(Super. Ct. No. FL08-28535)
The opinion of the court was delivered by: Butz , J.
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
On the record of a settled statement (Cal. Rules of Court, rule 8.137) Angela Padgett-Godden (mother) appeals from a child custody order granting her and Damon Godden (father) joint legal custody of their two children, Olivia and Zephyr, with primary physical custody of Olivia to mother and primary physical custody of Zephyr to father. On appeal, mother contends the trial court abused its discretion in finding sufficient evidence of compelling circumstances to separate the siblings' households. We disagree and shall affirm the order.
FACTUAL AND PROCEDURAL BACKGROUND
The parties have two children: son Zephyr (born February 2003) and daughter Olivia (born May 1996). In October 2008, mother sought a marital dissolution from father. From this point until the present matter, mother had physical custody of Olivia and Zephyr.
Following a December 2010 dissolution trial at which mother did not appear, an evidentiary custody and visitation hearing was held in February 2011. At the evidentiary hearing, father, mother, and Richard Tiran (mother's neighbor) testified. Separate counsel for father, mother, and the children (together), presented argument. A summary of this testimony and these arguments constitutes the settled statement, which comprises the record on appeal here. (Cal. Rules of Court, rule 8.137.)
Father testified that mother's constant moves with the children--totaling seven times in just two-and-a-half years (from fall 2008 to January 2011) and covering different counties--created an unstable environment for the children. Mother moved without notifying father or the court. Father believes the children need a stable and consistent home, especially since Zephyr was struggling in school and had been dropped from the home school program. A subsequent school in which Zephyr was enrolled (in the first grade) reported that he was having behavioral problems, until father volunteered there regularly (which was compatible with father's work schedule). Father testified that Olivia and Zephyr fight constantly, Olivia is very bossy and hard on Zephyr, and Olivia does not allow father to parent Zephyr.
Mother testified that even with the moves, Olivia is excelling in school. However, mother acknowledged that Zephyr is struggling in that realm. In mother's opinion, Olivia and Zephyr "have a positive, healthy, and close sibling relationship with little conflict." Mother also stated that Olivia and father have a strained relationship.
Tiran, mother's neighbor, testified on her behalf. In Tiran's opinion, Olivia and Zephyr appeared to be well-adjusted kids who were close with one another.
In argument, minors' counsel presented what amounted to an offer of proof regarding the following facts. Minors' counsel stated that Zephyr stressed how much he enjoyed spending alone time with father, especially since it freed him from the constant fighting with Olivia. Zephyr also stated that he wanted to live with father and strongly preferred not to live with Olivia because he dislikes the constant fighting.
There is a seven-year age difference between the children, with Olivia in high school and Zephyr in second ...