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Charisma R. v. Kristina S.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION FIVE


June 26, 2009

CHARISMA R., PLAINTIFF AND APPELLANT,
v.
KRISTINA S., DEFENDANT AND APPELLANT.

Superior Court of Alameda County, No. HF04153838, Wynne S. Carvill and Kevin R. Murphy, Judges (Alameda County Super. Ct. No. HF04153838).

The opinion of the court was delivered by: Simons, Acting P.J.

CERTIFIED FOR PARTIAL PUBLICATION*fn1

Charisma R. (Charisma) and Kristina S. (Kristina) were a same sex couple who began dating in July 1997, moved in together in August 1998, and registered as domestic partners with the State of California in January 2002.*fn2 In December 2001, the couple decided they wanted to have children and Kristina would be the first to try to become pregnant. Following several months of effort, Kristina became pregnant by artificial insemination and gave birth to Amalia in April 2003. In July 2003, Kristina moved out of the home she shared with Charisma, taking Amalia with her. Kristina appeals from the trial court's orders declaring Charisma a presumed parent of Amalia and establishing a schedule for reunification of Charisma and Amalia. Among other things, we reject Kristina's contentions that Charisma did not parent Amalia for a sufficient period of time to be declared a presumed parent under Family Code section 7611, subd. (d) (hereafter section 7611(d)),*fn3 and we hold Kristina has not shown the trial court's orders violate her constitutional rights to equal protection and due process. In a cross-appeal, Charisma contends the court misunderstood the scope of its authority with respect to allocation of her travel expenses for the reunification process. The cross-appeal has merit. We affirm the trial court's orders except as to allocation of the travel expenses, which we reverse and remand to provide the court an opportunity to exercise its discretion.*fn4

BACKGROUND

After deciding they wanted children, Charisma and Kristina contacted a sperm bank, jointly filled out the required paperwork to obtain sperm from an anonymous donor, and pursued their goal of Kristina becoming pregnant through in-home artificial insemination. Charisma assisted Kristina in the insemination process. The couple kept a joint journal regarding the process, in which Kristina was referred to as "mommy" and Charisma was referred to as "momma."

After five months of attempts at in-home insemination, Charisma ordered two additional vials of sperm in early July 2002. On the evening of July 8, Charisma used one vial to inseminate Kristina at home; the next morning Kristina took the second vial to a doctor who inseminated her through intrauterine insemination. One of these two inseminations resulted in Kristina becoming pregnant.

Amalia was born in April 2003. Charisma was present for the birth and cut the umbilical cord. On the birth certificate, signed by Kristina, Amalia was given a hyphenated last name that was a combination of Charisma's and Kristina's last names. The couple brought Amalia into their home and shared parenting responsibilities for the first six weeks of her life. At that point, Kristina returned to work and Charisma cared for Amalia full-time during the day; she also provided care at night.

In July 2003, approximately seven weeks after Kristina returned to work, she moved out of the home she shared with Charisma, taking Amalia with her. Since then, and before the trial court ordered reunification in 2008, Kristina allowed Charisma to see Amalia on only two occasions in the summer of 2003. In the summer of 2005, Kristina moved to Texas with Amalia.*fn5

In May 2004, Charisma filed a petition to establish a parental relationship with Amalia. The trial court denied the petition, concluding that Charisma lacked standing to bring the action under the Uniform Parentage Act (UPA) (§ 7600 et seq.). (Charisma R. v. Kristina S. (2006) 140 Cal.App.4th 301, 303 (Charisma I).) Charisma appealed, and this court reversed in June 2006, concluding that Charisma had standing to establish parentage under the UPA despite the fact that she lacked a biological relationship to Amalia. (Charisma I, at pp. 303-304, citing Elisa B. v. Superior Court (2005) 37 Cal.4th 108, 119-120 (Elisa B.). Because the trial court did not have the benefit of the Elisa B. decision at the time of its initial ruling, this court remanded the matter to the trial court for a determination, in light of Elisa B., whether Charisma is a presumed parent under section 7611(d) and, if so, whether this is an appropriate case in which to rebut the parentage presumption. (Charisma I, at pp. 304, 307.)

On remand, the trial court found that Charisma is a presumed parent and that the presumption had not been rebutted. The court appointed custody evaluators who reported that adoption of a reunification plan would be appropriate. In May 2008, the court adopted a plan for gradual reunification of Charisma and Amalia through joint therapy sessions in Texas with a court-appointed therapist.

DISCUSSION

I. Substantial Evidence Supports the Trial Court's Finding that the Section 7611(d) Parentage Presumption is Applicable

Under the UPA, an "interested person" may bring an action to determine the existence or nonexistence of a mother and child relationship. (§ 7650, subd. (a).) Section 7611(d) provides that a man is presumed to be the father of a child if he "receives the child into his home and openly holds out the child as his natural child." As explained in Adoption of Michael H. (1995) 10 Cal.4th 1043, 1050-1051, "An unwed father's rights and duties . . . substantially depend on whether he is a "presumed father' within the meaning of section 7611. [Citations.] . . . [T]o become a presumed father, a man who has neither married nor attempted to marry his child's biological mother must not only openly and publicly admit paternity, but must also physically bring the child into his home." (See also In re Spencer W. (1996) 48 Cal.App.4th 1647, 1652 (Spencer W.).) In Elisa B., supra, 37 Cal.4th at pages 119-120, 125-126, the court held that a biological mother's former same sex partner may be declared a presumed parent under a gender-neutral application of section 7611(d). (See also Charisma I, supra, 140 Cal.App.4th at p. 304.)

In Elisa B., the El Dorado County District

Attorney filed a complaint to establish that Elisa was the parent of twins born to her former partner, Emily, and to order Elisa to pay child support. Elisa denied she was the children's parent. (Elisa B., supra, 37 Cal.4th at p. 113.) It was undisputed that Elisa participated in the artificial insemination of Emily with the understanding that they would raise the resulting child or children as coparents, and they did in fact coparent the children in a common family home for over one and one-half years. (Id. at pp. 114-115, 122.) The court pointed out that section 7650, subdivision (a), states that provisions applicable to determining a father and child relationship shall be used to determine a mother and child relationship " "insofar as practicable,' " and concluded Elisa could be considered a presumed parent under section 7611(d). (Elisa B., at pp. 119-120.) The case was not "an appropriate action" to rebut the presumption of parentage with evidence that there was no biological relationship between Elisa and the twins,*fn6 because to allow the presumption to be so rebutted would be contrary to the public policy favoring a child having two parents to provide emotional and financial support. (Id. at pp. 122-125; see also Charisma I, supra, 140 Cal.App.4th at pp. 304-307.)

On remand from Charisma I, supra, 140 Cal.App.4th 301, Charisma bore the burden of proving she is a presumed parent under section 7611(d) by a preponderance of the evidence. (Spencer W., supra, 48 Cal.App.4th at pp. 1652-1653; Glen C. v. Superior Court (2000) 78 Cal.App.4th 570, 585-586.) On appeal, we review the trial court's determination under the substantial evidence standard: "[W]e are bound to uphold [the trial court's judgment] so long as the record is free from prejudicial error and the judgment is supported by evidence which is "substantial,' that is, of " "ponderable legal significance," ' " "reasonable in nature, credible, and of solid value . . . ." ' [Citations.]" (Howard v. Owens Corning (1999) 72 Cal.App.4th 621, 631.) "Under that standard, we must consider all of the evidence in the light most favorable to the prevailing party, giving it the benefit of every reasonable inference, and resolving conflicts in support of the judgment. [Citations.] [¶] It is not our task to weigh conflicts and disputes in the evidence; that is the province of the trier of fact. Our authority begins and ends with a determination as to whether, on the entire record, there is any substantial evidence, contradicted or uncontradicted, in support of the judgment. Even in cases where the evidence is undisputed or uncontradicted, if two or more different inferences can reasonably be drawn from the evidence this court is without power to substitute its own inferences or deductions for those of the trier of fact, which must resolve such conflicting inferences in the absence of a rule of law specifying the inference to be drawn. We must accept as true all evidence and all reasonable inferences from the evidence tending to establish the correctness of the trial court's findings and decision, resolving every conflict in favor of the judgment. [Citations.]" (Id., at pp. 630-631.)

A. Kristina's Evidentiary Objections

Kristina objected below to aspects of declarations filed by Charisma, on the grounds of lack of personal knowledge and lack of foundation. However, the trial court never ruled on her objections. Where a party fails to obtain a ruling from the trial court, the objections generally are not preserved on appeal. (Bussard v. Minimed, Inc. (2003) 105 Cal.App.4th 798, 801, fn. 1.) Appellate courts sometimes decline to apply that rule where the party unsuccessfully pressed for a ruling below, but Kristina failed to do so in this case.*fn7 (See Siam v. Kizilbash (2005) 130 Cal.App.4th 1563, 1580 [party orally requested a ruling and obtained "a blanket ruling of sorts"]; City of Long Beach v. Farmers & Merchants Bank (2000) 81 Cal.App.4th 780, 785 [party made two oral requests for rulings].) Citing Thomas v. Quintero (2005) 126 Cal.App.4th 635, Kristina argues this court may consider her objections even though she failed to obtain a ruling below. However, that case held only that reviewing courts may consider evidentiary objections for the first time on appeal where the lower court "disposed of the motion on a legal ground not requiring a consideration of the evidence presented." (Id. at p. 656.) The court acknowledged the general rule that a party forfeits objections to evidence where the party fails to obtain a ruling from the trial court. (Id. at p. 655.) Because the trial court actually and necessarily considered the evidence presented, Kristina's objections have been forfeited.

In any event, the specific evidentiary objections asserted on appeal are either without merit or relate to evidence unnecessary to support the trial court's judgment. Kristina argues there is no basis to conclude she authored or authorized a birth announcement e-mail, but the announcement is relevant to show that Charisma held out Amalia as her child, regardless of Kristina's participation or knowledge. Kristina argues there was inadequate foundation to admit various e-mails and postings from internet chat rooms, mostly related to the efforts to conceive Amalia, and that various declarants made assertions about care Charisma provided for Amalia without personal knowledge. However, as discussed below, the record provides overwhelming support for the trial court's findings that Charisma actively participated in Amalia's conception and cared for Amalia following her birth, including averments in Charisma's declaration and Kristina's own admissions. Accordingly, Kristina was not prejudiced by any error in admitting the challenged evidence below.

B. Charisma's Claim to Presumed Parent Status Is Not Defeated by the Limited Duration of her Parenting of Amalia

Kristina argues that Charisma did not parent Amalia for a sufficient period of time to satisfy section 7611(d).

Whether section 7611(d) requires Charisma to show she parented Amalia for an extended duration is a question of statutory interpretation we decide de novo. (California Teachers Assn. v. San Diego Community College Dist. (1981) 28 Cal.3d 692, 699.) The primary objective in statutory interpretation is to determine and give effect to the underlying legislative intent. (Code Civ. Proc., § 1859.) We begin by examining the statutory language, giving the words their usual, ordinary meanings and, if possible, giving each word and phrase significance. (Curle v. Superior Court (2001) 24 Cal.4th 1057, 1063; Young v. Gannon (2002) 97 Cal.App.4th 209, 223.) "If the terms of the statute are unambiguous, we presume the lawmakers meant what they said, and the plain meaning of the language governs." (Estate of Griswold (2001) 25 Cal.4th 904, 911.) Section 7611(d), read gender-neutrally (Charisma I, supra, 140 Cal.App.4th at p. 304), provides that a man or woman is presumed to be a natural parent of a child if "[he or she] receives the child into [his or her] home and openly holds out the child as [his or her] natural child." On its face, the statute contains no durational requirement; it does not, for example, state that the child must be received or held out "for a significant period of time."

Without deciding the issue before this court, prior decisions have addressed the durational issue in defining the term "receives." The use of "receives" in section 7611(d) has its origins in Civil Code former section 230, which addressed the adoption of an illegitimate child by the father. That section provided: "The father of an illegitimate child, by publicly acknowledging it as his own, receiving it as such, with the consent of his wife, if he is married, into his family, and otherwise treating it as if it were a legitimate child, thereby adopts it as such; and such child is thereupon deemed for all purposes legitimate from the time of its birth." (Civ. Code, former § 230, repealed by Stats. 1975, ch. 1244, § 8, p. 3196.) When the Legislature enacted the UPA in 1975, it replaced the concept of legitimacy with the concept of parentage and replaced Civil Code former section 230 with the language now in section 7611(d). (Adoption of Kelsey S. (1992) 1 Cal.4th 816, 827-828 (Kelsey S.).)*fn8

The court in Kelsey S. addressed the "receiving" requirement, both pre-UPA and post-UPA. In that case, the alleged father*fn9 did not physically receive the child into his home because the birth mother sought to put the child up for adoption. (Kelsey S., supra, 1 Cal.4th at p. 825.) The court considered the alleged father's argument that "constructive receipt [of the child] is sufficient when the mother prevents actual receipt." (Id. at p. 828.) The court rejected that argument as a matter of statutory interpretation, because the plain language of the statute contemplates "actual" receipt rather than "attempted receipt or constructive receipt." (Id. at pp. 826, 830.) In the course of its analysis, the court discussed a pre-UPA case, In re Richard M. (1975) 14 Cal.3d 783, which suggested that constructive receipt might be sufficient. (Kelsey S., at pp. 827-828.) Kelsey S. declined to adopt that suggestion, pointing out that in Richard M. the father "had in fact received the child into his home, albeit briefly. The court therefore was not faced with the question before us, i.e., whether constructive receipt is sufficient when the mother prevents actual receipt." (Kelsey S., at p. 828.)

Kelsey S. also pointed out that under the pre-UPA scheme there was a policy of liberal construction in favor of finding legitimation, so that children did not end up without a legal father. (Kelsey S., supra, 1 Cal.4th at pp. 828-829.) The court stated there was no need to "strain[]" to find a father through the doctrine of constructive receipt because in the case before it there were two competing fathers, so the child would end up with a legal father in any event. (Ibid.) Although the court declined to liberally construe the requirement in the case before it,*fn10 the court did not suggest that actual receipt of a child for a significant duration is required. To the contrary, the court discussed Michael U. v. Jamie B. (1985) 39 Cal.3d 787, in which the biological father sought temporary custody of the child in order to establish his presumed parentage claim. The court favorably quoted the decision as follows: " "Michael is a natural father, not a presumed father, because he has not yet received Eric [the child] into his home. [Citation.] If, however, he actually acquired physical custody, he could receive Eric into his home and thereby acquire the status of a presumed father. [Citations.] . . . Thus the present controversy, although nominally about the temporary custody of Eric pending the adoption proceeding, will probably determine the fate of the proposed adoption.' " (Kelsey S., at p. 829, quoting Michael U., at p. 791; see also Kelsey S., at p. 842 [stating that the superior court had "the authority to grant petitioner custody of his child so that he could qualify as a presumed father"].) The clear implication is that the "receiving" requirement is a necessary formality, but not one that requires "receipt" for any particular duration.

Moreover, as previously mentioned, the use of the term "receives" in section 7611(d) originates in the use of the term "receiving" in Civil Code former section 230. As Kelsey S. explained, under the pre-UPA cases it was sufficient if the alleged father "briefly" received the child into the home. (Kelsey S., supra, 1 Cal.4th at pp. 827-828.) We presume the Legislature was aware of the judicial interpretations of the receiving element at the time it adopted the UPA. (People v. Harrison (1989) 48 Cal.3d 321, 329 [the Legislature "is deemed to be aware of statutes and judicial decisions already in existence, and to have enacted or amended a statute in light thereof. [Citation.] Where a statute is framed in language of an earlier enactment on the same or an analogous subject, and that enactment has been judicially construed, the Legislature is presumed to have adopted that construction. [Citation.]"].) If the Legislature had intended to require an alleged parent to live with a child for an extended period of time, it would likely have used a different term than "receives" or added an express durational requirement. But Kristina presents no analysis of the statutory language or legislative history supporting a conclusion that the Legislature intended so fundamental a change.

None of the cases Kristina cites suggests section 7611(d) imposes a durational requirement to obtain presumed parent status. In Brian C. v. Ginger K. (2000) 77 Cal.App.4th 1198, 1219-1221, two men had competing claims for presumed father status; the court referred to the duration of one man's parenting, but did not suggest there is a durational requirement. County of Los Angeles v. Sheldon P. (2002) 102 Cal.App.4th 1337, 1344-1345, also referred to the duration of one man's parenting in comparing two alleged fathers. The court in Miller v. Miller (1998) 64 Cal.App.4th 111 did not emphasize the duration of parenting in applying section 7611(d). In that case, a man was denied presumed parent status because he had not clearly held the child out as his own and because there was a conclusive presumption that the mother's former husband was the father. (Miller, at pp. 118-119.) In Spencer W., supra, 48 Cal.App.4th 1647, the man seeking presumed father status was "equivocal in asserting his parental relationship" and left the home once the mother stopped supporting him. (Id. at pp. 1651, 1653-1654.) In In re T.R. (2005) 132 Cal.App.4th 1202, the man seeking presumed father status was found to have molested the child. (Id. at pp. 1211-1212.) The court in In re Nicholas H. (2002) 28 Cal.4th 56, 70, addressed rebuttal of the parentage presumption, not the requirements of section 7611(d).

In re A.A. (2003) 114 Cal.App.4th 771, 786, does characterize cohabitation for a period of "one to three months" as "exceedingly small," but it does not suggest that section 7611(d) contains a durational requirement. Instead, the court reversed the trial court's presumed parenthood finding because the evidence supporting the finding was "secondhand," the minor did not live with or visit the alleged father in the man's own home, and there was little evidence the man held himself out as the minor's father. (In re A.A., at pp. 786-787.) Moreover, In re A.A. ultimately adopted an expansive interpretation of the "receives" requirement, in holding the trial court erred in refusing to find a second man a presumed father, even though the minor never actually lived with the man. The court reasoned: "The record is clear that the minor never actually lived with R.B. However, when a mother and father of a child are not inclined to live with each other, their child often lives with only one of the parents and visits the other. . . . Although the minor was not received into R.B.'s home to live with him on a full-time basis, he was involved with the minor from the very beginning, with Mother's blessing. He took this interest in the minor even though he was not convinced she is his biological daughter. Thus, when his own son, R., came to visit him, so also did the minor child, whom the record shows was bonded with R." (Id. at p. 784.)

Lacking authority supporting her interpretation, Kristina essentially asks us to "judicially rewrite the statute" to impose a durational requirement that is absent from the plain language of section 7611(d); that we cannot do. (Kelsey S., supra, 1 Cal.4th at p. 830.) We conclude that receipt of the child into the home must be sufficiently unambiguous as to constitute a clear declaration regarding the nature of the relationship, but it need not continue for any specific duration. This conclusion is consistent with the public policy favoring a child having two parents to provide emotional and financial support, which prior courts have emphasized in interpreting the UPA. (Elisa B., supra, 37 Cal.4th at p. 123; see also Librers v. Black (2005) 129 Cal.App.4th 114, 123 ["whenever possible, a child should have the benefit of two parents to support and nurture him or her"].) Although cohabitation for an extended duration may strengthen a claim for presumed parent status, section 7611(d) does not require that cohabitation or coparenting continue for any particular period of time.*fn11

C. Substantial Evidence Supports the Trial Court's Findings that Charisma Received Amalia into her Home and Openly Held Out Amalia as her Natural Child

In addition to arguing that Charisma did not parent Amelia for a sufficient duration, Kristina more generally challenges the sufficiency of the evidence to support the trial court's findings that Charisma received Amalia into her home and openly held out Amalia as her natural child, as required to establish presumed parentage under section 7611(d).

As relevant to the "receives" element, after Amalia's birth in April 2003, Charisma and Kristina brought Amalia into their apartment and shared parenting responsibilities for the first six weeks of her life. For the next seven weeks, Charisma cared for Amalia full-time during the day, and also provided care at night. Kristina seems to suggest that the apartment was not Charisma's home because there is no evidence both of their names were on the lease. However, she presents no authority or reasoned argument that Charisma needed to present such proof to satisfy section 7611(d). Substantial evidence shows the apartment was Charisma's home: Kristina in her declaration averred they shared an apartment for almost five years and the apartment was "our common residence;" Charisma referred to the apartment as their "shared" home and averred they obtained renter's insurance in both their names; and the apartment manager averred they lived there together. Kristina disputes the amount and quality of Charisma's care of Amalia and contributions to the household. But, as the trial court reasoned, "there may be disagreements or discrepancies between the parties as to how much care was given by [Charisma] or the quality of that care. The court does not particularly find that to be relevant in terms of whether or not she, in fact, received the child into her home. It is clear to the court from the evidence that was submitted that [Charisma] did care for the child after the child was born."*fn12

The following evidence showed that Charisma openly held Amalia out as her natural child:*fn13 Charisma was present during Amalia's birth and cut the umbilical cord; she gave Amalia a hyphenated last name including her name on Amalia's birth certificate; she brought Amalia into her and Kristina's shared home; she held herself out as Amalia's mother in a birth announcement, a baby shower, a gift registry, an online message board for women trying to conceive, and communications with various people, including the nurse at a "well baby" visit, a visiting former co-worker, and strangers in the street; she shared in the care of Amalia until Kristina went back to work; and she cared for Amalia after Kristina returned to work until Kristina moved out with Amalia.

Clearly, Kristina is mistaken in asserting the evidence showed only that Charisma "told a few people that [Amalia] was "her baby.' " The evidence showed that Charisma openly and publicly asserted her parentage in various forums and to numerous people. Kristina points to no evidence demonstrating any equivocating on the part of Charisma regarding her parentage (cf. Spencer W., supra, 48 Cal.App.4th at pp. 1651, 1653-1654), and she presents no authority or reasoned argument that any particular number or sorts of public acknowledgements are necessary to satisfy section 7611(d).

Instead of discussing the particular facts showing that Charisma received Amalia into her home and held her out as her natural child, Kristina argues broadly that Charisma failed to present sufficient evidence of a parental relationship to qualify as a presumed parent under section 7611(d). She cites In re T.R., where the court stated: "In determining whether a man has "receiv[ed] a child into his home and openly h[eld] out the child' as his own [citation], courts have looked to such factors as whether the man actively helped the mother in prenatal care; whether he paid pregnancy and birth expenses commensurate with his ability to do so; whether he promptly took legal action to obtain custody of the child; whether he sought to have his name placed on the birth certificate; whether and how long he cared for the child; whether there is unequivocal evidence that he had acknowledged the child; the number of people to whom he had acknowledged the child; whether he provided for the child after it no longer resided with him; whether, if the child needed public benefits, he had pursued completion of the requisite paperwork; and whether his care was merely incidental. [Citations.]" (In re T.R., supra, 132 Cal.App.4th at p. 1211.) In re T.R. does not require an alleged parent to show each and every one of these factors exists. Instead, it lists the types of factors trial courts may consider. In this case, the trial court considered the appropriate factors in determining that Charisma is a presumed parent and there was ample evidence of a parental relationship between Charisma and Amalia to support the trial court's determination.*fn14

Kristina's attempt to analogize this case to Spencer W. fails. In that case, the alleged father, Leonard, lived with the mother at the time of the birth but not at the time of conception. (Spencer W., supra, 48 Cal.App.4th at p. 1650.) It was unclear who the biological father was because the mother was a prostitute at the time of conception. (Ibid.) Leonard was present at the child's birth, and lived with the child and the mother for two years. (Ibid.) During that time, Leonard told some people he was the father, the child called him "daddy," and Leonard cared for and disciplined the child. (Id. at pp. 1650-1651.) However, Leonard did not have his name placed on the birth certificate and he "was equivocal in asserting his parental relationship" while they lived together. (Ibid.) In particular, when a social worker visited the apartment, Leonard specifically told the worker he was not the child's father. (Id. at p. 1651.) He cared for the child for two months while the mother was incarcerated, but when the mother stopped receiving welfare payments during another period of incarceration, Leonard separated from her and left the child with a friend of the mother. (Ibid.) The Court of Appeal affirmed the trial court's rejection of Leonard's presumed parentage claim, concluding that "[t]he evidence permitted the conclusion that Leonard did not receive the child into his home, but instead that mother permitted Leonard to reside in her home, and that Leonard's residence with [the child] was not demonstrative of Leonard's commitment to the child but reflected that Leonard acted out of personal convenience and self-interest." (Id. at p. 1653.) The court also concluded that "a trier of fact could conclude Leonard's actions, as a whole, were not sufficient to satisfy the requirement that Leonard "openly and publicly admit paternity.' [Citation.]" (Id. at pp. 1653-1654.) The present case is unlike Spencer W. The record overwhelmingly supports the trial court's findings that Charisma welcomed Amalia into her shared home with Kristina and consistently acknowledged her parental relationship and responsibilities to the child.

We also reject Kristina's attempt to analogize this case to In re Sarah C. (1992) 8 Cal.App.4th 964 (Sarah C.). There, the child was the product of an extramarital affair between the mother and the alleged father, Paul. (Id. at p. 969.) Although Paul told "a few friends" and family that he was the biological father, he did not assist the mother during the pregnancy, did not seek to have his name listed on the birth certificate (which listed the mother's husband's name), and did not inform the mother's husband of the child's biological paternity. (Id. at pp. 972-973.) The Court of Appeal concluded the evidence supported the trial court's finding that Paul was not a presumed father. (Id. at p. 973.) In contrast, the evidence in this case uniformly showed Charisma held Amalia out as her natural child at every appropriate opportunity.

It is important to note that in the two cases Kristina principally relies upon, Spencer W. and Sarah C., the Courts of Appeal were reviewing trial court decisions rejecting presumed parentage claims. (Spencer W., supra, 48 Cal.App.4th at pp. 1653-1654; Sarah C., supra, 8 Cal.App.4th at p. 973.) Accordingly, the reviewing courts were obliged to make all inferences in favor of the trial court findings that the alleged fathers had not established their presumed parentage claims. In this case, we are obliged to make all factual inferences in favor of the trial court's finding that Charisma made the showing required by section 7611(d). That finding is amply supported by the evidence in the record.*fn15

II. The Trial Court Did Not Abuse Its Discretion in Concluding There Is no Basis to Rebut the Parentage Presumption in this Case

Section 7612, subdivision (a), provides that "a presumption under Section 7611 is a rebuttable presumption affecting the burden of proof and may be rebutted in an appropriate action only by clear and convincing evidence." Thus, Kristina bore the burden below of rebutting the presumption that Charisma was Amalia's parent with clear and convincing evidence. (Comino v. Kelley (1994) 25 Cal.App.4th 678, 685.) The determination of whether the presumption has been rebutted is within the discretion of the trial court. (Elisa B., supra, 37 Cal.4th at p. 122.)

In an appropriate case, clear and convincing evidence that an alleged parent has no biological tie to the child may defeat presumed parent status. (See Elisa B., supra, 37 Cal.4th at p. 120.) In Elisa B., the court concluded the case was "not "an appropriate action' in which to rebut the presumption of presumed parenthood with proof that Elisa is not the twins' biological parent." (Id. at p. 122.) The court stated it was unnecessary to remand to permit the superior court to exercise its discretion because it would have been an abuse of discretion to conclude the presumption could be rebutted because Elisa "actively participated in causing the children to be conceived with the understanding that she would raise the children as her own together with the birth mother, she voluntarily accepted the rights and obligations of parenthood after the children were born, and there are no competing claims to her being the children's second parent." (Id. at p. 122; see also id. at p. 125.)

In Charisma I, this court instructed the trial court that, if it found Charisma is a presumed parent of Amalia under section 7611(d), it should then determine whether the facts identified in Elisa B. on the rebuttal issue are true. We explained: "If the trial court finds that Charisma is a presumed parent and finds true all of the facts outlined in Elisa B. on the rebuttal issue, those findings support a conclusion that this is not an appropriate case to allow rebuttal of the presumption of Charisma's parenthood; in other words, the evidence that she has no biological tie to Amalia does not rebut the presumption. Absent other facts justifying rebuttal of the presumption [citation], any other conclusion would be an abuse of discretion. [Citation.]" (Charisma I, supra, 140 Cal.App.4th at p. 307.)*fn16

A. Substantial Evidence Supports the Trial Court's Determination that the Elisa B. Factors Are Present in this Case

The trial court made findings on the Elisa B. factors to support its conclusion that Kristina had failed to rebut the presumption of parenthood under section 7611(d).*fn17

Substantial evidence supports the trial court's finding that Charisma actively participated in Amalia's conception with the understanding she would parent Amalia with Kristina. Charisma and Kristina were in a romantic relationship and registered domestic partners in California at the time Amalia was conceived. After the couple decided to have children, they contacted a sperm bank and jointly filled out the required paperwork to obtain sperm from an anonymous donor. The sperm bank's "Patient Registration Form" lists Kristina as the patient and Charisma as her "Spouse[]/Partner[]," and indicates they are registered domestic partners. The couple provided Charisma's credit card information for billing purposes and both women signed the form. Both Charisma and Kristina signed a consent form for therapeutic insemination and a release form for home insemination. Charisma completed the sperm bank's "Donor Selection Form" listing donor choices and both women's physical characteristics. Charisma placed two of the orders for sperm (there were three orders in total), one of which included the sperm that impregnated Kristina.

For five months, Charisma actively participated in Kristina's in-home artificial insemination efforts.*fn18 The couple kept a joint journal regarding the process, in which Kristina was referred to as "mommy" and Charisma was referred to as "momma." In the journal both women describe their excitement at the prospect of parenthood. The journal also contains statements such as "We decided to try to inseminate today." In another entry, Charisma describes in detail her effort to learn how to perform the insemination and how she "blundered" the first attempt. After Kristina became pregnant, her mother addressed e-mails to Charisma and Kristina to "the mommies." Charisma communicated with her co-worker, a co-worker of Kristina's, an online community of other women trying to conceive, and others regarding her and Kristina's efforts to have a child.

Kristina disregards this overwhelming body of evidence in asserting that "the trial court substantially relied upon statements in emails made and postings from online chat rooms" without evidence of Kristina's authorship. And, despite Kristina's protestations, even these postings are relevant to Charisma's understanding and intentions. Even absent these postings, substantial evidence plainly supports the trial court's finding. As in Elisa B., supra, 37 Cal.4th at page 123, Charisma "actively assisted [Kristina] in becoming pregnant with the expressed intention of enjoying the rights and accepting the responsibilities of parenting the resulting" child.

Substantial evidence also supports the trial court's finding that Charisma voluntarily accepted the rights and obligations of parenthood after Amalia was born: She was present during Amalia's birth and cut the umbilical cord; she gave Amalia a hyphenated last name including her name; she brought Amalia into her home; she held herself out as Amalia's mother to various people in various forums; she shared in the care of Amalia until Kristina went back to work; and she cared for Amalia after Kristina returned to work until Kristina moved out with Amalia. Kristina concedes that Charisma "watched" Amalia after she returned to work, but she disputes the amount and quality of Charisma's care and contributions to the household. We must accept the trial court's resolution of this factual dispute. (Howard v. Owens Corning, supra, 72 Cal.App.4th at pp. 630-631.)

Again, an underlying theme of Kristina's argument is that the trial court should have found the parentage presumption rebutted because Charisma did not parent Amalia for a long period of time. While the duration of parenting could be relevant to the rebuttal analysis, there is no specific durational requirement. Kristina points out that in Elisa B., supra, 37 Cal.4th at pages 114-115, 123, the alleged parent played a substantial parental role for years. However, the court did not suggest it would be appropriate to rebut the parentage presumption solely because there is no lengthy period of parenting. In fact, the court's holding omits any reference to a durational requirement. Of the three factors outlined by the court, only the "voluntarily accepted the rights and obligations of parenthood" factor (id. at p. 125) is one in which duration could arguably be of any relevance. But, despite the fact that Elisa had parented the children for years, the Supreme Court elected not to describe the factor with language including a temporal dimension, such as "for a significant period of time."*fn19 Moreover, it is undisputed that it was Kristina's unilateral conduct in moving out with Amalia that prevented Charisma from parenting Amalia for a longer period of time. Accordingly, this is not a case where the short duration of parenting reflects negatively on an alleged parent's commitment to establishing a parental relationship. The relatively short period that Charisma parented Amalia is not alone a basis to rebut the parentage presumption.*fn20

The trial court's decision is well-supported by the evidence.

B. The Trial Court Did Not Abuse Its Discretion in Concluding that no Other Facts Justified Rebuttal of the Parentage Presumption

In Charisma I, supra, 140 Cal.App.4th at page 307, this court indicated that rebuttal of the parentage presumption would not be an abuse of discretion, even if all the Elisa B. factors are present, if other facts justified rebuttal of the presumption. We cited In re T.R., supra, 132 Cal.App.4th at page 1212, in which the court concluded that conduct "antithetical" to the parental role can justify rebuttal of the presumption (id. at p. 1211).

Kristina argues the trial court erred in failing to find the presumption rebutted based on a single photograph of Amalia that Charisma posted online. The claimed objectionable photograph is one of dozens included in an online photo album. It depicts a newborn, naked Amalia from the neck down, apparently in the hospital because of the presence of monitors and cords. The baby's genitalia are visible, although the photograph does not emphasize the genitalia. Kristina also refers in passing to two other photographs posted online, which depict her breastfeeding Amalia; one of Kristina's breasts is partially visible in both photographs. The circumstances of the online posting of the photographs are unclear. In a declaration, Charisma averred that she and Kristina jointly agreed to create an online photo album after the birth of Amalia, and that album was "the only place where we kept on-line photos of Amalia." The link to the album was shared only with family and friends, although others could find it if they searched by name.*fn21 Kristina averred that she was upset when she learned that the photographs were online and that she contacted the Newark Police Department, which requested that Charisma remove the pictures from the internet. Charisma complied. The breastfeeding photographs are not graphic and the photograph of Amalia is not child pornography.*fn22

At most Charisma demonstrated an isolated instance of poor judgment in including those photographs in a large group of appropriate photographs posted online.*fn23

The evidence presented by Kristina is not comparable to the evidence justifying rebuttal of the parentage presumption in In re T.R., supra, 132 Cal.App.4th 1202. There, the alleged father, Marvin, was a registered sex offender who had been convicted of three counts of lewd conduct with 10-year-old and 13-year-old girls and sentenced to six years in prison. (Id. at pp. 1206-1207.) The minor was 10 years old and declared a dependent of the juvenile court based on an allegation that she was at substantial risk of being sexually abused due to Marvin's history of molesting other children and reports of his inappropriate conduct with the minor. (Ibid.)*fn24 The court concluded that, although the parentage presumption may have arisen based on Marvin's acting in a paternal role since the minor was three, the juvenile court did not err in concluding the presumption was rebutted by his conduct. (Id. at p. 1212.) The court emphasized that Marvin had deceived the minor's mother regarding his criminal convictions and the juvenile court had found true the allegations of molestation by clear and convincing evidence. (Id. at p. 1211.) "Marvin's conduct was antithetical to a parent's role and was a blatant violation of parental responsibilities. It more than counterbalanced the factors favoring Marvin's presumed father status." (Ibid.) Nothing comparable was presented to the trial court in this case. Kristina has not shown the court erred in rejecting her suggestion to rebut the parentage presumption based on Charisma's alleged unsuitability as a parent.

Finally, Kristina contends extending presumed parent status to Charisma is not consistent with "the purposes of the parentage presumption." Kristina principally relies on Elisa B., supra, 37 Cal.4th 108, where El Dorado County was seeking to force the alleged parent to provide financial support to the children. Kristina interprets Elisa B. too narrowly; the case does not suggest that lack of a present need for financial support justifies rebuttal of the presumption. The presumption furthers the general public policy favoring a child having "two parents, rather than one, as a source of both emotional and financial support." (Id. at p. 123; see also Kristine H. v. Lisa R., supra, 37 Cal.4th at p. 166 [referring to "the public policy favoring that a child have two parents rather than one"]; Kristine M. v. David P. (2006) 135 Cal.App.4th 783, 788 ["[p]ublic policy and common sense endorse, where possible, creation of a legal parent and child relationship, with the attendant responsibilities and privileges," fn. omitted]; Librers v. Black, supra, 129 Cal.App.4th at p. 123 ["whenever possible, a child should have the benefit of two parents to support and nurture him or her"].) It may be especially important to apply the presumption where the public would otherwise bear the support obligation (Elisa B., at p. 123), but that is not a necessary condition to application of the presumption. It is reasonable to conclude Amalia will benefit, either now or in the future, from the additional financial and emotional support a second parent can provide, even if she would not otherwise become a public burden.*fn25

Kristina also contends it is inconsistent with the purposes of the presumption to extend presumed parent status to an individual who has not "demonstrated a commitment to creating a substantial familial relationship with a child." Assuming that to be true, the trial court found Charisma did demonstrate such commitment, and the court's findings are supported by substantial evidence. Kristina's additional argument that an extended period of parenting is necessary to demonstrate that commitment is not supported by section 7611(d) or the case law, as explained previously.

III. Kristina's Constitutional Claims Are Without Merit A. This Court Will Exercise Its Discretion to Decide the Constitutional Claims

In Charisma I, supra, 140 Cal.App.4th at page 308, because this court remanded for further factual findings, we declined to address Kristina's claim "that it would violate her federal constitutional rights were we to conclude that Charisma is Amalia's parent under the [UPA]." Although Kristina raised those claims in the previous appeal, she failed to raise them on remand. Charisma contends the constitutional claims have been forfeited. (See, e.g., Newton v. Clemons (2003) 110 Cal.App.4th 1, 11 [" "[g]enerally, issues raised for the first time on appeal which were not litigated in the trial court are waived,' " fn. omitted].) On the other hand, "California courts have held that constitutional issues can be raised for the first time on appeal in various circumstances.

[Citation.]" (Bonner v. City of Santa Ana (1996) 45 Cal.App.4th 1465, 1476 (Bonner), disapproved on another ground in Katzberg v. Regents of University of California (2002) 29 Cal.4th 300, 320-321.)

Typically, courts exercise their discretion to allow issues to be raised for the first time on appeal when "the issue is purely legal and presented to [the court] on undisputed facts, and involves a matter of public interest." (Bialo v. Western Mutual Ins. Co. (2002) 95 Cal.App.4th 68, 73.) In this case, the parties do dispute the facts regarding the conception and parenting of Amalia, and those facts are relevant to Kristina's as-applied challenge to section 7611(d). However, the factual determinations relevant to Kristina's challenge are encompassed within the trial court's findings that Charisma is a presumed parent and the presumption should not be rebutted. Accordingly, resolution of the constitutional claims requires only that we apply the law to the facts found by the trial court; in these circumstances, we have discretion to consider the claims. (See Hittle v. Santa Barbara County Employees Retirement Assn. (1985) 39 Cal.3d 374, 391, fn. 10 [new legal claim properly considered on appeal where relevant evidence was "fully presented to the trial court"]; cf. People v. Williams (2008) 43 Cal.4th 584, 625 [claim forfeited where there is a "critical factual dispute that the trial court never was asked to explore or resolve"].) There is no unfairness to Charisma in considering Kristina's constitutional claims because Charisma already had full opportunity and incentive to develop the relevant factual record. As in Bonner, supra, 45 Cal.App.4th at page 1477, "the question is one of pure law presented in a context where . . . the factual situation is no "different from that established by the evidence in the trial court.' [Citation.]"

Because Kristina's constitutional claims are a matter of substantial public interest in this rapidly evolving area of family law, we exercise our discretion to decide the claims presented by Kristina on appeal in light of the trial court's factual findings.

B. Kristina's Equal Protection Claim is Without Merit

Kristina contends the trial court's order violates the federal and state constitutional guarantees of equal protection because she was accorded disparate treatment on the basis of gender. "Broadly stated, equal protection of the laws means "that no person or class of persons shall be denied the same protection of the laws . . . enjoyed by other persons or other classes in like circumstances in their lives, liberty and property and in their pursuit of happiness.' [Citation.] In determining whether such a deprivation has occurred, the court's ultimate task is to examine the validity of the underlying purpose, and the extent to which the disputed statutory classification promotes such purpose. [Citations.]" (People v. Wutzke (2002) 28 Cal.4th 923, 943.) "As a foundational matter, however, all meritorious equal protection claims require a showing that "the state has adopted a classification that affects two or more similarly situated groups in an unequal manner.' [Citation.] In other words, "neither the Fourteenth Amendment of the Constitution of the United States nor the California Constitution [citations] precludes classification by the Legislature or requires uniform operation of the law [for] persons who are different . . . "with respect to the legitimate purpose of the law." ' [Citations.]" (Id. at pp. 943-944.)

Kristina's argument she was accorded disparate treatment on the basis of gender rests on two Court of Appeal decisions in which men were denied presumed parent status, Spencer W., supra, 48 Cal.App.4th 1647 and Sarah C., supra, 8 Cal.App.4th 964. Kristina contends she is "similarly situated to the mothers in those cases" and she "was accorded disparate treatment because of the sex of her ex-partner." (Boldface type omitted.)

We have already rejected Kristina's attempt to analogize this case to Spencer W. and Sarah C. To summarize, in Spencer W., the alleged father did not have his name placed on the birth certificate, he was "equivocal" in acknowledging his paternity, and he abandoned the child when the mother stopped supporting him. (Spencer W., supra, 48 Cal.App.4th at pp. 1650-1651.) In Sarah C., the alleged father did not assist the mother during the pregnancy, did not seek to have his name listed on the birth certificate, and did not inform the mother's husband of his paternity claim. (Sarah C., supra, 8 Cal.App.4th at pp. 972-973.) For the reasons stated previously, the present case is distinguishable from Spencer W. and Sarah C.

Kristina has not shown that a similarly situated biological mother opposing a petition to establish presumed parentage would be treated differently under the law if the alleged parent, lacking a biological connection to the child, were a man instead of a woman. In other words, Kristina has not shown that a case involving a man in Charisma's circumstances would be decided any differently under the law. (See Elisa B., supra, 37 Cal.4th at p. 129 (conc. opn. of Kennard, J.) [pointing out that a man similarly situated to the non-biological mother in the case also would have been declared a presumed parent].) Kristina's equal protection claim is without merit.

C. Kristina's Due Process Claim is Without Merit

Kristina contends the trial court's ruling, declaring Charisma a presumed parent "over [Kristina's] objections as the fit biological mother," violated her federal and state constitutional rights to due process. In particular, citing Troxel v. Granville (2000) 530 U.S. 57 (Troxel), Kristina contends that recognizing Charisma as a parent violated her fundamental parental right to rear Amalia.

In Troxel, the United States Supreme Court struck down on due process grounds a visitation order under a Washington statute that allowed " "[a]ny person' to petition a superior court for visitation rights "at any time' " and authorized the court "to grant such visitation rights whenever "visitation may serve the best interest of the child.' " (Troxel, supra, 530 U.S. at p. 60.) Under the statute, Granville, a single mother, was required to permit her children's paternal grandparents to visit the children on a schedule imposed by the trial court. (Id. at pp. 60-61.) The Supreme Court explained that the Fourteenth Amendment's due process clause*fn26 not only guarantees fair process but also "includes a substantive component that "provides heightened protection against government interference with certain fundamental rights and liberty interests.' " (Troxel, at p. 65; see also Dawn D., supra, 17 Cal.4th at pp. 939-940.) The court, in a plurality opinion written by Justice O'Connor, concluded the nonparental visitation order "was an unconstitutional infringement on Granville's fundamental right to make decisions concerning the care, custody and control of her two daughters." (Troxel, at p. 72.)*fn27

Troxel is inapposite. There, the court considered a nonparental visitation statute (Troxel, supra, 530 U.S. at p. 73); at issue here is a statute determining the identity of Amalia's parents. Unlike the order in Troxel, the order declaring Charisma a parent of Amalia by definition did not extend rights to a nonparent. Moreover, as in K.M. v. E.G., supra, 37 Cal.4th at page 144, neither Charisma's nor Kristina's "claim to parentage preceded the other's." In that case, the California Supreme Court rejected an analogy to Troxel, reasoning "K.M.'s claim to be the twins' mother because the twins were produced from her ova is equal to, and arose at the same time as, E.G.'s claim to be the twins' mother because she gave birth to them." (K.M., at p. 144.) In this case, Kristina and Charisma decided to have a child together, they jointly pursued the goal of Kristina becoming pregnant, and Charisma was present at the birth and cut the umbilical cord. Kristina's parentage claim arises from the fact that she gave birth to Amalia. (Ibid.; Elisa B., supra, 37 Cal.4th at p. 116.) And, at the time of the birth, Charisma had an inchoate parentage claim because she "actively consented to, and participated in, the artificial insemination of her partner with the understanding that the resulting child . . . would be raised by [Kristina] and her as coparents." (Elisa B., at p. 122; see also id. at p. 125.) Charisma's parentage claim was not legally complete until she accepted Amalia into her home, but it arose at the same time as Kristina's claim. Because Charisma ultimately satisfied the legal standards for presumed parent status and her showing was not rebutted, declaring her a parent is not giving parental rights to an unrelated individual; it is recognizing the parental role that existed from birth. (See Sharon S. v. Superior Court (2003) 31 Cal.4th 417, 422, 445 [rejecting analogy to Troxel in second parent adoption context and stating that former same sex partner with no biological connection to child is not "just "any person' [citation]; she is a prospective adoptive mother"].)

Although Kristina fails to frame the issue in this fashion, her true complaint is that the state has seen fit to declare a person without a biological connection to Amalia a parent. This involves a different liberty interest than at issue in Troxel and other cases cited by Kristina; in those cases, the identity of the parents was not in dispute. (Troxel, supra, 530 U.S. 57; Stanley v. Illinois (1972) 405 U.S. 645; Prince v. Massachusetts (1944) 321 U.S. 158.) The distinction is critical because the courts "have required in substantive-due-process cases a "careful description' of the asserted fundamental liberty interest. [Citations.]" (Washington v. Glucksberg (1997) 521 U.S. 702, 721 (Glucksberg); see also Dawn D., supra, 17 Cal.4th at p. 940.) "This "careful description' is concrete and particularized, rather than abstract and general." (Dawn D., at p. 940.)*fn28

Kristina's claim is essentially that as the biological mother, and in the effective absence of a biological father, she has a fundamental right to decide whether Amalia has a second parent. However, she presents no authority or reasoned argument that a state infringes on a biological parent's substantive due process rights by extending parental status to a nonbiological parent in the circumstances of this case. (See Michael H. v. Gerald D. (1989) 491 U.S. 110, 129-130 (plur. opn. of Scalia, J.) [state did not violate biological father's constitutional rights by denying him an opportunity to rebut a presumption that husband of mother was father; "[i]t is a question of legislative policy and not constitutional law whether California will allow the presumed parenthood of a couple desiring to retain a child conceived within and born into their marriage to be rebutted"].) It may be that there are different circumstances in which such an order would be unconstitutional, but any such determination would require a careful analysis of the specific facts and interests involved in the case. (See Troxel, at p. 73.)

Not only has Kristina failed to present relevant authorities and analysis regarding the actual asserted liberty interest at issue, but she fails to address the "complex balancing of competing interests" (Glucksberg, supra, 521 U.S. at p. 722) necessary to resolution of substantive due process claims, despite the fact that this court identified some of the potential competing interests in Charisma I. There, we pointed out that "a rule that allowed the biological mother to unilaterally deny presumed parent status would potentially implicate the constitutional rights of the person seeking such status [citation] and the constitutional rights of the child in the establishment of the parent-child relationship [citation]." (Charisma I, supra, 140 Cal.App.4th at p. 308; see also Kelsey S., supra, 1 Cal.4th at p. 849 [holding that it would violate an unwed father's constitutional rights to allow "a mother unilaterally to preclude her child's biological father from becoming a presumed father"].) We also pointed out that "[s]uch a rule would be contrary to the "public policy favoring that a child has two parents rather than one.' [Citation.]" (Charisma I, at p. 308.) Finally, an assessment of the weight of Kristina's interest in denying parental status to Charisma would need to take into account Kristina's own conduct prior to and immediately after Amalia's birth, which led Charisma to understand that she would be a parent.

We point out these competing interests and considerations to elucidate the fallacy of Kristina's simplistic analogy to Troxel, supra, 530 U.S. 57, and to demonstrate the complexity of a substantive due process claim based on the actual liberty interest affected by the trial court's order. However, because Kristina has failed to provide citations to authority and reasoned argument regarding the balancing of interests necessary to resolve that due process claim, we deem the argument waived. (Badie v. Bank of America (1998) 67 Cal.App.4th 779, 784-785.) This is particularly appropriate in light of the admonition from the United States Supreme Court that "constitutional protections in this area are best "elaborated with care.' " (Troxel, at p. 73; see also In re Marriage of Harris, supra, 34 Cal.4th at p. 228 ["we should be very careful in identifying the scope of the due process interest in parenting"].)

We conclude Kristina has failed to meet her burden of showing that the order declaring Charisma to be Amalia's second parent was an unconstitutional infringement of her state and federal rights to substantive due process. (See Dawn D., supra, 17 Cal.4th at p. 939 [courts must "always presum[e] the constitutional validity of legislative acts and resolv[e] doubts in favor of the statute"].)

IV. The Trial Court Did Not Abuse its Discretion in its Handling of the Custody Evaluators*fn29

In March 2007, the trial court appointed Dr. Jacqueline Karkazis and Dr. Sharon Lazaneo as custody evaluators in this matter. Dr. Lazaneo testified that she had performed almost 4,000 evaluations for the Alameda Superior Court over the course of 42 years. The trial court found the evaluators are "among the most experienced in this County," having over 80 years of combined experience. Kristina contends the trial court erred when, in July 2007, it declined to disqualify the evaluators following disclosure of a financial contribution they made to the National Center for Lesbian Rights (NCLR), which assisted Charisma at an earlier stage and continues to have an interest in the case. In particular, the evaluators informed the court that in 2004 they made a donation to an NCLR memorial fund in the memory of a recently deceased family law practitioner, pursuant to a request made by the decedent's partner for donations to the fund in lieu of flowers. The evaluators informed the court they made no further donations and are not members of the NCLR.

Kristina argues the contribution demonstrates the evaluators had a conflict of interest they failed to disclose, in violation of California Rules of Court, rules 5.220(h)(10) and 5.225(k)(6). Kristina has not shown the evaluators violated those rules because she cites to nothing in the record demonstrating they were aware or should have been aware of the NCLR's involvement in this case. Furthermore, Kristina has not shown the trial court abused its discretion in refusing to disqualify the evaluators. (Montenegro v. Diaz (2001) 26 Cal.4th 249, 255.) The court could reasonably have concluded that a one-time contribution three years prior in memoriam to a former colleague did not require disqualification, particularly in light of the evaluators' extensive experience and the fact that they had already commenced work on the matter. Kristina presents no authority to the contrary.*fn30

Kristina also contends the trial court improperly "punished" her for moving to Texas when it required her to choose between bringing Amalia to California for a psychological custody evaluation or paying $7,500 to have the two court-appointed evaluators travel to Texas. The court's order indicated that if Kristina brought Amalia to California, all expenses would be split by the parties. Kristina does not argue the court abused its discretion and she presents no authority that the court's order constituted punishment for her relocation.*fn31 The court's order was reasonable and not punitive; it only imposed additional costs on Kristina if she refused to bring Amalia to California, due to the additional costs that would be incurred if the evaluators had to travel to Texas.

Finally, Kristina contends she had an absolute right to audiotape the psychological evaluation of Amalia and the trial court erred by requiring the evaluators' permission for any such recording. The evaluators refused to permit the recording, informing the court, "[i]n the combined near 100 years of our experience, we have never permitted parties or counsel to video tape, audio record or retain the services of an expert to attend child custody evaluation interviews." Kristina relies on Code of Civil Procedure section 2032.530, subdivision (a), which provides: "The examiner and examinee shall have the right to record a mental examination by audio technology." However, that provision is part of a chapter in the Civil Discovery Act (Code Civ. Proc., § 2016.010 et seq.) providing for physical and mental examinations as part of discovery in litigation. (Code Civ. Proc., § 2032.010 et seq.) Code of Civil Procedure section 2032.020, subdivision (a), provides: "Any party may obtain discovery. . . by means of a physical or mental examination of (1) a party to the action, (2) an agent of any party, or (3) a natural person in the custody or under the legal control of a party, in any action in which the mental or physical condition . . . of that party or other person is in controversy in the action." Even assuming as a general matter that the Civil Discovery Act applies to this action under the UPA, the evaluation at issue did not constitute "discovery" in the action. Instead, it occurred pursuant to the court's appointment of the evaluators to aid the court in making custody and visitation determinations. "Courts order child custody evaluations, investigations, and assessments to assist them in determining the health, safety, welfare, and best interest of children with regard to disputed custody and visitation issues." (Cal. Rules of Ct., rule 5.220(b); see also Family Code § 3011 [specifying factors trial court "shall" consider in determining best interests of the child in a UPA action]; Family Code § 3021, subd. (f).) Accordingly, Code of Civil Procedure section 2032.530, which only addresses mental examinations as part of party discovery, is inapplicable. In any event, Kristina has cited no authority for the proposition that the court's refusal to permit recording of the evaluation provides a basis for reversal of its orders; notably, the evaluators testified at trial and were subject to cross-examination. (See Code Civ. Proc., § 475.)

Kristina's claims related to the custody evaluators fail.

V. Kristina Has Not Made a Showing of Judicial Bias*fn32

Kristina also contends the trial court's rulings relating to the evaluators, combined with certain comments made by the court in its tentative ruling on custody and visitation, raise doubt regarding the trial court's impartiality. For example, the trial court's tentative ruling stated, "when [Charisma] tried to maintain contact with Amalia, [Kristina] fled to Texas where she had the support of her sister, mother and other family members." Kristina complains regarding the court's use of the word "fled," although she does not demonstrate a lack of evidentiary support for that characterization. In any event, the court omitted the word "fled" in the final decision, replacing it with "relocated." Similarly, in the final decision the court changed language stating that Kristina shall not "interfere" with Amalia's therapy process to state that neither party shall interfere. The court also originally required Kristina to pay for half of Charisma's travel expenses for the reunification process; Charisma's cross-appeal arises from the court's decision to change that ruling. In sum, most of the examples relied upon by Kristina actually show the court's solicitude for Kristina's concerns and responsiveness to her objections, rather than a lack of impartiality.

Kristina urges this court to apply the standard for judicial misconduct applicable in the trial context, requiring a reviewing court to reverse a judgment where "the court's comments would cause a reasonable person to doubt the impartiality of the judge." (Haluck v. Ricoh Electronics, Inc. (2007) 151 Cal.App.4th 994, 1008.) But all of the court's statements and rulings cited by Kristina in her briefs, taken as a whole, would not cause a reasonable person to doubt the court's impartiality. (See Haldane v. Haldane (1965) 232 Cal.App.2d 393, 395 [" "a trial judge will normally and properly form opinions on the law, the evidence and the witnesses, from the presentation of the case. These opinions and expressions thereof may be critical or disparaging to one party's position, but they are reached after a hearing in the performance of the judicial duty to decide the case, and do not constitute a ground for disqualification' "].)

VI. Charisma's Cross-Appeal

The court-appointed custody evaluators recommended a gradual process to reestablish Charisma's relationship with Amalia, including joint therapy sessions in Texas with a court-appointed therapist. In its tentative order following the April 2008 trial regarding custody and visitation, the trial court ordered the parties to equally share the costs of the reunification process, including the therapist's fees and Charisma's airfare costs to travel to Texas. After Kristina objected, the court concluded it lacked authority to require Kristina to pay a share of Charisma's travel costs because there was no child support order and Kristina was not technically a "move away" parent. The court also stated that forcing Kristina to bear a portion of the travel costs would be "punitive," which was a reference to Kristina's argument that forcing her to bear a portion of the costs would be a "punitive penalty against" her "exercise of her constitutional right to travel." The court required Charisma to bear 100 percent of the travel costs.

In her cross-appeal, Charisma contends the trial court erred in concluding it lacked authority to order the parties to share the travel expenses. She argues the court had broad discretion to apportion the costs of visitation in the best interests of the child. We agree. In the proceeding at issue, to determine custody and visitation issues in a UPA action (§ 3021, subd. (f)), the court had "the widest discretion to choose a parenting plan that is in the best interest of the child" (§ 3040, subd. (b)). (See also Burgess, supra, 13 Cal.4th at p. 31.) The court was required to consider "all the circumstances bearing on the best interest of the minor child." (Burgess, at pp. 31-32; see also §§ 3011, 3021, subd. (f).) One relevant consideration was the state policy encouraging frequent visitation. Section 3020, subdivision (b), provides: "The Legislature finds and declares that it is the public policy of this state to assure that children have frequent and continuing contact with both parents after the parents have . . . ended their relationship, and to encourage parents to share the rights and responsibilities of child rearing in order to effect this policy. . . ." Charisma points out that, were she forced to bear the entire financial burden, the cost of airfare could interfere with her ability to frequently visit Amalia in Texas.

In Burgess, supra, 13 Cal.4th at page 40, the Supreme Court discussed the trial court's authority to fashion visitation orders, stating "the trial court has broad discretion to modify orders concerning contact and visitation to minimize the minor children's loss of contact and visitation with the noncustodial parent in the event of a move, e.g., by increasing the amount of visitation with the noncustodial parent during vacations from school, allocating transportation expenses to the custodial parent, or requiring the custodial parent to provide transportation of the children to the noncustodial parent's home." (Italics added; see also In re Marriage of LaMusga (2004) 32 Cal.4th 1072, 1101 [trial courts must be permitted to "exercise their discretion to fashion orders that best serve the interests of the children in the cases before them"].) Although the quoted text in Burgess is phrased in the language of a "move-away" case, in which a parent who has sole physical custody under an existing judicial custody order seeks to relocate, the case actually involved an initial order of custody and visitation. (Burgess, at p. 37 & fn. 8.) Burgess discussed "move-away" cases in order to broadly clarify the law because "considerations and interests in both types of custody matters are closely interrelated." (Id. at p. 37, fn. 8.) Accordingly, Burgess does not suggest a court's authority to allocate transportation expenses is limited to "move away" cases. Neither does the decision suggest any such allocation must be made in the context of a child support order.

Kristina, in her briefing on the cross-appeal, does not dispute that the trial court had authority to order the parties to share travel expenses and does not argue that such an order would have violated her constitutional right to travel. Instead, she asserts that the trial court actually exercised its discretion and concluded it would be inappropriate to require Kristina to share the travel costs. That argument is without merit. The court's final order on the issue states that it initially "was inclined to order that [Charisma's] travel costs to Texas be split 50/50, but [Kristina] objected to this provision." The court then noted that the issue sometimes comes up in the context of child support orders and in the context of "move aways." The court concluded: "Here there is no child support order or request for one, and [Kristina] moved away at a time when under the then-current state of the law [Charisma] had no standing to object and the court no power to impose conditions on the move. Under these circumstances, the court concludes that forcing [Kristina] to bear a portion of [Charisma's] travel costs would be "punitive' and, more importantly, without authority." The order is unambiguous; the trial court concluded it lacked authority to require the parties to share the travel expenses.

We remand for the trial court to exercise its discretion to determine whether, in the best interests of Amalia, the parties should share Charisma's travel costs to Texas for the reunification process.

DISPOSITION

The trial court's orders are affirmed, except as to allocation of Charisma's travel expenses for the reunification process. On that issue, we reverse and remand with directions that the court exercise its discretion. Costs on appeal are awarded to Charisma.

We concur. NEEDHAM, J., BRUINIERS, J.*fn33


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