that the issue of visits was ripe given Steven’s conviction and the likelihood that he would eventually serve prison time. As for the Troxel precedent and Shaun herself not having petitioned for visits, the court said: “I think that . . . this is a situation where, you know, both parents are alive and well. And I viewed this [as being] essentially dad’s request for custody.” The court found jurisdiction under Family Code section 3100 et seq., The court adopted the report recommendation for monthly visits with the stepmother, Shaun, noting: “I have considered what is in the best interest of the child. I’ve also given special weight to, you know, mom’s determination, and what [her counsel] essentially said was that mom has no disagreement with such visitation, but she just doesn’t want a specific schedule. . . . [¶] I’ve also given weight to dad’s . . . particular determination . . . that visitation with Shaun would be in the child’s best interest. And I think [his counsel] set that out as well. And that there are siblings in the household.
All unspecified further section references are to the Family Code.
On the issue of ordering Shaun to take N.S. to visit Steven in prison, the court felt it needed more information. “I don’t know at this point where—where dad is going to be housed. I don’t know how the visitations work. . . . I would reserve on that issue until I have some additional information in order to make an informed decision as to what’s in [N.S.’s] best interest.” It ordered the parties to meet with FCS and get a hearing once they learned where Steven was to be incarcerated.
A written order of November 9, 2006, finds the issues ripe and jurisdiction under section 3100 et seq. to order stepparent visitation and recites that the court has considered applicable case law, including the Troxel case. It adopts the attached report recommendations 1 through 5 and adds that, once Steven’s incarceration location is determined, “the parties shall meet with a Family Court Services mediator and a date shall be set for a review hearing in this Court regarding whether or not the child shall be allowed to visit father at the incarceration facility.”
Lisa filed a notice of appeal on January 4, 2007. Her opening brief appears to assume that Steven has not yet begun serving his sentence, but Steven’s response brief, filed in September, represents that he began serving that sentence in May 2007. It also represents that “[n]o review hearing has yet been set” as envisioned in the appealed order, and Lisa has not filed a reply brief or any other paper disputing the incarceration or the lack of a review hearing. Apparently, Steven will have completed his incarceration, at the latest, by May 2008.
Discussion
Lisa repeats her Troxel and statutory invalidity claims about visitation for Shaun, adding for the first time here that she was deprived of due process notice by the absence of any pleading from the stepmother. Like Steven, we construe this as an attack limited to paragraph No. 2 of the recommendation, for monthly weekend visits, since paragraph No. 5, ordering that Lisa and Steven “may arrange” for holiday and summer visits (fen. 2, ante), appears to be permissive. Lisa raises no challenge to the court’s rejection of her ripeness claim, which has certainly lost force now that Steven is serving his sentence. Given that his term will be fully served by May 2008, it may be that this opinion will be moot soon after it becomes final. We nevertheless consider and reject Lisa’s challenges.
The substantive due process claim fails. Troxel found a Washington statute unconstitutional as applied to compel grandparent visitation over the objection of a sole surviving parent, the mother, where a trial court used a child’s-best-interests test without giving special weight to the substantive due process presumption that a fit parent acts in his or her child’s best interests. (Troxel, supra, 530 U.S. at pp. 65-73.) The court here honored precedent extending that rationale to stepparent visitation jointly opposed by two parents (In re Marriage of W. (2003) 114 Cal.App.4th 68, 74-75), but reasoned that, here, it had to consider the will of parents divided on stepmother visitation. Lisa views this rationale as an unprecedented extension of case law, but she and Steven each overlook California high court precedent that drew that very distinction in a grandparent visitation case where Troxel error had been claimed: “Court-ordered grandparent visitation over the objection of a sole surviving parent implicates that parent’s right to the custody and control of his or her child. [Citations.] But the mother in the present case has cited no authority that holds that an order for grandparent visitation that is supported by one of the parents infringes upon the parental rights of the other parent.” (In re Marriage of Harris (2004) 34 Cal.4th 210, 227.)
Lisa does not acknowledge that case but reasons that Steven’s wishes counted less than hers because she has what she claims is “sole legal and physical custody” pending Steven’s incarceration. It is not clear to us from the order of “temporary legal and temporary physical custody,” however, that the court meant to strip Steven of all legal custody—i.e., his “share[d] right and . . . responsibility to make the decisions relating to the health, education, and welfare of [the] child” (§ 3003). After all, the court did not use the adjectives “sole” or “exclusive,” did grant Steven the responsibility to ensure that N.S. was transported to and from day care or school by Shaun or a suitable relative, and clearly intended for this to be a “temporary” modification. (Fn. 2, ante.) But even if Lisa were correct in her characterization, we cannot equate a “sole custodian” parent with a “sole surviving” parent for purposes of Troxel. No substantive due process error appears.
On the lack of any filing or appearance by Shaun, we reject Lisa’s notion that this deprived her of procedural due process notice. The issue was never raised below and so is forfeited (see generally In re Christopher B. (1996) 43 Cal.App.4th 551, 558), but even if not forfeited, it would lack merit. Lisa’s own OSC raised the impending incarceration as one need for modifying custody and visitation and sought unspecified “further orders” of the court. Steven’s response papers urged that, should he be incarcerated, the court maintain visitation “to retain the stability of the solid relationships with his stepmother, his sister and his stepbrother.” The mediator recommended, in reports from December 2005 through August 2006, that the court adopt precisely the stepmother visitation of which Lisa now complains she lacked notice. Lisa and Steven then fully briefed the issue before a hearing where they argued it before the court adopted the recommendation. Lisa cites no authority suggesting that such facts fall short of the flexible due process requirements of notice and an opportunity to be heard (see generally In re Earl L. (2004) 121 Cal.App.4th 1050, 1053; In re Tamika T. (2002) 97 Cal.App.4th 1114, 1122).
Next, Lisa’s assertion that the court had “no inherent jurisdiction to entertain a non-parent’s request for visitation” rests on secondary authority, a practice guide that actually states, more fully, that section 3100, subdivision (a), “giving family courts discretion to grant nonparent visitation, does not itself provide a jurisdictional foundation for a third person’s visitation claim; rather, the statute applies only in family law proceedings between the parents. [Cf. White v. Jacobs (1988) 198 C[al.App.]3d 122, 124-125 . . . (predating . . . § 3104, which now authorizes independent grandparent petition for visitation]” (Hogoboom & King, Cal. Practice Guide: Family Law (The Rutter Group 2007) ¶ 7:511.10, p. 7-205). In this case, however, the court was not acting on inherent authority; Lisa had initiated family law proceedings between the parents through her OSC for modification of custody and visitation. The visitation request here also came not from a third party, but from one of the parents, and as to a stepmother, not a grandparent.
Lisa exclusively cites grandparent-visitation cases, where one statute mentioned in the practice guide does speak of the court’s authority to grant reasonable visitation “[o]n a petition to the court by a grandparent” (§ 3104, subd. (a)), but the stepparent provision expressly cited by the court below does not. Subdivision (a) of section 3101 provides: “Notwithstanding any other provision of law, the court may grant reasonable visitation to a stepparent, if visitation by the stepparent is determined to be in the best interest of the minor child.” (Italics added.) Lisa states in her brief, without citing any subdivision, that section 3101 requires that a third party “bring an action for custody” and that this “must be done upon noticed motion.” The section, however, does not state this, and in any event, we reiterate that the visitation here was sought by a parent, not the stepparent, as Steven’s papers and arguments made clear. This is not a case where a stepmother sought visitation in her own right; rather, Shaun, by her marriage to Steven, had effectively been a 50 percent custodian of N.S. and still remained Steven’s wife. None of the statutes or cases cited to us by Lisa suggests that a stepmother in this position must bring an “action” or intervene in her own right in order to vest the court with jurisdiction to award her visits that the father has requested.
Lisa argues that the visits awarded to Shaun cannot be construed as “an extension of” Steven’s visitation because Steven’s custody and contact were separately spelled out in paragraph Nos. 1 and 3 of the order (fn. 2, ante), and she sees “problems” should a stepparent be allowed visitation while the parent loses custody and is disallowed any “face to face” contact. We do not discern such “problems” in this case. As already noted, the order is far from clear about whether Steven was to be deprived of all legal custody while incarcerated. Plus, it is even less clear that the court meant to deprive Steven of all face-to-face contact. This was simply left open, with the parties to return to court for mediation and a review hearing on the feasibility of face-to-face visits once Steven’s prison facility was known. Nothing in the order forbade face-to-face visits, and lack of action in securing a review hearing leaves the court’s intent undetermined and the order incomplete in that respect. Lack of a review hearing also means that we cannot determine whether the stepmother’s monthly visits were linked with—or “an extension of”—Steven’s own visitation. We strongly infer, from the lack of any offer on Lisa’s part below to arrange or participate in visits at the prison, that the court was inclined to use the stepmother to accomplish them. Steven’s counsel had urged this in written and oral arguments.
Lisa’s final argument is that, since Shaun never appeared or submitted any declaration in the action, the court had no evidence on which to conclude that visits with Shaun were in N.S.’s best interests. This argument fails because it ignores evidence from the FCS reports that N.S. had lived with Shaun, the father’s spouse, since the marriage in February 2005 (more than 18 months by the time of the order) and that N.S. was very attached to, well cared for, and doing well with his new family, now comprised of Steven, Shaun, a stepbrother and a half sister. Lisa also ignores her counsel’s concession at the hearing, a concession expressly relied on by the court, that Lisa had “no specific disagreement with visitation [for Shaun], just not a structured visitation.” Substantial evidence supports the best-interests finding.
Lisa fails to affirmatively demonstrate error.
Disposition
The order is affirmed.
We concur: Kline, P.J., Richman, J.
“2. UNLESS THE PARTIES MUTUALLY AGREE OTHERWISE, the child shall be in the stepmother’s care one weekend per month from Friday after school until Monday morning returned to school. If the parties cannot mutually agree to the weekend, it shall be the second weekend of every month. The father shall ensure that the stepmother (or another relative that the child feels comfortable with) picks up the child directly from his school or day care and returns him directly to his school or day care.
“3. The father may have contact with the child the following ways:
“A. Phone contact: One phone call per day with the child between the hours of 7:00 P.M. and 7:30 P.M. for up to ten minutes . . . .
“B. Cards and letters.
“4. The mother and the stepmother may arrange for the child to spend time with the stepmother during holidays that shall include parts of the child’s Christmas vacation; Presidents’ week in February; Easter vacation, and some time during the summer.
“5. The parents shall complete the San Mateo County Family Court Services Orientation program either in person by calling (650) 363-4561 or completing the course online at www.sanmateocourt.org/fcs. . . .”