California Court of Appeal Mar 19, 2014 No. E055783Unpublished
Filed 3/19/14 In re A.H. CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
J.M.,
Plaintiff and Respondent, E055783
v. (Super.Ct.No. TED006074)
L.H., OPINION
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. Bradley O. Snell,
On January 25, 2012, the family court held a hearing concerning Mother’s
request to modify the child custody and visitation orders. At the hearing, Mother
explained, “I still have 50 percent legal custody, and I still have the primary residence.”
Mother said, “So there needs to be a trial here because I’ve been trying to tell the courts
for five years that there is a problem here and something has gone wrong.” The family
court concluded, “The father does have sole physical and legal custody for the child.”
On March 15, 2012, the family court held a hearing to settle a dispute regarding
the rulings at the January 25 hearing. The court said, “What we’re here [for] today is to
decide and determine what was actually ordered by this Court on January 25th.”
Mother again asserted that Father was never given sole legal custody of A.H., so there
needed to be a hearing regarding legal custody. In figuring out the specifics of the order
adopted on January 25, the family court said, “And I’m writing in father shall have
primary custody.” Father’s attorney said, “Okay. Your Honor, if you look at Section
2A, it says ‘The parents shall have joint physical custody. At the last hearing, this Court
indicated ‘I find the father has sole legal and sole physical custody.’ So I would just
request that you put that in the mediation recommendation.”
1 We take judicial notice of the “Findings and Order After Hearing” filed in the Riverside County Superior Court on March 20, 2007, in case No. TED006074. (Evid. Code, § 452, subd. (d).)
2
The court responded, “And that is what the Court had previously ordered.”
Mother asked, “So he just gets full custody and legal custody just based on that? There
was never a hearing for him to have that. It just automatically goes to him?” The court
responded, “That is what the Court has ordered, ma’am.”
DISCUSSION
Mother contends the family court erred by awarding Father full legal custody of
A.H. without conducting an evidentiary hearing. We disagree.
In order to change a legal custody order, there must be “‘a persuasive showing of
changed circumstances affecting the child.’” (In re Marriage of McLoren (1988) 202
Cal.App.3d 108, 112, citing In re Marriage of Carney (1979) 24 Cal.3d 725, 730.) The
family court must also consider the best interests of the child. (Id. at p. 113.) So, the
person advocating for the change in legal custody has “the obligation of producing
evidence and, based on that evidence, of persuading the court not only that
circumstances now warrant[] granting her legal custody but also that the modification
was in the child[’s] best interests. [Citation.]” (Id. at p. 114.) In sum, there needs to be
an evidentiary hearing before a court modifies a legal custody order.
In the instant case, Father was given sole legal custody of A.H. on March 20,
2007. Therefore, when the court ordered Father to have sole legal custody of A.H. at
the January 25, 2012, hearing, the court was not changing or modifying the legal
custody order. The court continued the same order that had been in place since March
2007.
3
Additionally, it appears Mother’s argument at the family court was based upon
the mistaken idea that sole legal custody had never been awarded to Father. Mother was
not asserting changed circumstances required modifying the legal custody order.
Rather, Mother was asserting the court haphazardly changed A.H.’s custody status
without a hearing. Since Mother was not alleging changed circumstances, there was no
need for the family court to conduct an evidentiary hearing. (See In re Marriage of
In sum, since (1) the family court did not change the legal custody order, and
(2) Mother did not raise a changed circumstances argument, there was no need for the
family court to conduct an evidentiary hearing. Accordingly, we conclude the family
court did not err.
After this court took judicial notice of the 2007 Findings and Order After
Hearing, Mother provided supplemental briefing. In the supplemental briefing, Mother
asserts the March 2007 Findings and Order After Hearing was prepared by Father’s
counsel and the legal custody aspect of the document does not accurately reflect the
family court’s 2007 orders, i.e., the reporter’s transcript does not reflect Father was
awarded full legal custody. Mother contends she did not learn about the erroneous 2007
Findings and Order After Hearing until it was read aloud at a 2012 hearing. The
Findings and Order After Hearing bears a March 20, 2007, file stamp from the family
court. Accordingly, if Mother wanted to raise issues relating to the Findings and Order
After Hearing, then she needed to do so in 2007. (See Cal. Rules of Court, rule 8.406(a)
4
[60 days to file a notice of appeal].) In sum, the time for Mother to appeal any alleged
errors in the 2007 order has passed. Therefore, we conclude the family court correctly
elected to not conduct an evidentiary hearing in 2012.
DISPOSITION
The judgment is affirmed. The parties are to bear their own costs on appeal.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
MILLER J.
We concur:
RAMIREZ P. J.
RICHLI J.
5
AI Brief
AI-generated · verify before citing
Holding. The court held that the family court did not err in declining to hold an evidentiary hearing because the 2012 order did not modify the existing 2007 custody order, and the appellant failed to allege changed circumstances.
Issues
Whether the family court erred by failing to conduct an evidentiary hearing before confirming the father's sole legal custody status.
Whether the appellant's challenge to the 2007 custody order was time-barred.
Disposition. Affirmed
Quotations verified verbatim against the opinion
“the court was not changing or modifying the legal custody order. The court continued the same order that had been in place since March 2007.”
“Since Mother was not alleging changed circumstances, there was no need for the family court to conduct an evidentiary hearing.”
“the time for Mother to appeal any alleged errors in the 2007 order has passed.”