Filed 9/18/17 Johnny S. v. Marisa S. CA1/5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FIVE

MEMORANDUM OPINION[1]

Appellant Johnny S. (father) and respondent Marisa S. (mother) are the parents of Jose L.S. (child), who was born in February 2013. The family court awarded mother sole physical and legal custody of Jose and an unborn sibling, with father to have weekly visitation. Father appeals, arguing he should have been given joint custody. We affirm.

We review a child custody order for abuse of discretion and apply the substantial evidence standard to the trial court’s factual findings. (In re Marriage of Burgess (1996) 13 Cal.4th 25, 32.) Because the trial court expressly found credible a declaration submitted by mother on the issue of child custody, we state the facts consistently with her rendition of events to the extent they conflict with father’s. (See Fininen v. Barlow (2006) 142 Cal.App.4th 185, 189–190.)

Mother became pregnant with Jose while the parents were both living in Sonoma County, but she moved to Idaho before giving birth to Jose. Father came to Idaho for Jose’s birth and mother returned to live in Sonoma County for about three months before returning with Jose to Idaho. Father did not see Jose for about two years.

In June 2015, when Jose was three years old, mother and Jose moved back to Sonoma County. No custody order had ever been entered, but mother and father agreed to an arrangement under which father would have Jose from 9:00 a.m. to 3:30 p.m. every Monday, from 7:00 p.m. to 7:30 a.m. every Wednesday/Thursday, and from Friday at 7:30 p.m. to Sunday at 10:00 a.m. every other weekend Mother again became pregnant with father’s child.

On April 21, 2016, father did not return Jose at the scheduled time, but instead served mother with a Request for Order seeking sole custody of Jose and their unborn child (due in August 2016). Mother went to court that same day to file a responsive declaration objecting to father’s request, but was told by the clerk that the case under the number provided by father had been dismissed. The police told mother that because there was no extant custody order, they could not compel father to return Jose but could only conduct a “well check.”

Mother went to the homes of father and his sister-in-law looking for Jose and saw police officers gathered at the sister-in-law’s house. One of the officers told mother to leave because the sister-in-law had (falsely) reported that mother had tried to run her off the road, and they were getting conflicting stories. Mother was later arrested at her home because father had falsely reported she had choked him when he saw her that morning. Mother was later released and the charges against her were dropped. Jose was returned to her care.

Father filed a Request for Temporary Orders seeking sole custody of Jose and the unborn child, as well as a Request for Domestic Violence Restraining Order, and a Request for Order: No Travel with Children. The court denied the request for a restraining order and granted mother sole legal and physical custody of Jose pending a hearing. Mother filed a declaration in which she reported that since Jose’s return, he had been insulting her and acting out violently. She believed father had fabricated the domestic violence allegations against her to assert his dominance and control. The case was referred to mediation.

Following a hearing on June 29, 2016, the court adopted the mediator’s recommendation that mother be awarded sole physical and legal custody of Jose and the unborn child, with father to have visitation with Jose on Mondays, Wednesdays and Fridays, in addition to visits with the unborn child three times a week in the home of mother with mother present. Both parents were ordered to complete a co-parenting class, after which father could have additional visits. Father’s counsel requested a “statement of decision”[2] and the court explained that it found mother’s declaration to be credible and noted that father had not been in Jose’s life for a period of time when mother was in Idaho. The court also indicated its order was “temporary,” in the sense that custody was an issue that could be revisited at the next review hearing if father complied with the terms of the order.

“ ‘In an initial custody determination, the trial court has “the widest discretion to choose a parenting plan that is in the best interest[s] of the child.” [Citation.] It must look to all the circumstances bearing on the best interest[s] of the minor child. [Citation.] Family Code section 3011 lists specific factors, “among others,” that the trial court must consider in determining the “best interest[s]” of the child in a proceeding to determine custody and visitation: “(a) The health, safety, and welfare of the child. [¶] (b) Any history of abuse by one parent against the child or against the other parent. . . . [¶] (c) The nature and amount of contact with both parents.” ’ ” (Mark T. v. Jamie Z. (2011) 194 Cal.App.4th 1115, 1125.)[3]

Here, the evidence showed that Jose had lived for most of his life in his mother’s sole custody, but resumed visits with father when he returned to Sonoma County with mother at age three. At the end of one of those visits, father did not return Jose to mother as agreed, instead making false accusations of domestic violence that led to mother’s arrest. When Jose was returned to his mother’s care, he was violent and verbally abusive to her. Given these circumstances, the court did not abuse its discretion in awarding sole custody to mother.

Father argues the trial court did not state adequate reasons for awarding custody to a parent who has committed acts of domestic violence. (See Fam. Code, § 3011, subd. (e)(1).) This ignores that mother denied father’s allegations of domestic violence, and the trial court found mother to be credible.

The judgment is affirmed. Each side shall bear its own costs. (Cal. Rules of Court, rule 8.278(a)(5).)

NEEDHAM, J.

We concur.

JONES, P.J.

SIMONS, J.