Marriage of Whooley CA2/3 ( 2023 )

Filed 4/25/23 Marriage of Whooley CA2/3
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION THREE
In re the Marriage of JAMES B313832
and ZANA WHOOLEY.
Los Angeles County
JAMES WHOOLEY, Super. Ct. No. BD602832
Respondent,
v.
ZANA WHOOLEY,
Appellant.
APPEAL from an order of the Superior Court of
Los Angeles County, Bruce G. Iwasaki, Judge. Affirmed.
CunninghamLegal and Daniel G. Van Slyke for Appellant.
James Whooley, in pro. per., for Respondent.
_________________________
Zana Whooley (mother) challenges an order modifying
the custody and visitation provisions of a 2016 judgment of
dissolution to award her former husband James Whooley (father)
sole legal custody and de facto sole physical custody of their
two sons.1 Mother contends the family court erred by (1)
declining to permit the older son to address the court regarding
his preference for custody; (2) admitting into evidence a child
custody evaluator’s testimony and report; and (3) failing to
apply the changed circumstances rule in determining a custody
1 The order purported to preserve what the judgment
referred to as “joint physical custody,” while reversing the
arrangement so that father would have primary custody and
mother would have parenting time with the boys each Tuesday
and Thursday evening and on the second and fourth weekends of
each month. In determining whether the changed circumstance
rule applies, we must look “at the existing de facto arrangement
between the parties to decide whether physical custody is truly
joint or whether one parent has sole physical custody with
visitation rights accorded the other parent.” (In re Marriage of
Biallas (1998) 65 Cal.App.4th 755, 759–760.) Here, the physical
custody arrangement under the judgment, and the modified
arrangement under the order, both reflect what reviewing courts
have characterized as sole physical custody with generous
visitation rights for the other parent. (See, e.g., id. at pp. 758–
760 [where father had custody “every Thursday evening until
Friday morning and every other weekend from Friday evening
until Monday morning,” “Mother had what was effectively
sole physical custody, and Father had liberal visitation rights”];
In re Marriage of Whealon (1997) 53 Cal.App.4th 132, 142
[same].) Thus, notwithstanding the reference to “joint physical
custody,” we must review the order as a change in custody
awarding father sole physical custody of the children.
2
modification was necessary to serve the children’s best interests.
We find no abuse of discretion and affirm.
FACTS AND PROCEDURAL BACKGROUND
At mother’s request we have sealed certain confidential
records related to this child custody proceeding, including the
custody evaluator’s report that substantially informed the family
court’s decision. (See Cal. Rules of Court, rule 8.45; Fam. Code,
§ 3025.5, subd. (a); id., § 3111, subd. (a).)2 We must, however,
discuss some facts from these records in order to provide an
opinion “in writing with reasons stated” as required under our
state constitution.3 (Cal. Const., art. VI, § 14; see Sager v. County
of Yuba (2007) 156 Cal.App.4th 1049, 1051; cf. § 3111, subd. (f)
[“For purposes of this section, a disclosure is unwarranted if
it is done either recklessly or maliciously, and is not in the best
interest of the child.”].) Consistent with our standard of review,
we state the facts in the light most favorable to the family court’s
ruling, drawing all reasonable inferences to uphold the court’s
decision. (In re Marriage of Mix (1975) 14 Cal.3d 604, 614;
Chalmers v. Hirschkop (2013) 213 Cal.App.4th 289, 300.)
2 Statutory references are to the Family Code, unless
otherwise designated. Rule references are to the California
Rules of Court.
3 We also granted mother’s request to file the challenged
order under seal to the extent the order discussed the custody
evaluator’s recommendations. But, again, because mother’s
appeal challenges the family court’s stated grounds for modifying
custody—grounds that largely rested on the evaluator’s
observations and recommendations—we must discuss the order
and the family court’s reasoning to fulfill our constitutional
mandate to provide a written opinion with reasons stated for
our disposition of the appeal.
3
1. The Judgment of Dissolution
Mother and father were married in 2004 and separated
in 2014. They have two sons: J.W. (born 2006) and L.W. (born
2009). At the time of the parents’ separation, L.W. had been
diagnosed with autism and was receiving special education
and therapeutic services.
On June 14, 2016, the family court entered a judgment of
dissolution awarding the parents joint legal custody and mother
de facto sole physical custody of the children. (See fn. 1, ante.)
In exercising joint legal custody, the judgment required
both parents to consent to decisions regarding each child’s
enrollment in public or private school; participation in
extracurricular activities; nonemergency medical, dental, and
orthodontic treatment; participation in mental health counseling,
therapy, or treatment; change in residence; issuance of
a driver’s license; and flying as an unaccompanied minor.
With respect to physical custody, the judgment granted
father visitation with the children on the first, third, and fifth
weekends of the month; Tuesday evenings; and Wednesday
evening until Thursday morning. Mother had custody of the
children all other times. The judgment granted each parent
two weeks of vacation time with the children during their
summer break from school; made other provisions for custody
during the holidays; and prohibited the parents from removing
the children from the state without the other parent’s prior
written consent.
2. Father’s Request for Order Modifying the Judgment
In the two years following entry of the judgment,
significant disputes between the parents arose over the exercise
of joint legal custody, particularly with respect to educational
4
and therapeutic decisions for L.W. Disagreements also emerged
concerning father’s contact with the children when they were in
mother’s care. In May 2018, father, through his legal counsel,
proposed the parents stipulate to a parenting plan coordinator
to resolve what he characterized as “recurrent child custody
disputes.” Mother rejected the proposal.
On August 24, 2018, father filed a request for order (RFO)
modifying the legal and physical custody provisions of the
judgment. The RFO principally sought an order for a
comprehensive child custody evaluation with recommendations
regarding the legal and physical custody of the children.
Pending completion of the custody evaluation, father requested
modification of the visitation schedule to extend his weekend
visits to every weekend and he asked for sole authority to make
decisions regarding the children’s education and psychological
health, including their participation in individual counseling.
In a supporting declaration filed with the RFO, father
catalogued what he characterized as mother’s “refus[al] to
cooperate in the best interests of the children,” including
mother’s efforts to overrule and invalidate father’s agreement
to an Individualized Education Program (IEP) for L.W.; her
refusal to obtain a psychological evaluation for both children;
her rejection of ongoing proposals to obtain co-parenting therapy;
and her refusal to enroll L.W. in an after-school tutoring
program.
Father claimed mother had also engaged in increasingly
“inappropriate and abusive conduct” toward him since entry
of the judgment, including limiting his access to the children
and “denigrating” him in their presence. The “most egregious
example,” according to father, was a February 2018 phone call
5
mother conducted with the speaker phone on in L.W.’s presence,
during which she called father “ ‘dirt,’ ‘piece of shit,’ and ‘child
abuser’ ” while accusing father of “sexually targeting [his] friend’s
five-year-old daughter.” The next evening, father realized L.W.
had been present for the call after the boy “repeatedly (and
with great anxiety)” asked father not to schedule any time with
father’s friend and her daughter, then repeated a statement
father made during the previous night’s call. Apart from this
incident, father said mother was “offensive and disparaging”
to him “on many other occasions in front of the children”;
she refused to allow the boys to video chat with him during
her custodial time; she concealed important events involving
the children, including L.W.’s first communion; and she objected
to father attending the boys’ extracurricular activities, including
J.W.’s sporting events, during her custody time.
Because mother refused to agree to a parenting plan
coordinator, father maintained a comprehensive custody
evaluation was needed to examine the increasingly
counterproductive conflicts and to provide guidance on
how he and mother could “appropriately co-parent” the boys.
On October 4, 2018, mother and father entered a
stipulation to appoint a child custody evaluator “to make
non-binding findings and recommendations to the parties
and their counsel regarding physical and legal custody” of
the children. The parents expressly agreed “a child custody
evaluation is appropriate based on the issues raised in [father’s]
RFO and the major disagreements between the parties regarding
appropriate services/activities to address [L.W.’s] special needs.”
They also stipulated to continue the hearing on father’s RFO;
to set a hearing on the evaluator’s recommendations; and to meet
6
and confer, through their respective legal counsel, to reach
a possible “agreement regarding applicable Sanchez waivers.”4
On November 27, 2018, the family court entered an order
confirming the terms of the stipulation.
3. The Custody Evaluation
On April 18, 2019, the family court entered an order
on mother’s and father’s signed stipulation appointing Karin
Manger as child custody evaluator for the purpose of making
findings and recommendations to the court. Among other things,
the stipulation and order provided, “The evaluator’s report shall
be received in evidence without foundation or objection, subject
to cross-examination and the right of the parties to challenge
the findings and conclusions of the evaluator and to examine her
and any out-of-court declarants at the evidentiary proceeding.”
On May 27, 2019, Manger submitted her child custody
evaluation report to the family court in accordance with the
stipulation. As outlined in the report, Manger met with each
parent individually twice; conducted a home visit to each parent’s
residence; met with each parent and the children at her office;
conducted a school observation of L.W.; and held a conjoint office
meeting with the parents. She also interviewed professionals
who had provided educational and behavioral services to L.W.
since entry of the judgment of dissolution and other individuals
familiar with the family; reviewed documents provided in
connection with those interviews; and attended L.W.’s most
4 A Sanchez waiver generally “allow[s] for admission of
records containing case-specific hearsay.” (People v. Johnson
(2020) 55 Cal.App.5th 96, 99, fn. 2; see People v. Sanchez (2016)
63 Cal.4th 665 (Sanchez).)
7
recent IEP planning meeting (in late May 2019) at his
elementary school.
Manger determined “the present legal custody
arrangement is not serving the children’s needs.” Her
investigation had shown the parents were unable “to cooperate
in such a manner as to make mutually agreeable decisions,
that are also in the best interest of the children, in a timely and
effective way.” Addressing concerns father raised in his RFO,
and based on her interviews with the parents, children, and other
professionals who had worked with the family, Manger concluded
that J.W. and L.W. would not get the services they needed,
“especially those that do not directly involve [mother], if [mother]
is able to have the final or sole decision-making authority” over
mental health services and educational planning for the boys.
Thus, the evaluator recommended a modification to the joint
legal custody arrangement that would grant father final
decision-making authority in these areas. In Manger’s view,
absent these “carve-outs to the legal custody, there is the
likelihood that both parents will turn repeatedly to the court
to make decisions for their children.”5
5 While Manger described mother as “a fully engaged and
very loving parent,” she observed mother’s “identity is somewhat
tied to being the parent of a special needs child,” and this
caused mother to “have a great deal of difficulty letting go of
her influence over the children, as evidenced by her resistance
to the children participating in programs and activities
recommended by others.” For example, Manger noted mother
had been “very resistant to either child participating in an after-
school program and individual therapy,” just as she had resisted
L.W. participating in “additional interventions for his social
skills.” Manger determined these were “very appropriate
8
services” that would “benefit” both boys, and she expressed
“great concern that even though [these services] ha[d] been
recommended by various professional[s] trained in working
with children on the Autistic Spectrum, [mother] still ignore[d]
their input and recommendations.” The evaluator also
worried that mother’s “inability, or unwillingness, to consider
recommendations that she does not agree with could result in
the children missing out on opportunities that would ultimately
benefit them.”
Manger was especially troubled that, due to mother’s
resistance, L.W. had not been enrolled in a social skills group
nearly a year after his applied behavior analysis (ABA) therapist
had recommended those services. Based on her observations,
Manger determined it was “crucial” that the recommended
services be implemented “as soon as possible,” as without
intensive social skills training, she believed L.W. was unlikely to
develop the skills needed to have appropriate social relationships
as he approached middle school.
Manger found father was willing to accept the input and
recommendations of professionals who worked with the family,
but when he tried to implement those recommendations, he
was consistently stymied by mother’s resistance. The evaluator
observed father was more “willing to be self-reflective” and this
suggested he would be better able to make “well informed, child
focused decisions for the children.” Mother, in contrast, appeared
unable to “separate her negative feeling about [father] from
the needs of the children,” and Manger warned this would
“make any future co-parenting nearly impossible,” as mother
seemed likely to “continue to stonewall any suggestions made
by [father].” Manger observed mother “was often unwilling to
negotiate with [father] to find a mutually acceptable solution,
and she was unyielding in her stance of being the parent who
knows what is best for the children.”
9
Manger also recommended modification of the physical
custody arrangement to give father equal time with the children.
While the evaluator found both parents were “dedicated” and
wanted the best for their children, she observed mother had
“a great deal of resentment and distrust” for father, which
“seep[ed] out in various ways” and had “a negative effect” on
the boys. Specifically, Manger found mother’s distrust was at
times “transferred onto [L.W.], who then reacts with greater fear
and anxiety about change than he might otherwise experience,”
causing him to adopt “more resistance toward [father’s] parenting
style.” While Manger did not believe mother “intentionally
alienates” the children from father, she found mother’s
“psychological need to be the preferred parent” caused mother
to engage in conduct that did “not promote the boys to love and
trust their father to the extent that would be optimal.” Contrary
to mother’s allegations, the evaluator saw no evidence that
father was “overly harsh or impatient with the boys, or that
his parenting style has a negative effect on either child.” Rather,
she found both boys would benefit from spending more time with
father, as he tended to encourage them “to be more independent
and self-sufficient than [did mother],” which afforded the boys a
needed “balance” to mother’s “more coddling style of parenting.”
4. The Evidentiary Hearing
The matter was continued for more than two years
following issuance of the custody evaluator’s report, in part to
facilitate discovery and largely due to the COVID-19 pandemic.
In advance of the evidentiary hearing on his RFO, father
filed a trial brief seeking primary physical custody of the children
and sole legal custody based on the custody evaluator’s report
and what father characterized as mother’s “continued refusal
10
to implement any of the recommendations set forth therein
or recommendations made by other educational professionals
regarding services to be provided to the minor children.”
Beginning on May 3, 2021, the family court conducted a
six-day evidentiary hearing. The principal witnesses were father,
mother, and the custody evaluator. The court denied mother’s
request to have J.W. address the court regarding his preference
for custody under section 3042.
Manger and father largely reiterated the evidence and
findings contained in the custody evaluation report, while father
also testified to ongoing, and sometimes worsening, conflicts
with mother that had persisted in the two years since the report
was issued. In the past year, father said mother had refused to
cooperate with him regarding vacation requests, seeing the boys
on their birthdays, and J.W.’s dental care.6 Father also described
6 Father highlighted the conflict over J.W.’s dental care
as especially troubling. He said mother had generally refused
to cooperate with J.W.’s orthodontic treatment after father asked
her to contribute financially, which had led to delays in J.W.
receiving recommended procedures. In the past year, however,
mother had intensified her protest that J.W.’s braces were
“unnecessary” and that the orthodontist had recommended them
just “for the money.” The conflict culminated in mother taking
J.W. to a different dentist and unilaterally demanding to have
J.W.’s braces removed before his treatment was completed
because, in mother’s words, J.W.’s orthodontist had a “ ‘financial
vested interest [in doing] whatever [father] tell[s] them to.’ ”
J.W.’s braces were not removed, but the boy’s orthodontic
treatment was nonetheless delayed due to the parents’ inability
to cooperate and productively communicate regarding his
dental care.
11
how the lack of cooperation and conflict had continued to spill
over into decisions regarding the boys’ medical and mental
health treatment. Despite recommendations for L.W. to undergo
testing for attention deficit disorder, father testified that mother
refused even to permit testing, citing concerns over L.W.
taking medication for the condition. He said mother refused
to allow him to discuss the HPV vaccine with J.W.’s pediatrician,
describing a recent incident when mother forced the pediatrician
to end a joint call by shouting down father’s questions and
“talking about litigation.” And, despite recommendations from
behavioral therapists and Manger to enroll L.W. in a social skills
group and to obtain individual counseling for both boys, father
testified mother continued to thwart his efforts to implement
those recommended services.
In advance of the 2020 school year, L.W.’s IEP team
recommended that his special services should be largely
discontinued. The team found L.W. had made tremendous
progress between spring of 2019 and 2020, he was academically
thriving, and he no longer needed—and did not want—the
in-class aide who had shadowed him since kindergarten. Father
agreed with the recommendation; mother opposed it. Notes
from an IEP team meeting documented that mother was
“repeatedly reminded to maintain a civil tone in expressing her
disagreement.” Father said this referred to mother “interrupting,
raising her voice, sort of talking over people,” and engaging in
“constant fault finding of the observations and recommendations
that the IEP team was making.” Ultimately, the school district
implemented the IEP based on father’s consent, notwithstanding
mother’s opposition. Father nevertheless maintained mother’s
combative stance remained relevant to the future custody
12
arrangement because there were other education decisions
to be made for both children outside the IEP context.
In March 2020, a school psychologist sent an email to
counseling students and parents offering 15-minute weekly
“ ‘check-ins’ ” during the “ ‘period of school closure[s]’ ” occasioned
by the COVID-19 pandemic. Mother responded by demanding
the psychologist’s removal from L.W.’s IEP team, characterizing
the offer as an attempt “ ‘to implement IEP modifications,
and to expand [the psychologist’s] role since she aggressively
proposed to remove [L.W.’s] aide.’ ” Mother insisted the offer
was a “ ‘harassing email,’ ” berated the psychologist for having
“ ‘the arrogance to think that I need her counseling,’ ” and asked
whether the psychologist would be father’s “ ‘star witness’ ” in
“ ‘the district’s further interference in my family law matters?’ ”
The district declined to remove the school psychologist from
L.W.’s IEP team.
The evidence showed L.W. responded well to the district’s
recommended changes, which father supported and mother
opposed. A 2021 triennial evaluation found L.W. no longer
required special education services. He earned all A’s and B’s
during the challenging pandemic year and scored average or
above average on a variety of achievement tests. The district
concluded L.W. had “ ‘made significant progress and no longer
[met] eligibility for special education services.’ ”
Mother’s testimony largely corroborated father’s account
of the ongoing lack of cooperation. She confirmed L.W. had
not been enrolled in a social skills group, and asserted the
recommendation had been made because father was threatening
“a lawsuit.” She also confirmed she had refused to consent
to the boys participating in individual therapy, citing, among
13
other concerns, her opposition to them seeing father’s “chosen
therapist” and her view that neither boy needed therapy to
deal with the emotional issues accompanying their unique
family situation. In mother’s telling, L.W.’s success in being
“mainstream[ed]” was due to her being the “stubborn one” who
did not accept every professional opinion the way father did.
She rejected the evaluator’s suggestion that her open conflicts
with L.W.’s therapists had hindered his treatment and
maintained that any perceived tension was due to her “exposure”
of the therapists’ wrongdoing. Mother admitted she opposed J.W.
having braces, but said it was because she believed a 12-year-old
was “too young,” despite never having spoken to a medical
professional who shared that view. She denied that she opposed
J.W. taking the HPV vaccine, but acknowledged she had not
taken him to receive it. She would not agree to a parenting plan
coordinator because she believed that person would always be
biased for father.
5. The Statement of Decision
On June 30, 2021, the family court issued a statement
of decision thoroughly summarizing and analyzing the evidence
presented at the hearing.7 The court ordered father would have
7 Mother requests we take judicial notice of records related
to a citation issued by the Court Reporters Board of California
against the court reporter who transcribed the evidentiary
hearing. Mother makes the request to support a single sentence
in her opening brief, asserting, “The Court further violated
due process, among other ways, by entering the Order before
the Court Reporter produced a transcript.” We will grant the
request and take judicial notice of the records (Evid. Code, § 452,
subd. (c)), but mother’s one-sentence argument does not establish
reversible error, let alone that a violation of her due process
14
sole legal custody and de facto sole physical custody of J.W. and
L.W. (See fn. 1, ante.) In exercising sole legal custody, the order
vested father with final decision making authority regarding
the children’s enrollment in school; participation in particular
religious activities (provided that each parent would be
authorized to bring the children to religious services or
ceremonies of the parent’s choice during the parent’s custody
time); psychiatric, psychological, or other mental health
counseling or therapy; selection of a doctor, dentist, or
other health professionals (except in emergency situations);
participation in extracurricular activities; and out-of-state travel.
As for de facto sole physical custody, the order granted mother
parenting time (visitation) with the children the second and
fourth weekends of each month from Friday at 6:00 p.m. through
Sunday at 6:00 p.m., and each Tuesday and Thursday from
3:00 p.m. until 7:00 p.m.8 Father would have physical custody
of the boys all other times.
rights occurred. In her closing argument to the family court,
mother raised the matter in connection with an unpublished
appellate opinion holding the appellant’s failure to provide a
reporter’s transcript mandated that the reviewing court presume
the unreported trial testimony would demonstrate the absence
of error. Here, we have a reporter’s transcript of the family court
proceedings to review mother’s appellate arguments, and mother
has not demonstrated how she was otherwise prejudiced by the
family court making its findings, based on the court’s receipt of
the evidence during the hearing, without a written transcript
of the testimony, as juries regularly do.
8 The order provided mother would have no visitation with
the children from July 4, 2021 to July 23, 2021, citing the need
for a “hiatus to ameliorate [mother’s] malign influence on the
15
The court found that “while [mother] sincerely loves the
children, her suspicion and reflexive hostility toward medical
and educational professionals, her efforts to sabotage the boys’
relationship with their father, and her false and unsupported
assertions in this hearing, convince this Court that it is in the
children’s best interests that [father] have authority to make
decisions concerning their health, education and welfare, and
exercise more of the day-to-day parenting time.”
The court found mother’s “testimony was often at odds
with more reliable evidence.” Among other examples, the court
highlighted an incident when mother made a “ ‘gun gesture
toward [L.W.]’s face’ with her hands,” purportedly to teach
the young boy that “he would not be believed if he complained
about things that were not as serious as he claimed.” L.W.’s
ABA therapist observed the incident and documented that it
resulted in “an ‘intense cry’ ” by L.W. In an email response to the
therapist, mother expressed contrition for the incident, clarifying
her intention and explaining she had “ ‘miss-expressed’ ” herself.
In an interview with Manger, mother likewise admitted making
the gun gesture but maintained the matter “had been taken
out of context.” However, in her testimony, mother denied ever
making the gesture, claimed Manger had misrepresented her
interview, and disavowed her written apologies, insisting “there
was nothing for her to be sorry about” and that she wrote the
email just to get L.W.’s therapist “ ‘off [her] back.’ ” The court
boys.” Because this period has passed, we cannot grant mother
effective relief from this aspect of the order, and we consider the
issue moot. (See Californians for an Open Primary v. McPherson
(2006) 38 Cal.4th 735, 783.)
16
found mother’s testimony reflected “not merely a failure to accept
responsibility for her conduct,” but also an intentional falsehood. 9
The court found there were “significant changes in
circumstances” since the June 2016 judgment was entered.
While the existing joint legal custody arrangement had been
premised on the understanding that the parents were capable
of cooperating in making decisions about the boys’ education,
extracurricular activities, medical and mental health treatment,
and travel, the court found the ensuing five years had proved
the parents had “an abysmal co-parenting relationship.” The
court explained:
“[Father] has been engaged in the children’s
educational process, trusts the judgment of
professionals, and encourages the children’s
independence. [Mother] is suspicious of
educators and other professionals, undermines
the children’s relationship with their father,
fosters their dependence on her, does not
support frequent and continuing contact
between the boys and their father, and lack[s]
candor. [Mother] has impeded initiation of
needed services for [L.W.]. She has encouraged
resistance and refusal behavior by the boys
toward [father]. Now [L.W.] has successfully
exited from special education services due
9 As we discuss later, the court found the “most troubling
aspect” of mother’s lack of credibility related to false assertions
she made in a declaration purporting to present J.W.’s
statements regarding alleged abuse by father.
17
in part to steps recommended by the school
district. [Mother] fought those measures;
[father] supported them.”10
The court also found that, while the existing physical
custody arrangement had been premised on the understanding
that mother would facilitate frequent and continuing contact
with father, the past five years had shown mother “sabotaged
[father’s] relationship with the boys.” The court observed mother
had refused to let father see L.W. on his birthday; she accused
father of being a “pedophile” and “child abuser” on a call she
knew L.W. would overhear; she “refused, with no reason,
to allow the boys to be at [father’s] home during remote
learning sessions”; the custody evaluator found mother had
“ ‘a psychological need to be the preferred parent,’ and thus
‘does not promote the boys to love and trust their father’ ”;
mother’s conduct had “caused the boys to exhibit resistance
10 Mother contends the court improperly considered matters
related to L.W.’s 2018 IEP that were settled by a final judgment
in an administrative action she litigated against the school
district. While mother argues the court “violated the doctrine
of collateral estoppel by relitigating the appropriateness of the
2018 IEP,” she does not cite to any place in the record where
she objected to these matters being raised. Indeed, mother
emphasizes that father called a school district representative
as a witness, who, in mother’s telling, “accepted an opportunity
to testify against the parent who successfully defended [L.W.]’s
rights against the District,” but mother does not point to, and
we cannot find, any objection she made on res judicata grounds
to this testimony or other evidence concerning the 2018 IEP.
We deem the argument forfeited. (See Amato v. Mercury
Casualty Co. (1993) 18 Cal.App.4th 1784, 1794.)
18
behavior toward their father”; and father had testified to
experiencing increased distance between himself and L.W. Based
on this evidence, the court found mother no longer supported
“frequent and continuing contact” between the children and
father. Thus, notwithstanding the children’s acknowledged
interest in “stability and continuity,” the court concluded father
should have primary physical custody to ensure there would
be positive contact with “both parents.”
DISCUSSION
1. The Family Court Reasonably Exercised Its
Discretion to Preclude Mother from Calling J.W.
as a Witness
Section 3042 requires a court to “consider” and give “due
weight” to the wishes of children who are of “sufficient age and
capacity to reason so as to form an intelligent preference as to
custody or visitation” when making or modifying a custody and
visitation order. (Id., subd. (a).) If a child is “14 years of age
or older and wishes to address the court regarding custody or
visitation, the child shall be permitted to do so, unless the court
determines that doing so is not in the child’s best interest, in
which case, the court shall state its reasons for that finding
on the record.” (Id., subd. (c).) Consistent with the foregoing,
section 3042 directs the family court to control the child’s
examination, or even preclude the child from testifying
altogether, “to protect the best interest of the child.” (Id.,
subd. (b).) If the court precludes the child’s testimony, it must
provide “alternate means” of obtaining information regarding
the child’s preferences. (Id., subd. (e).) We review the family
court’s decision to preclude a child from testifying for an abuse
19
of discretion. (See Niko v. Foreman (2006) 144 Cal.App.4th 344,
366.)
Rule 5.250(d)(3) provides a list of factors the judicial officer
“should consider” in determining whether addressing the court
is in a child’s best interest, including whether the child is of
sufficient age and capacity to form an intelligent preference as to
custody or visitation and to understand the nature of testimony;
whether the child “may be at risk emotionally” if he or she is
permitted to address the court; whether the child’s “anticipated”
testimony is “relevant to the court’s decisionmaking process”;
and whether any other factors weigh in favor of or against having
the child address the court, “taking into consideration the child’s
desire to do so.”
Mother contends “every” rule 5.250(d)(3) factor “weighed
in favor” of allowing J.W. to address the court, and she argues the
family court abused its discretion by purportedly failing to state
its reasons for finding J.W.’s best interests would not be served
by permitting the testimony. (See § 3042, subd. (c).) She also
claims the court failed to consider alternatives to obtaining
information about J.W.’s preferences. (See id., subd. (e).)
The record does not support mother’s contentions.
The family court found calling J.W. as a witness “would
not be in his best interest.” It expressly based that finding
on a declaration and related testimony in which mother falsely
“attributed language in her own declaration to [J.W.] and sought
to place the child in the middle of a custody dispute in a manner
the Court finds harmful to the child.” The court characterized
this as “[t]he most troubling aspect of [mother’s] testimony,”
summarizing it as follows:
20
“[Mother] also claims that [J.W.] desired
to testify in this proceeding. She told [J.W.]
to write his statement to the judge in the third
person. [Mother] advised him what to include.
[J.W.], she claimed, then typed the statement
himself. According to [mother], she then cut
and pasted this purported statement into her
declaration, and . . . filed it.”
“[J.W.], of course, did not sign the
[declaration], and it is written in the third
person, that is, [mother’s] declaration says
that [J.W.] says ‘x’ or wants ‘y.’ These include
allegations – again, claimed to come from
[J.W.]’s mouth – that [father] is abusive toward
both boys, the food in his house is bad (and
such ‘baby’ portions!), the house ‘lacks basic
hygiene,’ and there is insufficient hot water
so they go to school without having showered.”
“Although [mother’s] declaration was
filed only five weeks before the hearing started,
she stated that [J.W.]’s purported original
statement no longer existed, and it was not
offered in evidence. [¶] Nothing about this
is plausible. No one who has been to [father’s]
home testified to inadequate hot water or
unhygienic conditions; no one has noticed
the children being dirty or underfed, despite
teachers and a personal aide being with
[L.W.] every day. The children made no such
complaints of malnourishment or ill treatment
21
to Ms. Manger. And [mother’s] assertion
that she was merely presenting [J.W.]’s own
statement to the Court – now mysteriously
vanished from her computer – is absurd
on its face.”
Our review of mother’s testimony and declaration is
consistent with the family court’s summary.11 Consistent with
11 Mother’s declaration included other troubling statements
that were strikingly similar to various threads of her narrative
in the underlying custody proceedings. These statements—
attributed to J.W. and, according to mother, supposedly “pasted”
“verbatim” from the boy’s written statement—included, among
other things: “[J.W.] (14) has asked to address the court saying
that he’s afraid that he will be ordered to spend more time with
Dad if he doesn’t address the court”; “[J.W.] says that Dad told
him and [L.W.] that ‘Manger will make sure that I get more
time with you guys; that’s why I hired her’ ”; “[J.W.] gets upset
when Dad makes [L.W.] cry, mocks him, provokes conflict, and
physically hurts [L.W.]”; “[J.W.] says that Dad gives [J.W.] and
[L.W.] guilt trips, so he fakes to agree with Dad just to avoid
a guilt trip”; “[J.W.] says that ‘Dad’s pretty messed up’, because
he lies and blames Mom for his own faults under his own roof”;
“[J.W.] says that Dad has tried to turn [J.W.] against [L.W.],
saying all sorts of bad things about [L.W.] to [J.W.], and
encouraging [J.W.] to not spend time with [L.W.]”; “[J.W.] wants
the court to order Dad to stop being cruel to [J.W.] and [L.W.]”;
“[J.W.] says that he saw [L.W.’s ABA therapist] abuse [L.W.]
in therapy, as soon as Mom would turn her back”; “[J.W.]
wants the court to order Dad to learn about being appropriate”;
“[J.W.] and [L.W.] feel violated when Dad touches their bottoms
inappropriately, ignoring their firm requests to stop, and they
dislike Dad’s vulgar sexual jokes and language with them”;
“[J.W.] says that Mom respects him and [L.W.], asks their
opinions on things, lets them make choices, and plays sports
22
the directive to consider information “indicating that the child
may be at risk emotionally” if he is permitted to testify (rule
5.250(d)(3)(C)), the family court’s statement of decision explains
that mother’s declaration and testimony proved mother “sought
to place the child in the middle of a custody dispute in a manner
the Court finds harmful to the child.” (Italics added.) The record
supports the court’s ruling. We find no abuse of discretion.
The record also refutes mother’s contention that the
family court failed to obtain information about J.W.’s preferences
through alternative means. (See § 3042, subd. (e).) As the
court noted, it already “had the benefit of Ms. Manger’s multiple
interviews and observations” of J.W., which included information
about his preference to maintain the existing custody and
visitation arrangements. We are satisfied that the family court
considered J.W.’s preference and gave it due weight in making
the modification order. (Id., subd. (a); see In re Marriage of
Winternitz (2015) 235 Cal.App.4th 644, 655 (Winternitz) [where
record indicated family court considered minor’s preference,
and games with them”; “Dad forces everything, but gives them
tons of screen time and adult content: it’s unbalanced”; “[J.W.]
recalls Dad forcing [L.W.] to play with his girlfriend’s daughter,
yelling at [L.W.] in front of the movie theater to please his
girlfriends, etc.”; “Dad didn’t let [L.W.] attend his friend’s
birthday party, because of Dad’s girlfriend[’s] last minute plans”;
“[L.W.] missed scout and catechism activities too when at Dad’s”;
“[J.W.] says that he can’t rely on Dad; but he always can on
Mom”; “[J.W.] says that Mom never speaks bad about Dad”;
“[J.W.] says that he really loves his life at Mom’s”; “[J.W.] says
that Mom is firm about being responsible, but she’s loving;
never mean or inappropriate like Dad.”
23
although it precluded minor’s testimony, court did not abuse
its discretion by declining to follow minor’s wishes].)
2. The Family Court Properly Admitted the Custody
Evaluator’s Report into Evidence
Mother contends the family court should have sustained
her objections to the custody evaluator’s report and excluded
the report from evidence. She principally maintains the report
and the evaluator’s testimony related case-specific hearsay
statements to the court as fact finder without a valid Sanchez
waiver. (See fn. 4, ante.) She also argues the court and evaluator
violated various statutory requirements that mandate exclusion
of the report. The record does not support these contentions.
In Sanchez, our Supreme Court held that “[w]hen any
expert relates to the jury case-specific out-of-court statements,
and treats the content of those statements as true and accurate
to support the expert’s opinion, the statements are hearsay.”
(Sanchez, supra, 63 Cal.4th at p. 686.) Under Sanchez, an expert
“may still rely on hearsay in forming an opinion, and may tell
the jury in general terms that he did so,” but an expert may
not relate “case-specific facts asserted in hearsay statements,
unless they are independently proven by competent evidence
or are covered by a hearsay exception.” (Id. at pp. 685–686.)
“Case-specific facts” are those relating to the particular events
and participants alleged to have been involved in the case
being tried. (Id. at p. 676.)
Although we have not found relevant guidance in the
body of law governing child custody decisions, we may assume
without deciding that the principle articulated in Sanchez
is applicable here, as child custody is a fundamental right
implicating constitutional due process protections. (See Stanley
24
v. Illinois (1972) 405 U.S. 645, 651.) Assuming the principle
applies, the child custody evaluation plainly implicates Sanchez
—the evaluator relied on out-of-court statements in formulating
her opinions, and her report naturally related the contents of
those out-of-court statements in explaining the basis for her
recommendations.
The family court also assumed Sanchez applied, but it
rejected mother’s hearsay objection, concluding the parties had
stipulated to admission of the custody evaluation report, subject
to each party’s right to cross-examine out-of-court declarants.
(See § 3111, subd. (c) [“The [custody evaluation] report may be
received in evidence on stipulation of all interested parties and
is competent evidence as to all matters contained in the report.”].)
The plain language of the stipulation supports the court’s ruling.
The April 18, 2019 stipulation appointing Manger as custody
evaluator, signed by mother and her counsel on November 16,
2018, states: “To the extent that the evaluator testifies to
case-specific facts based upon out-of-court statements and
asserts those facts are true because she relied upon their truth
in forming her opinion, the parties shall have the opportunity
to cross-examine the out-of-court declarant or the evidence
shall be excluded and the opinion upon which the evidence was
relied shall be likewise excluded.” The stipulation also states:
“The evaluator’s report shall be received in evidence without
foundation or objection, subject to cross-examination and
the right of the parties to challenge the findings and conclusions
of the evaluator and to examine her and any out-of-court
declarants at the evidentiary proceeding.” The family court
found the language was “unambiguous”: “If a party has the
opportunity to cross-examine the ‘out-of-court declarant,’
25
the declarant’s statements may be received in evidence; without
the opportunity to cross-examine, the evidence is excluded.”
Having independently reviewed the stipulation, we agree with
the family court’s construction of the relevant language. (See
Smith v. Selma Community Hospital (2008) 164 Cal.App.4th
1478, 1501.)
Mother does not contend she was denied the opportunity
to cross-examine out-of-court declarants. Instead, she asserts she
“did not relinquish her right to Sanchez protections intentionally,
knowingly, or voluntarily,” because she merely “complied
with her attorney’s urgent ‘ASAP’ request to sign a document
presented as a ‘basic contract.’ ”12 The family court rejected
that factual contention, finding “[t]he parties intended to waive
hearsay objections to the report under Sanchez, subject to a right
to cross-examine the source of statements quoted in the report,”
and “both parties believed, and their conduct reflected the belief,
that such Sanchez waivers had been agreed to.” The evidence,
including mother’s signature on the stipulation (just below the
clause stating the report “shall be received in evidence without
foundation or objection”), supports the court’s factual finding.
The court’s credibility finding against mother likewise supports
its rejection of her claim that she did not knowingly execute
the stipulation. (Winternitz, supra, 235 Cal.App.4th at p. 653
[credibility determinations are the exclusive province of the
family court; as “an appellate court, we do not second-guess
12 Mother refers to an email she received from her former
attorney transmitting the stipulation appointing Manger
as custody evaluator. She relied on the same email in her
evidentiary objections to the custody evaluation report.
26
such evidentiary assessments”]; see Long v. Long (1967) 251
Cal.App.2d 732, 736–737 [“There is no denial of due process,
however, when a litigant waives his right to object to the contents
of a report.”].)
Mother’s other objections are similarly refuted by the
record or fail to acknowledge the family court’s discretion in
ruling on factual and evidentiary matters related to a custody
evaluation. Mother contends the evaluator failed to send her
a signed copy of the report at least 10 days before the hearing
as required under rule 5.220(g)(1)(A). But the evaluator testified
she sent a signed report to mother shortly after the report was
completed, when mother was self-represented, at the same time
the evaluator sent the report to father’s attorney and filed it
with the court. Mother’s prehearing disclosure of her anticipated
witnesses and evidence, made when she was self-represented
and over a year before the evidentiary hearing commenced,
acknowledged mother’s receipt of the custody evaluation report
and corroborated the evaluator’s testimony on the issue.
Mother contends the evaluator failed to provide the
required notice regarding confidentiality of the child custody
evaluation report. (See rule 5.220(g)(1)(B).) However, the first
page of the copy of the report included in mother’s appellant’s
appendix is the form FL-328 Notice Regarding Confidentiality
of Child Custody Evaluation Report, just as required under
rule 5.220(g)(1)(B).
Mother contends the family court erred by failing to enter
an order appointing the child custody evaluator on form FL-327.
(See rule 5.225(k)(2); see also rule 5.220(d)(1)(B).) Without
the order, she argues the evaluator “arrogated to herself the
authority to determine the evaluation’s scope and purpose,”
27
in violation of rules requiring the evaluator to consider “ ‘the
health, safety‚ welfare, and best interest of the child within
the scope and purpose of the evaluation as defined by the court
order.’ ” (See rule 5.220(d)(2)(A).) Contrary to that assertion,
mother’s stipulation appointing the evaluator, and the
court’s order entered upon it, specified that “THE PARTIES’
ATTORNEYS SHALL PROVIDE INFORMATION TO
THE EVALUATOR ABOUT THE SCOPE OF INQUIRY
OF THE EVALUATION,” and the evaluator’s report provided
recommendations the evaluator assessed to be in the children’s
best interests. (Boldface omitted.) Mother has not presented
a record demonstrating the evaluator failed to follow this term
of the stipulation, nor has she cited authority holding such a
stipulation mandates exclusion of a custody evaluation report.
(Cf. In re Marriage of Seagondollar (2006) 139 Cal.App.4th 1116,
1133 [order appointing evaluator was “woefully inadequate”
where it “gave the evaluator carte blanche to define . . . purpose
and scope of the evaluation”].)
Finally, the family court reasonably rejected mother’s
objections based on the evaluator’s seeming failure to file the
FL-326 declaration regarding qualifications and purported bias.
(See rule 5.225(l)(1)(B).) It is settled that the family court has
discretion to excuse an evaluator’s failure to adhere to every
requirement set forth in rule 5.220 or 5.225 and that the lower
court’s factual findings regarding claims of bias are subject to
limited appellate review. (See Winternitz, supra, 235 Cal.App.4th
at p. 653.) “To hold otherwise and thus to endorse appellate
micromanagement of every communication or act by the
evaluator would make it impossible for evaluators to perform
28
their very difficult and crucial functions.” (Leslie O. v. Superior
Court (2014) 231 Cal.App.4th 1191, 1212.)
The evaluator testified to her qualifications, and the family
court reasonably determined mother’s objection regarding the
FL-326 form went to “the weight to be accorded the [evaluator’s]
opinion,” but did not warrant striking the report.13 (See
Winternitz, supra, 235 Cal.App.4th at p. 653.) The evaluator
also testified that she controlled for bias and gathered balanced
information from both parties. The court found there was no
basis for mother’s claim of bias, which amounted to “a statement
of disagreement, not [an] evidentiary objection[ ].” Mother
has not presented a record demonstrating the court abused
its discretion. (See id. at pp. 653–654.)
3. Substantial Evidence Supports the Family Court’s
Changed Circumstances Finding
Mother contends the family court erred by modifying a
permanent custody arrangement without applying the changed
circumstances rule or weighing policy considerations favoring
stable custody arrangements. The record contradicts her on
both counts.
13 The evaluator testified she is a licensed clinical social
worker. (See rule 5.225(c)(1)(D).) She has performed over
750 full child custody evaluations, over 350 solution focused
evaluations, and 10 to 12 evaluations involving special needs
children, and she has completed the education and training
requirements for custody evaluators specified in the California
Rules of Court. (See rule 5.225(d).) Manger also testified
that she has experience working with special needs children
in her private practice and in a special education school, and
she has specialized training for autism and ABA therapies.
29
The family court is authorized to modify child custody
and visitation orders throughout a child’s minority whenever
the court finds a modification is “necessary or proper” in
the child’s best interests. (§§ 3022, 3087; see also § 3088
[modification to or from joint custody].) “An application for a
modification of an award of custody is addressed to the sound
legal discretion of the [family] court, and its discretion will not
be disturbed on appeal unless the record presents a clear case
of an abuse of that discretion.” (Foster v. Foster (1937) 8 Cal.2d
719, 730; Munson v. Munson (1946) 27 Cal.2d 659, 666.) We
must draw all presumptions in favor of the challenged order’s
reasonableness and, in the absence of a record compelling
the conclusion that modification was not warranted, we cannot
interfere with the family court’s decision to modify a custody
award. (See Prouty v. Prouty (1940) 16 Cal.2d 190, 193 (Prouty).)
Once a family court has entered a final or permanent
custody order reflecting that a particular custodial arrangement
is in the best interest of a child, “ ‘the 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’ that custody arrangement.” (In re
Marriage of Brown & Yana (2006) 37 Cal.4th 947, 956; In re
Marriage of Burgess (1996) 13 Cal.4th 25, 32–33 (Burgess).)
In recognition of this policy concern, our Supreme Court has
articulated a “variation on the best interest standard, known
as the changed circumstance rule, that the trial court must apply
when a parent seeks modification of a final judicial custody
determination.” (Brown & Yana, at p. 956; Burchard v. Garay
(1986) 42 Cal.3d 531, 534 (Burchard) [“The changed-
30
circumstance rule is not a different test, . . . but an adjunct to
the best-interest test.”].) “Under the changed circumstance rule,
custody modification is appropriate only if the parent seeking
modification demonstrates ‘a significant change of circumstances’
indicating that a different custody arrangement would be in
the child’s best interest. [Citation.] Not only does this serve
to protect the weighty interest in stable custody arrangements,
but it also fosters judicial economy.” (Brown & Yana, at p. 956;
Burchard, at p. 534.)
“The [changed-circumstance] rule requires that one identify
a prior custody decision based upon circumstances then existing
which rendered that decision in the best interest of the child.
The court can then inquire whether alleged new circumstances
represent a significant change from preexisting circumstances,
requiring a reevaluation of the child’s custody.” (Burchard,
supra, 42 Cal.3d at p. 534.) “[I]n view of the child’s interest in
stable custodial and emotional ties, custody lawfully acquired
and maintained for a significant period will have the effect
of compelling the noncustodial parent to assume the burden
of persuading the trier of fact that a change [in custody] is
in the child’s best interest.” (Id. at p. 536.)
Notwithstanding the child’s interest in stability, “in
exercising its discretion, the trial court must duly evaluate
all the important policy considerations at issue in any change of
custody and make its ultimate ruling based upon a determination
of the best interests of the child.” (In re Marriage of McLoren
(1988) 202 Cal.App.3d 108, 113 (McLoren), italics added; see
§ 3020; see also Burchard, supra, 42 Cal.3d at p. 535.) “[I]t is
the public policy of this state to ensure that the health, safety,
and welfare of children shall be the court’s primary concern
31
in determining the best interests of children.” (§ 3020, subd. (a).)
Furthermore, so long as consistent with that primary concern,
our state’s public policy also directs the family court “to ensure
that children have frequent and continuing contact with both
parents after the parents have separated or dissolved their
marriage.” (id., subd. (b).)
In its statement of decision, the family court identified
two primary changed circumstances that warranted modification
of the physical and legal custody arrangements, respectively:
(1) mother had exploited the existing sole physical custody
arrangement to “sabotage the boys’ relationship with their
father”; and (2) the parents’ “abysmal co-parenting relationship”
had rendered the existing joint legal custody arrangement
untenable.
Mother contends these findings fail to “identify”
circumstances that existed in 2016 that have since changed to
require a custody modification. In her telling, father’s evidence
proved only that “[m]other has always been oppositional toward
[f]ather, hostile toward professionals, bent on alienating the
[c]hildren from [f]ather, and prone to false assertions.” Because
father proved only that she had “always” engaged in this
destructive behavior, mother contends the family court erred
by ordering a custody modification without requiring father
to meet his “ ‘initial burden’ ” to show “ ‘changed circumstances
affecting the children.’ ” We agree with father—the argument
is “absurd.”
To accept mother’s argument, we would be forced to
assume, contrary to the public policy of this state, that her
alienating conduct was among the “circumstances then existing
which rendered [the 2016 custody judgment] in the best interest
32
of the child[ren].” (Burchard, supra, 42 Cal.3d at p. 534;
cf. § 3020, subd. (b).) Not surprisingly, the 2016 judgment
manifestly disproves that absurd notion. Indeed, the judgment
expressly states the decision to grant mother primary physical
custody, with generous visitation rights for father, was based
upon “the policy of the State of California to assure that the
children have frequent and continuing contact with both parents”
as well as “the children’s interest in stability and continuity in
the existing custodial arrangement” with mother. (Italics added.)
Even absent this express statement, the family court could have
reasonably presumed the judgment awarding mother de facto
sole physical custody was predicated on a judicial determination
that mother would facilitate the generous visitation rights
granted to father in the decree. (See Prouty, supra, 16 Cal.2d at
p. 193.) Based on the evidence presented, the family court found
mother, contrary to an express predicate for the 2016 judgment,
exploited the award of sole physical custody to sabotage the
boys’ relationship with father and frustrate his visitation rights.
That finding supported the order modifying physical custody.14
14 Mother’s objection to the family court’s discussion
of scholarship on the subject of parental alienation fails to
acknowledge that a court may properly consider evidence that
one parent is not supportive of the other parent’s relationship
with the child when considering custody and related issues.
(See In re Marriage of LaMusga (2004) 32 Cal.4th 1072, 1085
(LaMusga) [“[T]he mother is not purposely trying to alienate
the children from their father, but . . . the mother’s inability to
‘let go’ of her anger toward the father caused her to project those
feelings onto their children and to reinforce the children when
they expressed negative feelings toward their father.”].) Having
examined the entire cause, we are satisfied that, notwithstanding
33
(See Moffat v. Moffat (1980) 27 Cal.3d 645, 652 (Moffat) [“The
deliberate sabotage of visitation rights not only furnishes ground
for modification, it is a significant factor bearing on the fitness
of the custodial parent.”]; Catherine D. v. Dennis B. (1990)
220 Cal.App.3d 922, 932 (Catherine D.) [mother’s “unrelenting
pattern of frustrating” father’s visitation rights, coupled with
findings that father was more likely to permit child’s frequent
and continuing contact with noncustodial parent, “alone provided
adequate grounds for changing custody” to father]; In re Marriage
of Wood (1983) 141 Cal.App.3d 671, 682 (Wood) [“Frustration
of visitation rights by the custodial parent is a proper ground
for transfer of custody to the formerly noncustodial parent.”].)
To accept mother’s argument regarding legal custody,
we would similarly be forced to assume her oppositional posture
toward father and open hostility to the recommendations of
medical and mental health professionals was among the existing
circumstances in 2016 that supported a judicial determination
that granting mother and father joint legal custody would be
in the children’s best interests. (See Burchard, supra, 42 Cal.3d
at p. 534.) No reasonable assessment of the 2016 judgment that
we or the family court could make permits such an assumption.
(See, e.g., McLoren, supra, 202 Cal.App.3d at p. 116 [where
“record contains no evidence the parties currently are ready,
willing, or able to engage in such a cooperative effort,” family
court errs in finding joint legal custody is in child’s best interest].)
the court’s citation to law review articles concerning parental
alienation, the family court based its modification of the physical
custody arrangement on the evidence presented at the hearing
and no miscarriage of justice occurred. (See F.P. v. Monier (2017)
3 Cal.5th 1099, 1108.)
34
On the contrary, the joint legal custody arrangement set forth
in the judgment was unambiguously predicated on the parents’
then-existing ability to “confer” and “consent . . . in making
decisions” regarding the boys’ school enrollment; participation
in extracurricular activities; nonemergency medical, dental, and
orthodontic treatment; participation in mental health therapy;
and out-of-state travel.15 Indeed, the judgment expressly
provided “[t]he failure to obtain mutual consent on these matters
may result in, among other things, the court’s modifying the
order of joint legal custody.” (Italics added.) As Manger’s report
catalogued, mother’s and father’s ability to co-parent the boys
collapsed in the years following entry of the judgment. The
evidence supports the family court’s finding that this collapse
was primarily due to mother’s “need for control, certitude in her
correctness, casual attitude toward facts, and [her] conviction
that anyone who disagrees with her must have an ulterior
motive.”
Mother contends the family court failed to “give due
weight” to the boys’ need for continuity and stability in custody
arrangements and the harm that may result from disrupting
established patterns of care and emotional bonds with the
primary caretaker. (Burgess, supra, 13 Cal.4th at pp. 32–33.)
The argument is one of too many instances in which mother
15 Contrary to mother’s assertions in her appellate briefs and
hearing testimony, the 2016 judgment expressly provided, “The
parties shall not remove the minor children from the State of
California without the prior written consent of the other party
or an order of the court.”
35
has ignored the record when it is unfavorable to her.16 In its
statement of decision, the family court expressly acknowledged
the children’s interest in “stability and continuity in custody
arrangements,” but found “this significant interest is not a reason
to permit one parent to harm the children’s relationship with
the other parent.” As we have already discussed, it is settled that
a custodial parent’s deliberate efforts to frustrate frequent and
continuing contact with the other parent is a “proper ground
for transfer of custody to the formerly noncustodial parent,”
notwithstanding a child’s interest in stability and continuity.
(Wood, supra, 141 Cal.App.3d at p. 682; see Moffat, supra, 27
Cal.3d at p. 652; Catherine D., supra, 220 Cal.App.3d at p. 932;
see also LaMusga, supra, 32 Cal.4th at p. 1085.) Moreover, the
family court expressly considered “other aspects of continuity,”
observing that in father’s physical custody the boys would
“continue to live in the same neighborhood, attend the same
school, be able to continue in extracurricular activities, and be
treated by the same health professionals,” while still having
16 Notwithstanding well-established principles governing
review, mother’s opening brief presents a factual and evidentiary
account that substantially disregards the evidence favorable to
the family court’s order and the reasonable inferences that must
be drawn from that evidence. (See In re Marriage of Fink (1979)
25 Cal.3d 877, 887; Prouty, supra, 16 Cal.2d at p. 193; Pappas
v. Chang (2022) 75 Cal.App.5th 975, 985.) This infraction has
special consequences for mother’s contentions that the evidence
was insufficient to support the family court’s findings regarding
mother creating deadlocks that impeded L.W.’s therapy, her
obstruction of the children’s interest in frequent and continuing
contact with father, and her failure to cooperate with father
regarding out-of-state travel and the children’s religious
upbringing—all of which we “summarily reject.” (Fink, at p. 887.)
36
“frequent and continuing contact” with mother. Contrary to
mother’s bald assertion, the family court’s statement of decision
was far from “ ‘silent’ ” on the effects the change of custody would
have on the children. (Cf. In re Marriage of Williams (2001)
88 Cal.App.4th 808, 813 [record was “silent on the adverse effect”
custody order would “necessarily have from the point of view
of the children” where family court ordered two siblings to move
to Santa Barbara with father and other two siblings to move
to Utah with mother, while “record contain[ed] no psychological
evaluations, no school or medical records and no input from
the children,” and court had received “no evidence concerning
the extent to which the siblings are bonded to one another”].)
The family court reasonably exercised its discretion to modify
custody under the changed circumstance rule.
37
DISPOSITION
The order is affirmed. James Whooley is entitled to his
costs.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
EGERTON, J.
We concur:
LAVIN, Acting P. J.
NGUYEN (KIM), J.
 Judge of the Los Angeles County Superior Court, assigned
by the Chief Justice pursuant to article VI, section 6 of the
California Constitution.
38