N.A. v. L.S. CA3

Filed 12/27/22 N.A. v. L.S. CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THIRD APPELLATE DISTRICT (San Joaquin) ----

N.A., C095047

Plaintiff and Appellant, (Super. Ct. No. STAFLPAT20090009265) v.

L.S.,

Defendant and Respondent;

S.S. et al., Respondents.

Petitioner and appellant N.A. appeals from an order awarding primary physical custody of his son, J., to K.S. and S.S., J.’s maternal grandparents.1 N.A. contends that

1 Pursuant to California Rules of Court, rule 8.90(b)(1)(10), we refer to the parties by their initials.

1

the trial court (1) failed to comply with Family Code2 section 3041, governing an award of custody to a nonparent over the objection of a parent, (2) abused its discretion in finding that an award of primary physical custody to J.’s maternal grandparents was in J.’s best interest, and (3) erred in admitting a recording of a telephone call. We agree with the first contention and therefore do not reach the others. BACKGROUND On December 9, 2014, the trial court issued an order awarding joint custody of J. evenly split between N.A., J.’s father, and K.S. and S.S., the parents of J.’s mother, L.S. The order provided that N.A. would have custody on alternate weekends and weekdays from Wednesday to Friday. The order further provided that its terms and conditions could be changed, as the needs of the child and parents changed, by filing a written request with the trial court. On August 26, 2020, K.S. and S.S. filed a request for an order changing custody. In a supporting declaration, K.S. stated that the current joint custody arrangement called for N.A. and J.’s maternal grandparents to split physical custody of J. during the school week. J. had been attending a charter school in Tracy. J.’s maternal grandparents sought a modification so that J. would continue to attend this school but stay with them for the entire school week, Monday through Friday. On October 14, 2020, N.A. filed his own request for an order awarding primary legal and physical custody of J. to N.A. N.A. sought to change J.’s school to Happy Valley, Oregon, where N.A. owned a home. The trial court set a two-day trial for June 2021. In his trial brief, N.A. stated that he was seeking to modify custody so that J. would reside primarily with N.A. and attend