Trial Court: San Francisco County Superior Court Trial Judge: Hon. Patrick J. Mahoney (San Francisco City and County Super. Ct. No. FDI-07-764262)
The opinion of the court was delivered by: Kline, P.J.
CERTIFIED FOR PUBLICATION
Tiela Chalmers and Michael F.,*fn1 the biological parents of Eliana F., entered into a contract to share custody of Eliana. At the time of Eliana's birth, Tiela was in a relationship with Lisa Hirschkop. In 2008, after Tiela and Lisa had terminated their relationship, Lisa filed a request as a stepparent pursuant to Family Code section 3101 for visitation with Eliana.*fn2 The court's order on October 23, 2008, denied Lisa's petition (the 2008 order), and found that she had failed to meet the burden of proof required to override the parents' joint decision regarding visitation.
Subsequently, the parents further restricted Lisa's access to Eliana and Lisa filed a motion to modify the 2008 order. She also asked the trial court to require Eliana to testify or be examined. The court denied Lisa's request to have then 10-year-old Eliana testify and denied her motion to modify the 2008 order.
Lisa appeals the order denying her request to modify the 2008 order. She claims, among other things, that the trial court did not apply the law correctly and that the court was obligated to conduct an evidentiary hearing. She also contends that the court abused its discretion by terminating jurisdiction over custody issues.
We hold that a stepparent cannot request a modification of a prior court order that denied visitation under section 3101, subdivision (a). Once the trial court denies on the merits a stepparent's request for visitation under section 3101, subdivision (a), no legal authority permits the court to consider a modification of this final order. We also are not persuaded by Lisa's other arguments and affirm the judgment.
Tiela and Michael began meeting with each other to discuss having a baby together by artificial insemination.*fn3 Michael and Tiela entered into a co-parenting contract on April 2, 2000, and agreed to joint legal and physical custody of their child. Michael and Tiela's child, Eliana, was born in 2001.
In March 2000, after Tiela and Michael had agreed to have a baby together, Tiela and Lisa became involved in a romantic relationship. Tiela and Lisa registered as domestic partners in 2003. From 2001 until 2006, Lisa was a stepparent to Eliana.
Tiela and Lisa separated in May 2006. A little less than one year later, in April 2007, Tiela filed a petition in the superior court for dissolution of the domestic partnership. Judgment was entered dissolving the domestic partnership on December 18, 2007.
On January 24, 2008, a little less than one month after judgment was entered dissolving the domestic partnership, Lisa filed a motion for stepparent visitation of Eliana. Lisa filed an amended motion for visitation on August 8, 2008; she also requested attorney fees, costs, and an injunctive order. Tiela opposed the motion and Michael filed a declaration in support of Tiela's opposition to Lisa's motion.
The trial court held a hearing on Lisa's motion on September 16, 2008. Counsel for Lisa argued that Lisa was a stepparent and it was in Eliana's best interests to spend time with her. The court noted that both legal parents agreed with limited visitation and both objected to increasing visitation to 15 hours a week, which was what Lisa sought. Counsel for Lisa argued that the visitation offered was not reasonable because the parents could at any point in time completely eliminate all visitation. The court responded that Lisa was requesting legal rights due a parent and emphasized that Lisa was not a legal parent.
At the hearing, the trial court denied Lisa's motion for visitation. The court explained: "This is not a situation where, as the court said before, [Lisa] has a right or stands on the footing as a parent. She is being provided access to the child. She may consider it limited access, but that's the prerogative of the parents. And she may not like that, but we're not in a situation where the parents have completely cut her out of the child's life. [¶] And in fact, they, as parents, have the responsibility and the duty to make decisions that they determine, jointly, are in this child's best interest. They have done so and this court is not going to interfere with that. The court respects that. And in fact, applauds the fact that parents can make those decisions without the necessity of the court imposing its view in a situation where the court doesn't know the child."
The court elaborated: "And what [Lisa] wants the court to do is simply step over all of these regulations where the parents are working in unison and making determinations and have a custody evaluation, which is completely unwarranted, and allow her more access to the child when both parents are disagreeing. And she's not established that there is a detriment. And that's what she needs to do in this situation, as the court reads the law. [¶] And she talks about best interest, but the parents have made that determination. And so, she's in the position of having to show why the schedule that has been set up, and the court will note for the record, it's measured, it's thoughtful towards your client. She may not agree with it, but she hasn't established that the schedule, as it's presented, works a detriment to the child. The child does have access to her."
The court filed its order on October 23, 2008, denying Lisa's petition. The court found that Lisa is a stepparent to Eliana, not a legal parent, and that the court did not have jurisdiction to award custody or custodial rights to a stepparent. With regard to visitation, the court ruled: "[Section] 3101 does not provide [Lisa] with an absolute right to Family Court Services Mediation, or visitation with Eliana . . . . The court finds that Eliana's parents have provided access to Eliana and although it is limited it is the parents' prerogative to limit the access. The court finds that it is the responsibility and duty of the parents to make decisions about their child. The court finds that the parents have jointly determined what is in Eliana's best interests. [Lisa] seeks to override the parents' decisions. This court respects the decisions of the parents and will uphold them. There is no legal basis to question the parents' determination as to what is in their child's best interests when they are working in unison. [Lisa] failed to meet her burden of proof under the law."
Lisa did not file a motion for clarification or reconsideration of this 2008 order. She also did not appeal from the 2008 order.
On September 12, 2009, Tiela and Michael wrote Lisa a letter stating that they had decided to reduce the time Eliana was spending with Lisa. They wrote: "[F]or about [two] years or more now we have adhered to a schedule under which you see Eliana every Tuesday from the end of school (2:30 p.m.) until 7:15, and then on the third Saturday of each month from noon until [9:00 a.m.] the following morning." They asserted that Eliana came home from these visits angry and confused because Lisa told Eliana that her parents were lying to her about the schedule. They added: "We took Eliana to see Dr. Litter, the child psychologist that she saw last year. He expressed significant concern about her well-being. We invited you to meet with Dr. Litter separately, but you refused. We have worked with him on a plan to address Eliana's distress. You still have the opportunity to meet with Dr Litter, if you choose." They concluded that Lisa could no longer see Eliana on Tuesdays or on the third Saturday but could have supervised visits periodically.
On May 9, 2011, Lisa filed a motion for "stepparent visitation," and requested a modification of the order on October 23, 2008, which denied her visitation. She asserted that she had been limited to supervised visitation of four hours every three months and thus she had only 16 hours a year with Eliana. She maintained that when Eliana visited her in 2007, Eliana would often tell her that she did not want to leave and had "meltdowns over insignificant occurrences." Lisa declared that Eliana would ask her very specific questions about her schedule, such as why Lisa did not see her as much as Tiela saw her. In June 2009, Lisa mentioned to Tiela that she had some "worrisome conversations" with Eliana and that Eliana wanted to spend more time with Lisa. In response, Tiela took Eliana to see Dr. Litter and suggested that Lisa meet separately with Dr. Litter. Lisa refused to meet with Dr. Litter because, according to Lisa's declaration, Tiela had referred to his alleged recommendations when opposing Lisa's motion for visitation in 2008. Lisa denied ever putting Eliana in the middle of Lisa's own issues with Tiela and Michael. She asserted that Eliana was upset about their short and infrequent visits and had repeatedly expressed a desire to see Lisa more frequently. Lisa maintained that her current visitation schedule was detrimental to Eliana "and a drastic change" from her previous schedule. Lisa urged the court to examine Eliana or have an evaluation of her to assess Eliana's preferences and best interests.
In opposing Lisa's motion, Tiela submitted her own declaration and the declaration of Michael. Tiela stated that in 2009 Eliana was having a difficult time and "[t]hings were particularly challenging before and after any extended time she was in Lisa's care." She maintained that Michael and she decided on the quarterly monitored visits with Lisa after consulting with Dr. Litter. The parents observed that once they reduced Eliana's visitation with Lisa, "Eliana's mood lifted" and her stress and anxiety were gone. Michael stated that Tiela and he knew what was in their daughter's best interests and they both agreed Eliana had been "doing significantly better" since they had restricted her visits with Lisa.
The trial court held a hearing on Lisa's motion on July 7, 2011. The court stated that it did not believe the parties had to be sworn because the issue before it was a strictly legal issue. Lisa's attorney argued that the present circumstances differed from the situation in September 2008, when the court denied her motion for visitation, because the parents were permitting reasonable visitation in 2008 and now Lisa had "effectively been cut out of the child's life." Counsel for Tiela countered that the court considered this issue in 2008 and concluded that the "parents had the prerogative, the right and the responsibility to make decisions about what is best for their child." Counsel noted that the court had mentioned that the parents were permitting Lisa to have contact with Eliana but that statement was not included in the order and was not binding authority. Lisa, counsel pointed out, still had some access to Eliana.
At the end of the hearing, the trial court denied Lisa's motion and rejected her request to examine Eliana. The court explained that it did "not believe that at age 10 it is appropriate or in the child's best interest to have a limited scope evaluation." The court requested counsel for Tiela to prepare an order.
After counsel for Tiela prepared the order, Lisa's attorney requested numerous changes and the two attorneys disagreed about a number of issues. After receiving orders from both parties' counsel, the court signed the final order provided by Tiela's attorney. The order filed on September 27, 2011, had a line drawn through the following: "Jurisdiction. This court has jurisdiction to make child custody orders in this case under the Uniform Child Custody Jurisdiction and Enforcement Act (part 3 of the California Family Code, commencing with section 3400)." The order stated that the court found the following: "1) The applicable law requires that this court must give fundamental deference to the wishes of the biological parents. Their wishes in this case are quite clear and quite specific. The law places a significant burden on the stepparent to demonstrate that her requested relief is in the best interests of the child and that a denial of the requested relief would be detrimental to the child. The moving party has not met her burden. [¶] 2) The court does not give a great deal of weight to the hearsay statements of the minor child as presented by [Lisa]. [¶] The court does not find that a limited scope evaluation is appropriate, or in the minor child's best interests."
Lisa filed a timely notice of appeal. Tiela, an attorney, appears in propria persona in this court. On October 30, 2012, we issued an order requesting supplemental briefing by the parties to address the following: "Is there statutory or other legal authority for a stepparent to seek and obtain a court order modifying a visitation order where, as here, the original visitation order denied the stepparent's request for visitation under Family Code section 3101, subdivision (a)? In other words, can an order denying a stepparent visitation rights be modified?" Both parties filed supplemental briefs on November 14, 2012, addressing this issue.
" 'The standard of appellate review of custody and visitation orders is the deferential abuse of discretion test.' " (Montenegro v. Diaz (2001) 26 Cal.4th 249, 255.) Generally, a trial court abuses its discretion if there is no reasonable basis on which the court could conclude its decision advanced the best interests of the child. (In re Marriage of Melville (2004) 122 Cal.App.4th 601, 610.) "Under this test, we must uphold the trial court 'ruling if it is correct on any basis, regardless of whether such basis was actually invoked.' " (Montenegro, at p. 255.)
A " 'showing on appeal is wholly insufficient if it presents a state of facts, a consideration of which, for the purpose of judicial action, merely affords an opportunity for a difference of opinion. An appellate tribunal is neither authorized nor warranted in substituting its judgment for the judgment of the trial judge. To be entitled to relief on appeal from the result of an alleged abuse of discretion it must clearly appear that the injury resulting from such a wrong is sufficiently ...