Christina L. v. Chauncey B.

Filed 8/14/14; pub. order 9/9/14 (see end of opn.)

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FOUR

CHRISTINA L., Plaintiff and Appellant, A140155 v. CHAUNCEY B., (Solano County Super. Ct. No. FFL083284) Defendant and Respondent.

Christina L. (Mother) appeals an order granting to her and respondent Chauncey B. (Father) joint legal and physical custody of their son, O.L., and daughter, A.L. She contends the trial court improperly modified an earlier custody determination (under which she had sole legal and physical custody of the children) without finding a significant change in circumstances, and that the trial court erroneously failed to consider the effect of a domestic violence restraining order against Father. We shall reverse the order and remand the matter to the trial court for further proceedings. I. BACKGROUND1 The two children were born in 2000 and 2002. It appears that Mother and Father’s

1 Father did not file a respondent’s brief. As a result, we may accept as true the facts stated in Mother’s opening brief. (Smith v. Smith (2012) 208 Cal.App.4th 1074, 1077–1078.) “However, we do not treat the failure to file a respondent’s brief as a ‘default’ (i.e., an admission of error), but examine the record, appellant’s brief, and any oral argument by appellant to see if it supports any claims of error made by the appellant.” (In re Marriage of Riddle (2005) 125 Cal.App.4th 1075, 1078, fn. 1; Cal. Rules of Court, rule 8.220(a)(2).)

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relationship was marred by domestic violence on Father’s part, and by 2004, they were no longer living together. Mother obtained a temporary restraining order against Father in 2004, based on her assertions that he committed abuse, including pulling her hair and squeezing her hand so hard as she held car keys that her hand bled, bending the car keys, and that he grabbed the steering wheel of the car in which she was driving with the children, threw her, punched her, strangled her, and kicked and “stomped” her. Mother obtained another temporary restraining order against Father in 2005, after he pushed and grabbed her and refused to let her see the children after he picked them up from daycare. The court granted another temporary restraining order in 2006, after Father went into Mother’s backyard, watched her through the window, and later told her what he had seen. Also in 2006, Mother was granted sole legal and physical custody of the children; Father was granted visitation at Mother’s discretion. The trial court issued a three-year domestic violence restraining order against Father in 2008 prohibiting him from, inter alia, harassing, striking, threatening, stalking, or contacting Mother. Father was granted two hours of supervised visitation a month. In August 2011, the court entered an order awarding Mother sole legal and physical custody of the children, with supervised visitation for Father. The order acknowledged that a criminal protective order was in effect. The court granted another temporary restraining order in August 2011, based on Mother’s statements that Father kept showing up at her place of work, parked by her car, and confronted her in front of her manager and customers. At a September 2011 hearing, Mother testified that Father had approached her while she was working in a store and told her repeatedly that she needed to answer her phone. Father had also been waiting in his car, parked near hers, when she left work. Mother also testified that father had been physically violent to her in the past. The trial court granted a domestic violence protective order for a period of two years. Father petitioned the court to terminate the restraining order in January 2013, asserting that Mother had visited his home and had spent time with him at holiday events.