Gaymon v. Hunt

Filed 8/28/07 Gaymon v. Hunt CA2/4

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION FOUR

APPEAL from an order of the Superior Court of Los Angeles County, Scott F. Gordon, Commissioner. Affirmed.

Roosevelt Gaymon, in pro. per., for Appellant.

No appearance for respondent.

Agnes Deravin Achstein, under appointment by the Court of Appeal, for Minors.

_________________________

Father, Roosevelt Gaymon, appeals the trial courts order granting primary physical custody of his daughters to their mother, Christine Hunt. Father argues the court: (1) exceeded its jurisdiction by ordering modification of custody of the minor children when the only issue raised and responded to was visitation; (2) improperly modified custody using a best interest standard rather than a postjudgment change of circumstance standard; and (3) minors counsel went beyond the scope of her role by analyzing the case using a best interest standard.

We find no abuse of discretion and affirm the judgment.

FACTUAL AND PROCEDURAL SUMMARY

Father and mother have two children, Alexis, now 13 years old, and Rachel, now 12 years old. The parents lived together until they divorced in 1998. At that time, mother was granted primary physical custody and was allowed to move to Georgia with the children.

In November 2002, father obtained an order to show cause why he should not have physical custody of the girls. Mother was not present at the November 13, 2002 hearing on this order, at which the court awarded sole physical custody to father. In December 2002, father picked up the girls in Georgia for what he said was a one-week visit to his mothers residence. Father did not inform mother of the order changing custody, or that he was taking the girls to Los Angeles to live with him in accordance with the November custody order.

In March 2003, mother obtained an order to show cause why custody of the children should not be returned to her. Pending a full evaluation, the court ordered temporary custody to father until the end of the school year to be followed by temporary custody to mother in Georgia. A court-ordered Evidence Code section 730 child custody evaluation was conducted by Rosemary Gray, M.F.T. Ms. Gray recommended that mother have custody during the school year and father have custody during vacation. The court questioned mothers credibility and ordered joint legal custody with father as the school parent and mother as the main vacation parent. Mother sought reconsideration of this order, which was denied. She then appealed that order but no abuse of discretion was found and the order was affirmed.

In June 2004, father filed an ex parte application with the family court, requesting modification of the August 2003 order, to require supervision of mothers visits with the children. Mother responded with a request that the court (1) deny fathers request for monitored visits; (2) require the children be enrolled in therapy; (3) appoint counsel for the minors; (4) order that the girls be prevented from sleeping in the bedroom with father; and (5) order father not to take the children to work with him. Neither parent raised the issue of physical custody. The court denied fathers request and appointed counsel for the minors. In December 2004, the trial court ordered modification of physical custody. The court granted primary physical custody to mother, although both mother and father retained joint legal custody. Father filed a timely appeal.

DISCUSSION

We review child custody and visitation orders under the abuse of discretion standard. (In re Marriage of Burgess (1996) 13 Cal.4th 25, 32.) The test is whether the trial court reasonably could have concluded that the order advanced the best interests of the children. (Ibid.)

Family Code section 3087[1]provides that an order for joint custody may be modified or terminated upon the petition of one or both parents or on the courts own motion if it is shown that the best interest of the child requires modification or termination of the order. In Enrique M. v. Angelina V. (2004) 121 Cal.App.4th 1371, 1383, the court held that, where parents share joint physical custody of the minor children under an existing order, the best interests test, not the changed circumstances test, applies with respect to a change in the parenting schedule. The trial court determines which arrangement for primary custody is in the best interest of the minor children. (In re Marriage of Burgess, supra, 13 Cal.4th 25, 40.)

In determining what is in the best interest of the child in a custody proceeding, the court is to consider the health, safety and welfare of the child, the nature and amount of contact with both parents, and any other factors it finds relevant. ( 3011.) A child of sufficient age and capacity to reason so as to form an intelligent preference as to custody is entitled to have that preference seriously considered by the court. ( 3042.) To the extent the court decides consideration should be given to preferences of children, such preferences are entitled to greater consideration in a modification proceeding where the child has lived with the arrangement and can have a more informed basis for his or her preference. (In re Marriage of Rosson (1986) 178 Cal.App.3d 1094, 1103, disapproved on another ground in In re Marriage of Burgess, supra, 13 Cal.4th 25, 37.)

In this case, the trial court found that while living with father, the children suffered psychological distress with resulting physical and behavioral symptoms. Minors counsel reported that this change in the girls emotional and physical health occurred after father brought them to California in November 2002. This occurred after father was awarded custody after mother failed to appear in court. Father picked the girls up in Georgia and told the girls and mother that they would be visiting with their paternal grandmother for a week. He did not discuss the change of custody with mother or the girls. Instead, he took the girls to California by bus. The girls were upset when they realized they were not going to their grandmothers. Father told them that mother would have to talk to the police if she wanted to see them. After arriving in California, father would not allow the girls to receive letters from their mother or speak to her unless he was present.

Of additional concern to the court was fathers judgment with regard to discipline, sensitivity to the girls emotional needs, and choice of extra-curricular activities. Father admitted to spanking the girls even after being ordered not to use corporal punishment. After the December 2004 hearing on custody and visitation, the court ordered psychological therapy for the girls. Father sought counseling for the girls with Dr. Anita Gray. Dr. Gray told the children that cameras were hidden in rooms in their home and in fathers car. No cameras were in the house or fathers car. Father explained to the court that he led the girls to believe they were being watched because the girls were lying. When the girls told Dr. Gray that they wanted to go to court to request that they return to live with their mother, Dr. Gray told them that they might not be placed with either parent but could be put in a foster home instead. Father testified that he found these therapeutic methods appropriate and did not appear troubled by these techniques, but he discontinued the girls therapy with Dr. Gray upon the request of minors counsel.

The girls began therapy with James Kirk, M.F.C.T., who diagnosed them with depression and other psychological problems dating from their move to California. Mr. Kirk reported that the girls were suffering from substantial emotional conflict and erosion of trust, self-esteem and confidence. While visiting Georgia in July 2004, mother took them to a pediatrician because both girls had started wetting the bed and were suffering physical symptoms. The pediatrician referred them to a therapist, Dr. Danella Lazenby-Ausborn. Dr. Ausborn found that Alexis has suffered from depression and panic attacks since living with father. Dr. Ausborn stated that Rachel also was suffering from anxiety and that both girls had poor coping skills and engaged in acting-out behavior. Dr. Ausborn called Child Protective Services twice, based upon these counseling sessions, to report suspected child abuse by father.

The court expressed its concern that father had shown questionable judgment with regard to how the girls spend their time when they are not in school. He has left the children in his car while he was at work, and they sometimes spent time playing video games in the stores where he works. At other times, father has had the girls in day care until 6:00 p.m. even though he is working part-time. In addition, the court was surprised by fathers failure to enroll Alexis in gymnastics. Alexis is a talented gymnast and the child custody evaluator recommended that she continue gymnastics while in California. The trial court found the failure to enroll Alexis in gymnastics particularly puzzling, since physical exercise and the opportunity to become involved and succeed could have benefited Alexis while she was depressed and suffering from low self-esteem.

The trial court expressed its concern that father did not appear to appreciate the psychological and emotional impact of the unplanned removal of the girls to Los Angeles. Minors counsel argued that father does not acknowledge the girls feelings and, therefore, cannot provide adequate emotional support. After the move to California, he allowed the girls to believe their mother was in jail, withheld letters from them, and monitored their telephone calls. Father testified that the childrens psychological and behavioral problems stem from their mother turning them against him and that he did not see a connection between the move to California and the girls unhappiness.

The trial court expressed concern about the failure of each parent to effectively coparent and the resulting negative impact on the childrens well-being. It gave strict instructions to both parents regarding appropriate communication, methods of punishment and the importance of effective coparenting to their childrens well-being.

The court also noted that the childrens emotional health had deteriorated while living with father. The girls repeatedly expressed a wish to live with their mother, and the court noted that, up until this time, the girls wishes had been disregarded. Taking this and other factors into consideration, the court found that the emotional and physical needs of the girls would be best served by awarding primary custody to the mother and vacation custody to the father.

Even if a change of circumstance standard had been used in this case, the evidence supports the courts exercise of discretion. The trial court awarded custody to mother because of the change in the childrens psychological well-being while living with father. Furthermore, sections 3011 and 3087 instruct the court to consider the best interest of a child and allow the court, on the courts own motion, tomodify custody. We conclude the court acted within its discretion in changing the custody order based upon consideration of the childrens emotional and physical distress and their request to live with their mother.

DISPOSITION

The order is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

EPSTEIN, P. J.

We concur:

MANELLA, J.

SUZUKAWA, J.

Publication Courtesy of California free legal resources.

Analysis and review provided by Spring Valley Property line attorney.

[1] All statutory references are to the Family Code unless otherwise indicated.