Opinion
B291727
06-30-2020
In re Marriage of ANGUS and SIAN MITCHELL. SIAN MITCHELL, Appellant, v. ANGUS MITCHELL, Petitioner and Respondent.
California Appellate Law Group, Claudia Ribet, Susan Yorke and Robert A. Roth for Appellant. Law Offices of Honey Kessler Amado, James A. Karagianides, Christian A. Anstett and Honey Kessler Amado for Petitioner and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Los Angeles County Super. Ct. No. BD623803) APPEAL from an order of the Superior Court of Los Angeles County. Sheila Sonenshine (Ret.), Judge. Affirmed. California Appellate Law Group, Claudia Ribet, Susan Yorke and Robert A. Roth for Appellant. Law Offices of Honey Kessler Amado, James A. Karagianides, Christian A. Anstett and Honey Kessler Amado for Petitioner and Respondent.
Angus Mitchell and Sian Mitchell were married briefly and are parents to Dylan, born May 22, 2015 in Los Angeles, where the couple was residing. After Angus filed for divorce in July 2015, Sian desired to return to her native England with Dylan and sought primary custody. Although the court-appointed custody evaluator recommended that Sian be awarded primary custody, the family court awarded primary custody to Angus in Los Angeles. Should Sian decide to remain in Los Angeles, the court ordered alternatively that she and Angus would have joint physical custody.
Sian contends the family court relied on incorrect legal standards and improper criteria in evaluating whether the move would be in Dylan's best interests. She further contends the court committed prejudicial evidentiary error by permitting Angus to question whether Sian would move anyway if denied primary custody, and in permitting Angus to claim doctor-patient privilege concerning his addiction treatment while at the same time claiming his substance abuse problems were under control. We affirm.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
A. The Parties' Brief Marriage, Birth of Dylan, and Temporary Joint Custody
Angus is a 49 percent owner of John Paul Mitchell Systems (JPMS), a well-known hair care company founded by his father Paul Mitchell. Angus's father passed away when Angus was in high school, and Angus is currently partners in JPMS with the other co-founder of JPMS, John Paul DeJoria. Angus is very active in the company, and serves on the board of directors of JPMS. Currently, Angus is Art Director of Education and is involved with education on hair color and styling, and is a platform artist at style shows, as well as a motivational speaker.
Angus and Sian met in London at a hair styling show in October 2013. They spent about a week together, and next saw each other in March 2014, when they spent two to three weeks together. After that, they travelled to Los Angeles, and in May 2014 Angus proposed. After marrying in October 2014, the couple took up residence in Angus's house on Corsica Drive in Pacific Palisades. Dylan was born on May 22, 2015 in Los Angeles.
When Dylan was about six weeks old, Angus had his personal chef serve Sian with divorce papers. Thereafter, Sian took Dylan, left the house on Corsica Drive, and moved to a succession of hotels.
Three days after filing for divorce, Angus sought visitation with Dylan. Sian argued that Angus's visitation should be less than the four hours per day Angus requested because of Angus's history of substance abuse and his current drinking habits.
On July 14, 2015, the trial court issued a temporary custody order giving Sian primary custody and allowing Angus one hour of visitation per day. The court ruled that Angus would receive an additional hour if he hired a parenting coach. Angus hired Ellen Greek and Ilene Fletcher of Family Visitation Services (FVS) to act as parenting coaches. A month later, on August 19, 2015, the trial court increased Angus's visitation with Dylan to two hours per day.
The matter was first heard before Judge Pro Tempore Kenneth Black. After Judge Black's death in March 2016, the parties continued the proceedings with retired Judge Sheila Prell Sonenshine.
Angus acknowledged it was important for him to remain sober so that he could be part of Dylan's life. In October 2015 Angus started to use a Soberlink alcohol monitoring device to measure his alcohol consumption, and in December 2015, after he promised to confirm his sobriety with daily reports from Soberlink, the court increased Angus's visitation.
The parties selected Dr. Mary Lund to be their custody evaluator in November 2015. In January 2016, the trial court granted Angus overnight visitation. Two months later, in March 2016, Sian reconnected with a former boyfriend from England, Mark Creighton, whom she had known for eight years. Mark, a former soccer player, had recently separated from his wife, Mili, with whom he had two children, Cai and Cara, ages five and three. Mark visited Sian in Los Angeles, and in April 2016 they became romantically involved.
In the midst of his increasing custody of Dylan, Angus abruptly informed Sian by an email dated March 4, 2016 that he had been having "sobriety issues," although his recent Soberlink reports had been negative. At the time, Angus was not forthcoming about the details of the "sobriety issues," but submitted a negative drug test from the office of his physician, Dr. Damon Raskin. Sian immediately sought the appointment of a neutral monitor for Angus's visitation, requested suspension of overnight visits, and the institution of drug testing by Dr. Lund. After Sian's motion, the court changed the roles of Ellen Greek and Ilene Fletcher to that of custody monitors to report to the court as necessary to protect Dylan's interests. Angus's overnight visits were suspended.
That spring, Sian became pregnant, and informed Angus and Dr. Lund in July 2016 that she was expecting Mark's baby in March 2017. As a result of her new relationship with Mark, Sian wanted to move with Dylan to England. At this time, the parties agreed that Angus would no longer use Soberlink and would instead submit to weekly drug testing.
The parties agreed to travel plans and stipulated in December 2016 that Sian could take Dylan to England for a period of three weeks, but only after her newborn baby with Mark was at least four weeks old. Angus could take Dylan to Hawaii before February 22, 2017 and in July 2017.
Sian and Mark's daughter Halle was born in Los Angeles on February 23, 2017. In April 2017, Sian travelled to England and stayed for several weeks with Mark, Halle, Dylan and Mark's children (Cai and Cara) in Staffordshire.
At the time of trial in June 2017, the parties had a joint custody arrangement for Dylan of "2/2/3" that had been in place since February 2017. The schedule was working well for both parties. B. Trial Testimony
The schedule operates as follows:
Week 1: Angus has custody of Dylan from Monday at 10:00 a.m. until Wednesday at 10:00 a.m., Sian has custody of Dylan from Wednesday at 10:00 a.m. until Friday at 10:00 a.m., and Angus has custody of Dylan from Friday at 10:00 a.m. until the following Monday at 10:00 a.m.;
Week 2: Sian has custody of Dylan from Monday at 10:00 a.m. until Wednesday at 10:00 a.m., Angus has custody of Dylan from Wednesday at 10:00 a.m. until Friday at 10:00 a.m., and Sian has custody of Dylan from Friday at 10:00 a.m. until the following Monday at 10:00 a.m.;
Week 3: The parties continue to alternate thereafter.
The custody trial focused on Angus's past and present substance use, including his current alcohol consumption, and the emotional and economic stability of Sian's new relationship with Mark and their blended family.
1. Sian and Mark
Sian, who was born in England, has a large extended family there, consisting of parents, grandparents, aunts, uncles and cousins. Sian explained at trial that her plan with Angus "was always to spend time in Los Angeles and the U.K. because Angus knew of the extended family that I had there and enjoyed their company when he was with them." On the other hand, she has no business contacts in Los Angeles, no friends there, and no source of income. She did not want to delay the move until Dylan was older because it "was something she had to do."
Sian and Mark had rented a barn in Staffordshire, near where Sian grew up, and which is about an hour and a half from the home in Wales where Mili (Mark's ex-wife and the mother of Mark's two children, Cai and Cara) lives. The barn has four bedrooms, and Dylan would have his own room. Mark and Sian plan to buy a house when the custody dispute is resolved, but Sian currently does not have the funds to do so, and does not know whether Mark does.
Neither Sian nor Mark was working at the time of trial. Mark's employment history consisted of short-term employment coaching sports, as well as income from several tattoo parlors and barber shops; he receives a monthly income of about 3000 pounds from the tattoo parlor. Mark was last employed by a third party on October 2016 at the Southport Futbol Club as assistant manager for about six weeks. Before that, Mark worked at Wrexham Futbol Club for approximately two to three months. Currently, he has been offered a full-time job by Keele University to be head of men's futbol, with the position set to commence in September 2017. It is a seasonal job, lasting from September through April. Keele is located about 15 or 20 minutes from the house in Staffordshire.
Mark and Sian have not discussed how they are going to pay for things when they start living together, nor have they evaluated how all the children will get along. Mark's financial support of his ex-wife Mili has varied. From May 2016 forward, he reduced the amount of support; he gave her around 900 pounds from May until August of that year, but in November he began to send her 500 per month. As a result, she sold some of his gym equipment to raise money. In April 2017, Sian, Mark, Dylan and Halle stayed at Staffordshire. One night during the visit, Mark and Milli's daughter Cai became ill and vomited. Sian had some difficulties with Cai, and texted Mili, "Mili, I'm not very happy that you think it's okay for Cai to be exposed to an eight-week-old baby who hasn't had her injections when he is so sick." Further, although he claimed to get along well with Mili, Mark had called his children Cai and Cara "turds" and Mili "top cunt."
Sian was concerned with Angus's alcohol use during the marriage. Sometimes his consumption was excessive and it would change his behavior and his demeanor. He would sometimes start drinking before lunch and finish just before they went to bed. After Dylan was born and she was still in the hospital, Angus had his assistant bring vodka and wine to the hospital.
2. Angus
(a) Drug Use History
Angus was very close to his father, and after his father died when Angus was in his late teens, Angus began to use drugs. He used drugs throughout his self-described "roaring 20s" as a means to escape family turmoil. At age 33, Angus received a "wake up call" when he set himself on fire while intoxicated with cocaine. He spent three weeks in the hospital.
His first trip to rehab was in 1989 at age 19, to avoid going to jail. In his 20s, in approximately 2000, Angus took a leave of absence from JPMS, and went to rehab as a result of his business partner De Joria's concern about his well-being. Angus has been to Promises in Malibu twice, first in 2000 and another time around 2004 to 2005, which was the last time. Sometime around 2006 or 2007, Angus made the decision to stop using illegal drugs.
During the temporary custody arrangement, Angus made two family trips with Dylan where he consumed alcohol. In January 2017, he went to San Diego with Dylan and Ellen Greek (one of the two parenting coaches/ custody monitors). They stayed at a hotel, and while he was there, he met his first wife, Michelle Chindre Mitchell, for dinner and consumed wine. While he was at dinner, Dylan was in the room with Ellen Greek. The next month, Angus went to Hawaii with Ellen and Dylan. They stayed at the Disney Hotel for part of the time, and he had a beer at lunch. Another day, he had two beers one afternoon; at the time, Dylan was in the room with Ellen. When Dylan is in his custody pursuant to the 2/2/3 arrangement, Angus does not consume alcohol.
While Angus used the Soberlink (between September 2015 and March 2016), he tested himself four times a day, from 7 a.m. to 9 p.m. On several occasions he drank alcohol after his last Soberlink test of the day. He admitted he was not honest on Dr. Lund's custody questionnaire by claiming he had not used drugs over the last 12 years.
(b) Current Commitment to Health and Work
Angus works out with his trainer Carlos Gomez every day for two hours, from 7:00 to 9:00 Monday through Saturday at Angus's house in the Palisades, where he has a gym. Gomez has known Angus to arrive on time and he does not have trouble with his workouts. Gomez saw Angus drinking alcohol at his Super Bowl party in 2017, but he has not seen Angus drink when Dylan is around, nor has he seen Angus suffer ill effects from alcohol consumption.
DeJoria, Angus's business partner, praised Angus's work performance, calling it "excellent." Angus was the spokesman for JPMS's men's line of products, and was a very good platform artist. In the last five years, Angus had never failed to honor any of his work commitments.
(c) Parenting
Angus has been very hands-on in parenting Dylan. Although he has a nanny for Dylan, he instructed the nanny that he wanted to be the one to put Dylan to bed and to get up in the middle of the night if Dylan had a problem. Angus had his home professionally baby-proofed.
Angus has noticed positive changes in Dylan's behavior since the 2/2/3 visitation schedule went into effect. Angus explained that, "[Dylan is] very explorative in the house, he knows that it's his home, his things, his toys, he's familiar with [the] front yard, the backyard, he's very relaxed, he's very easy to go down to bed, he sleeps through the night 98% of the time as do most children around this age, and he's just a very happy child." When Dylan is in his custody, Angus spends most of his time with him.
Dr. Jay Gordon, Dylan's pediatrician, had no concerns about Angus's competence as a parent, and Dylan was meeting his developmental milestones.
According to Ellen Greek, who started working as a parenting coach when Dylan was two months old, she helped Angus get more comfortable bathing Dylan and playing with him. Angus was very receptive to her advice, taking appropriate care of Dylan, dressing him, changing diapers, feeding him, and playing with him. Greek described Angus as "a loving, caring, totally responsible dad" because "he is there all the time, he is there 100% physically, mentally, he's there." She did not observe Angus do anything with Dylan that concerned her, and did not observe him to be intoxicated while around Dylan.
Angus's first wife, Michelle, was married to him for three years in 2010 to 2013. Michelle had a daughter by a prior relationship, Mee, who lived with them 80 percent of the time during the marriage, a period when Mee was between three and six years old. Michelle had no concerns about Angus's drinking or his ability to care for Mee, and found Angus to be a "steady, even keel." Angus continues to see Mee on a regular basis, and currently Dylan and Mee see each other frequently.
According to Angus, he and Sian co-parent cooperatively. They communicate often, do not disagree about Dylan's medical care, food, or activities, and exchange information about Dylan. When Sian was in the hospital giving birth to Halle, Angus sent her flowers and pictures of Dylan. Most of the time they are friendly, but in June 2017, during a transition, Sian arrived with Mark to pick up Dylan. Angus overheard Sian say to Dylan, "Daddy and I have a nice day planned out for you." Angus was upset to hear Sian refer to Mark as "Daddy" in Dylan's presence. Dylan had learned to refer to Mark as "Daddy." Sian, however, did not believe she was being insensitive to Angus.
(d) Sobriety Issues, Fall 2015 and Winter 2016
In fall 2015, Angus began a relationship Tally Rossi, who worked for JPMS. While seeing her, he did Ecstasy with her on three occasions, the first time in August 2015. Dylan was not with him on any of these occasions. Angus believes it was a poor decision on his part, and since that time he has not used any illegal drugs.
Tally Rossi saw Angus drink alcohol each of the 20 or more times they were together. She did not see Angus consume alcohol when Dylan was around, but she never stayed overnight at Angus's house when Dylan was there. Angus would use the breathalyzer before he used the Soberlink, but she did not see him tamper with the Soberlink.
Angus stopped seeing Tally in January 2016 because he wanted to focus on Dylan. Angus gave Tally $50,000, but denied giving Tally the money so she would not talk to Sian about his Ecstasy use. "I wanted her to land on her feet, and so I just offered her some money . . . . I offered her 50,000 which is what she makes a year or what she made a year at Paul Mitchell." Tally later asked him for more money, but he did not give it to her.
At trial, Angus explained that his early March 2016 email to Sian about having sobriety issues referred to his Ecstasy use. "Well, when I said that I had sobriety issues . . . it was me coming clean to the court. I know that Tally was threatening to go to Sian and I felt that I had either—I had a couple options. Option 1 would just be to sit and hope that she didn't say anything, and option 2, just be the first one to put it out there and let Judge Black know at that time."
3. Attachment and the Challenges of a Blended Family
Due to Dylan's young age at the time of the parties' separation, his ability to form a secure attachment to both parents during his early years was a critical developmental issue. Several experts testified on the importance to a child of Dylan's age of forming proper attachment to his parents.
(a) Michael Lamb, Ph.D., a developmental psychologist, explained that attachment is the initial relationship between an infant and his or her parents, and "by definition is something that evolves out of the interactions between the child and the parent. It involves the child coming to understand that those people who respond to it are people that the child can count on, and through those repeated instances of observing that those people are reliable and trustworthy, the child develops a trusting relationship which we call attachment."
According to Dr. Lamb, separations between parent and child are often repeated in custody arrangements, and the repetition increases the degree of stress for the child, making it more difficult for the child to recalibrate the relationship with each parent. This tends to undermine the strength of the relationship and its centrality in the child's life. Further, children find it burdensome when they have to travel long distances to be with one of the parents.
Dr. Lamb believed that the controlling factor in the quality of the parent-child relationship is not the number of days the child spends with each parent, but the frequency of the disruptions. For children under the age of five, it is best to limit separations to, at most, two to three days at a time.
Dr. Lamb acknowledged that proper development of attachment can be affected where a parent has a substance abuse disorder.
(b) Dr. Constance Ahrons, an expert on blended families, explained that a blended family is one where each person has a child of their former marriage and they also have a child together. "The more people you have, the more issues you have about bonding, about kinship, about loyalty, about conflicts, and the more people that are there—and the more people that the child has to relate to." Such a family has more difficulty in bonding together and they have a higher redivorce rate.
She explained that a child that has been an only child may, in the new blended family, have several brothers and sisters related in different ways, creating a sense of loss for the child in that the child is no longer the sole focus of attention. Children who are not in the stepfamily household all the time question what went on while they were gone. They have trouble fitting back into the family if they have been gone for a few weeks. Also, a child in a blended family must establish a relationship with the stepfather, whom the child may perceive as giving more attention to his children. The child will also have to establish relationships with stepsiblings and any half-siblings. These competing relationships may create conflicts in loyalty for the child.
4. Dr. Mary Lund's Custody Evaluation
In January 2016, Dr. Lund began her custody evaluation. In conducting her evaluation, she made the assumption that Sian would be living in England and Angus would be living in Los Angeles. Her final report was dated November 22, 2016, and at the time of trial, neither party had requested an updated report in spite of the change of the custody schedule to a 2/2/3 rotation and the February 2017 birth of Halle.
Dr. Lund recommended that Sian be awarded primary custody. The basis of her conclusion was that, in terms of personality issues and parenting profile, she found fewer risks for Dylan with Sian being the primary parent than with Angus. She did not consider her recommendation a close call.
Dr. Lund considered the following factors:
(a) Attachment
She found that wherever Dylan located, he would suffer diminution of his attachment to one of the parents and could have a short-term and long-term reaction. The risk to Dylan, age two, was that geographic distance from his parents would interrupt his attachment formation. "He's too young to remember easily and consolidate a sense of security with long periods of not seeing one of his parents, so that's considered a very high risk factor because he's so young." However, Dylan has a strong attachment to both parents, reducing his risk. He has a very easy temperament, and he would be a resilient child based on temperament alone.
(b) Sian and Mark
With respect to psychological stability, Dr. Lund found the risk was low to moderate for Sian. Sian's "behavior in the evaluation sessions was within the norm of most people in custody evaluations. She was able to manage her emotions, [and] when she did show emotion it was appropriate, she could answer challenging questions, [and] she showed insight to some extent in her behavior." To Dr. Lund, the biggest risk factor for Sian was the "whirlwind" nature of her relationship with her new partner, Mark. Sian's relationship with Angus had begun in the same way. Dr. Lund lacked sufficient information about Sian's relationship with Mark or its stability to rule out potential problems in their parenting of Dylan. Therefore, Dr. Lund concluded that Sian's relationship with Mark was a moderate risk factor.
However, she believed that Sian and Mark demonstrated "positive coping skills in terms of their ability to talk about conflicts and support each other and realistic attitudes towards the challenges ahead of them. . . . [I]t's hard to predict [the success of their blended family] because they married—or they got together under unusual circumstances. I don't think they would have been forming a partnership so quickly had she not become pregnant, and I cannot predict with certainty what the future holds for them in terms of their relationship."
Regarding Sian's reasons for relocating, Dr. Lund concluded that "although [Sian's] desire to have social support in England from her family and friends there could be seen as putting her needs above Dylan's," Dr. Lund "couldn't say that it was what is sometimes termed 'bad faith,'" meaning "an intentional desire to frustrate contact with the other parent." Also, Sian's reasons for wanting to relocate to England were strengthened by her pregnancy with Mark's child.
Because there was limited information about Mark and his separate children's relationship with Dylan, Dr. Lund recognized that she was unable to fully explore the issue of the blending of the two families during her evaluation. Also, she admitted that it was hard to predict how Sian would balance the care of Halle (her child with Mark) and her care of Dylan (her child with Angus) in terms of her commitment to travel to the U.S. with Dylan for his visits with his Angus until Dylan is able to travel on his own.
However, Dr. Lund concluded that the fact Mark had called his ex-wife Mili "top cunt" was abusive and showed poor emotional control. If his co-parenting relationship with Mili is poor, that would increase the stress factor of the blended family. Further, if Sian's relationship with Mark was not stable, Dylan could lose Mark as a secondary attachment figure, and the emotional stability of the home environment would be affected. Finally, Mark's employment situation would create stress because it could cause conflict between Mark and Sian, and could lessen their ability to concentrate on Dylan's needs.
(c) Angus
Dr. Lund rated Angus as having a moderate to high risk of instability due to his history of substance abuse, primarily based on his continued view that he could consume alcohol safely. Although his relationship with alcohol and drugs had improved over the last 10 years, and he functioned well with his current healthy lifestyle and help from his support staff, Dr. Lund remained concerned that he might relapse, though she could not predict that outcome with any certainty. Dr. Lund also believed that Angus had less-than-average insight into his emotions, which might give him difficulty in managing stressful situations that might arise in his care of Dylan.
Dr. Lund found several factors in support of Angus's level of stability: Angus had meaningful work that he enjoyed, had social support and financial resources, had not had any serious behavioral consequences from use of alcohol or drugs in the last 10 years, and, although he had not been in formal psychotherapy or alcohol relapse prevention, he was pursuing a healthy lifestyle, including activities such as yoga and athletic training.
(d) Co-parenting
Dr. Lund found Angus and Sian very comparable in their parenting. Both were excellent hands-on, responsive parents to Dylan. They both understood his needs and demonstrated experience in dealing with them.
Sian's behavior, thought processes, emotional control, ability to communicate, and ability to problem solve would make her a good parent to an older child. She would be able to communicate well with the child, negotiate limits, and be consistent so that the child will internalize emotional control and appropriate behavior.
Dr. Lund believed Angus would continue to be an affectionate, stimulating parent as Dylan grew. However, she had concerns about Angus's ability to communicate with an older child, and to tolerate the emotional challenges presented as he grew less loving and pleasing. She thought that Angus might have difficulty negotiating limits and enforcing them consistently.
Dr. Lund believed that Dylan is attached to both parents. Although Dr. Lund predicted a high risk of instability if Angus were the primary parent and Sian moved to the U.K., such risk would be ameliorated if they both lived in proximity, as Dylan would see each parent frequently. If there were problems with either parent's parenting, the other parent would have a solid relationship with Dylan and could immediately care for Dylan more of the time.
(e) Mili (Mark's ex-wife)
Dr. Lund wanted to speak to Mili, Mark's ex-wife, in order to obtain more information about Mark, his parenting style, and the nature of his relationship with Mili and their co-parenting of Cai and Cara. However, Sian claimed that Angus had offered Mili money for her support in the custody dispute. Therefore, Sian dissuaded Mili from taking part in the custody evaluation by sending Mili numerous pointed text messages. Some examples:
"Your call or email will be documented in the report and you are opening yourself up to be involved when I'm saying you shouldn't be."
"If you can't respect my wishes that you not call the evaluator . . . , then I'll have to do something about it."
"Mili, after your text to myself and Mark and no response, I had no choice but to inform my attorneys this morning about these communications. I'm not sure you understand how serious this case is. I'm asking you not to call the office of Dr. Lund or speak to anyone in regard of this case. Because you don't seem to respect my request in a case that has nothing to do with you I suggest you speak with one of my attorneys."
Dr. Lund did not know of the text messages until after she completed her custody evaluation. In her testimony, she conceded that if she had known about Sian's texts to Mili, she might have increased her rating of Sian's psychological instability, and might have questioned her credibility. Dr. Lund explained the risk factor suggested by the texts was "starting to get into the territory of a very potentially difficult psychological climate at least at this time." Also, the texts raised the risks for stability in the blended family, because of the conflict between Mark and Mili. Finally, Dr. Lund conceded that Halle had not been born at the time of her evaluation, and she had no idea how Dylan had reacted to Halle's birth.
5. Experts on Angus's Current Alcohol Use
Several experts opined on whether Angus had an alcohol use disorder, and whether he could engage in "controlled drinking" without relapse into the substance abuse that had plagued him during his 20s and 30s.
Arthur T. Horvath, a clinical psychologist specializing in the treatment of addictive behavior, testified that Angus did not have a current alcohol use disorder, as defined by the DSM-V. The DSM-V defines alcohol use disorder (AUD) as "a problematic pattern of alcohol use that results in clinical impairment or distress if a sufficient number of 11 designated criteria have been met within a one-year time period." Dr. Horvath explained, "It's not just drinking, it's drinking that causes distress or impairment that is the definition of an alcohol use disorder."
Dr. Horvath met with Angus for a total of three and one-half hours. He did not perform any psychological tests on Angus, nor did he confer with Angus's personal physician. He was aware of Angus's Ecstasy use, DUIs, and stints in rehab. Angus told Dr. Horvath that he met Dr. Raskin at Promises in Malibu and had an ongoing medical relationship with him.
In Dr. Horvath's opinion, it is not necessary to abstain in order to resolve an alcohol use disorder. According to Dr. Horvath, "the scientific literature has been clear for over five decades that moderate use is possible in a sustained way even with a prior history of problems, and in my own clinical practice I've repeatedly seen people who despite significant problems previously now engage in moderation." The question of moderation is based upon whether the person is experiencing distress and impairment, not upon the number of drinks the person consumes.
Dr. Horvath asserted that in spite of Angus's history of alcohol and substance abuse, Angus could control his drinking and engage in moderate use. As a result, Dr. Horvath believed Angus's risk of future alcohol abuse equated with that of an average person. Dr. Horvath was "fully confident about my opinion that [Angus] is currently moderating and will be able to do so in the future."
According to Dr. Horvath, Angus's history disclosed that "with respect to substance use, specifically in his teens he experimented with use of multiple substances; in his 20s he had significant substance problems, diagnosable problems; beginning in his 30s those problems began to resolve; and by his 40s those problems had resolved or entirely or nearly so." This history included "three treatment episodes, ongoing care with at least one healthcare practitioner, [and] multiple 12-step meetings," as well as conversations with friends and family.
Dr. Stan Katz, a clinical and forensic psychologist, explained that controlled drinking "is a methodology by which people who usually have had a problem with alcohol learn how to actually not abuse alcohol and not to misuse it. The theory is that if one controls drinking that one will not graduate to more intensive drinking and to problematic drinking." For many people controlled drinking is a success, and for many it is not.
Dr. Katz met with Angus in May and June 2016. Dr. Lund gave him Angus's history, and asked for his opinion about whether Angus was an active alcoholic or had the potential for a relapse into active alcoholism or other substance abuse. Dr. Katz recalled that Angus did not describe himself as an alcoholic, and felt that he could control his drinking. However, Dr. Katz reached the conclusion Angus had a potential to become readdicted or to relapse into a full addiction given his history. Angus admitted to Dr. Katz that he drank while on vacation with Dylan and told Dr. Katz he was not using any other illegal drugs or abusing prescription drugs. When he did his evaluation of Angus, Dr. Katz did not know that Angus had used Ecstasy during his relationship with Tally Rossi. Had he known that fact, it would have changed his evaluation of Angus's credibility and of whether Angus had a current alcohol use disorder.
Dr. Katz suggested that Angus should continue refraining from using alcohol and other illegal substances during the time he is with Dylan, and a nanny should be present as a safeguard. Dr. Katz also suggested that Angus would profit from 10 sessions with a substance abuse expert, to help him understand how his substance abuse issues might ultimately affect Dylan.
Richard Sandor, M.D., a substance abuse expert who testified for Sian, stated that a controlled drinking study of 20 persons with AUD showed that only one study participant was still maintaining controlled drinking after 10 years. Dr. Sandor believed that if a person has met the criteria for substance use disorder, the safest path to recovery is abstinence. Those previously diagnosed with AUD who continued to use alcohol were at very high risk of future alcohol problems.
6. Angus's SCRAM Proposal
At the close of trial, Angus offered to wear a SCRAM device (Secure Continuous Remote Alcohol Monitor) to monitor his alcohol use. He proposed to wear the device for a year and undergo drug testing.
7. Statement of Decision
The court issued a detailed statement of decision, which we discuss below, in which it considered the factors in Family Code section 3011 and In re Marriage of LaMusga (2004) 32 Cal.4th 1072, 1101 (LaMusga), and concluded that it was in Dylan's best interest to award primary custody to Angus.
All further undesignated statutory references are to the Family Code.
At the outset, the court phrased the central issue and the applicable standard: "At the heart of this case, is Sian's request to relocate with Dylan from Los Angeles to the 'Midlands' region of England, in the United Kingdom ('UK'). Angus opposes Sian's request to relocate with Dylan and requests primary custody. If Sian elects to remain in Los Angeles, Angus proposes the parties continue to share equal physical custody of Dylan. [¶] Because this is a 'move-away' case, the Court assumes Sian is relocating to the UK and Angus is remaining in Los Angeles. [Citation.] There is no dispute regarding legal custody. The parties agree to Dylan's joint legal custody. [¶] This order is an initial custody determination, requiring the Court to 'look to all the circumstances bearing on the best interests of the minor children.' [Citation.] Where there is no existing final custody order, the best interest analysis is applied regardless of how the preexisting custody arrangement is characterized."
A. Custodial Arrangement and Nature of Contact
The court found that currently the parties shared 50/50 physical custody of Dylan, and Dylan transitioned well between homes. Dylan was securely attached to both parents and both parents provided nurturing home environments.
At Angus's home, Dylan saw his paternal grandmother, Angus's nine-year-old stepdaughter Mee from his marriage to Michelle Chindre, as well as his half-sister Halle. Specifically, the court found that the social arrangements in Angus's Los Angeles home were more stable than those of Sian's U.K. home with Mark, particularly since Dylan's contact with the U.K. consisted of two trips totaling several weeks. Sian's family had spent considerable time visiting with Dylan, but mostly in Los Angeles.
B. Distance of the Move
The distance between Sian's proposed home in the U.K. and Los Angeles was considerable—over 5,000 miles and eight time zones. Door-to-door, it took 15 hours to travel between Angus's home and Sian's proposed residence. If Dylan were relocated, he would travel this distance frequently, causing regular interruptions to his day-to-day schedule.
The court observed that the attachment experts, Drs. Lamb and Ahrons, both testified that a move could severely affect Dylan's attachment to his parents. A healthy attachment permits the child to see his or her parents as trustworthy and predictable. The current custody arrangement, 2/2/3, permitted Dylan to see both parents as trustworthy and reliable.
C. Co-Parenting
Both parties had cooperated with each other in co-parenting. Angus did not speak negatively of Sian in Dylan's presence, and Angus was supportive of Sian during Halle's birth, sending her flowers and taking care of her house. On the other hand, Sian referred to Mark as Dylan's "Daddy," both in front of Dylan and in front of Angus. The court found such conduct had the effect of undermining Angus's relationship with Dylan, and evidenced Sian's inability to put Dylan's best interests first.
The trial court did not agree with Sian's assertion that she and Angus had intended to reside part-time in the U.K. Her assertion was contrary to the prenuptial agreement, and contrary to Angus's testimony. Further, Sian put her interests above Dylan's in that Sian refused to wait until Dylan was older to move. Sian reasoned that moving was "something she had to do" and would result in a "happy mom, happy baby." The court noted, however, that Angus had also put his interests above those of Dylan by refusing to travel to England to see Dylan during Sian's 2017 visit.
D. Blended Families
Regarding blended family issues, the trial court rejected Dr. Lund's conclusion that there were fewer risks for Dylan with Sian being the primary parent rather than with Angus. The trial court instead found that Angus's home presented the lower risk, because Dylan would be the only child there. On the other hand, Sian's proposed household was moderate to high risk because of Sian and Mark's recent and uncertain relationship, their economic instability, and their lack of communication regarding future finances. Further adding to the fragility of Sian and Mark's new household was the number of children involved from three separate relationships involving Sian and Mark: Cai and Cara from Mark's prior marriage; Dylan from Sian's prior marriage; and Halle from Mark and Sian's relationship. These children, who are newcomers to the blended family, had yet to establish relationships with each other, much less establish a relationship with the most recent potential newcomer, Dylan. Intensifying the difficulty of blending the families were Mark and Mili's recent divorce, Sian and Mark's hostile relationship with Mili, and the small amount of time that Dylan and the other children in Mark and Sian's families have been together. The court concluded these factors made it likely Dylan would be subject to more stress residing with Sian than with Angus. The court also criticized Sian and Mark for dissuading Dr. Lund from speaking with Mili, finding that their deception further added to its concern regarding how well their blended family would function.
E. Angus's Substance Use
The court found that there was no evidence that Angus's alcohol consumption affected his care for Dylan or caused any harm to Dylan. Angus's ex-wife Michelle testified that Angus drank alcohol but it never affected his behavior. Ellen Greek (the parenting coach/custody monitor) and Dylan's pediatrician confirmed that Angus never exhibited problems with alcohol when caring for Dylan. In addition, Angus was pursuing a healthy lifestyle with diet and exercise, and his business partner DeJoria praised Angus for his consistently exemplary performance at JPMS. As the court noted, "[P]eople who see Angus on a regular basis confirmed Angus is hard working and reliable."
The court rejected as unfounded Dr. Lund's testimony that Angus's alcohol consumption could jeopardize his ability to care for Dylan, and also rejected as unfounded Sian's claims that Angus tampered with the Soberlink device. Although Angus owned another breathalyzer device, the evidence showed he complied with the Soberlink protocol.
The court found Angus's use of Ecstasy concerning, and considered it a risk to Dylan. Further, Angus was not forthcoming about his Ecstasy use, and was not honest on Dr. Lund's questionnaire about past drug use. He did not come forward until he feared his Ecstasy use would be discovered. However, in the context of Angus's substance use history, the court found Angus's episodic Ecstasy use did not make him a habitual, frequent, or continual user within section 3041.5. The court similarly found Angus's likelihood of relapse low, crediting the testimony of Drs. Horvath and Katz that Angus was no more at risk for problem drinking than the average person.
Section 3041.5 provides in relevant part that "[i]n any custody or visitation proceeding . . . , the court may order any person who is seeking custody of, or visitation with, a child who is the subject of the proceeding to undergo testing for the illegal use of controlled substances and the use of alcohol if there is a judicial determination based upon a preponderance of evidence that there is the habitual, frequent, or continual illegal use of controlled substances or the habitual or continual abuse of alcohol by the parent . . . . The results of the testing may not be used for any purpose, including any criminal, civil, or administrative proceeding, except to assist the court in determining, for purposes of the proceeding, the best interest of the child pursuant to Section 3011, and the content of the order or judgment determining custody or visitation."
The court rejected Dr. Lund's overall conclusion that Sian should be granted primary custody. In particular, the court found the following flaws in Dr. Lund's analysis: Dr. Lund overstated Angus's risk of relapse; failed to appreciate the complexity of issues with Sian and Mark's blended family; did not have the benefit of the text messages between Mili and Sian and Mark, and hence was unable to interview Mili; understated the risk to Angus's relationship from Sian's conduct in putting her new family before Angus by calling Mark "Daddy." The court further found Dr. Lund's report was stale—she last saw the parties in October 2016 and consequently her report did not consider Angus's overnights with Dylan or the effect of the birth of Halle.
The court concluded that there was minimal risk to Dylan from Angus's alcohol use, but there was a greater risk from Sian's blended family as well as the loss of regular contact with Angus.
D. Conclusion and Custody Order
In conclusion the court stated: "The Court agrees with all the experts' testimony, it is in Dylan's best interest for Sian and Angus to live near one another and share custody of Dylan with an equal time share. [¶] However, the Court must assume Sian is relocating, and select a primary parent. Based on the evidence, the Court finds if Sian relocates to the UK, it would be in Dylan's best interest to reside primarily in Los Angeles with his father. [¶] Sian's request to relocate with Dylan to the UK is denied. Angus is awarded primary custody of Dylan in Los Angeles."
As exhibits incorporated into the permanent custody order, the court appended a time share schedule governing the parents' time with Dylan, Angus having primary custody in Los Angeles and Sian being granted time with Dylan in Los Angeles and the U.K. As a term of his primary custody, assuming Sian relocated to the U.K., the court ordered Angus to wear a SCRAM alcohol detection device, and to submit to weekly drug tests for a one-year, the period for both to be extended if Angus tested positive.
Also as part of its order, the court stated: "If Sian elects to remain in Los Angeles, she shall serve written notice on Angus within forty-five (45) days following notice of entry of this Judgment. If Sian remains in Los Angeles, Angus and Sian shall share physical custody of Dylan under the orders" in a separate appended exhibit. This alternative included a 2-2-3 time share, the same as the preexisting temporary custody arrangement.
Finally, the court stated that "this Custodial Order shall be deemed a final judicial custody determination for purposes of the changed circumstances rule."
DISCUSSION
I. The Trial Court's Custody Order is in Dylan's Best Interests
Sian principally contends that the court's reasoning and custody order (which contained a joint-physical-custody alternative if Sian remained in Los Angeles) wrongfully sought to preserve the status quo of joint custody in Los Angeles, and in so doing, improperly sought to coerce Sian to remain in Los Angeles. The court reached this result, she argues, by failing to apply the correct legal criteria, which required the court to assume that Sian would move to England regardless of the custody decision. Sian's characterization of the court's reasoning and custody order is not supported by the record.
A. The Legal Standards
In an initial custody determination, such as here, the trial court has the "widest discretion to choose a parenting plan that is in the best interest of the child." (§ 3040, subd. (b); In re Marriage of Burgess (1996) 13 Cal.4th 25, 31-32 (Burgess); Ragghanti v. Reyes (2004) 123 Cal.App.4th 989, 996 [trial court used correct "best interest" analysis where parties stipulated there was no existing final permanent custody order].) Section 3011 lists specific factors that the trial court must consider in determining the child's best interest: (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; and (d) the habitual or continual illegal use of controlled substances, or the habitual or continual abuse of alcohol. (§ 3011, subd. (a); see also Burgess, supra, 13 Cal.4th at pp. 31-32.)
Where, as here, a contemplated relocation and permanent custody order will change a temporary joint custody arrangement, the trial court must approach the custody decision de novo, determining afresh what primary custody arrangement is in the child's best interest. (§ 3087; Burgess, supra, 13 Cal.4th at p. 40, fn. 12; LaMusga, supra, 32 Cal.4th at p. 1089.) The court must assume the joint custodial parent making the relocation request will move regardless of court's decision. (Mark T. v. Jamie Z. (2011) 194 Cal.App.4th 1115, 1124 (Mark T.).) "The joint custody moving parent does not have the presumptive right to change the child's residence, and bears no burden of proving the move is essential or imperative. [Citation.] Nor does the opposing nonmoving parent bear the burden of showing substantial changed circumstances require a change in custody or that the move will be detrimental to the child." (Niko v. Foreman (2006) 144 Cal.App.4th 344, 363-364 (Niko).)
The Niko court commented that "[t]he value in preserving an established custodial arrangement and maintaining stability in a child's life is obvious." However, the court further noted that "when the status quo is no longer viable . . . , a court must review de novo the best interest[s] of the child. It can fashion a new time-share arrangement for the parents." (Niko, supra, 144 Cal.App.4th at p. 364.) The de novo review that applies in a joint parenting situation is, "'in effect, a "reexamination" of the basic custody arrangement' because one parent's relocation in a joint physical custody arrangement will necessarily disrupt the status quo, and will require the court to modify the existing custody arrangement. [Citation.]" (Mark T., supra, 194 Cal.App.4th at p. 1126.) "The question for the trial court is not whether the parent may be permitted to move; the question is what arrangement for custody should be made [if and when the parent moves]. [Citation.]" (Ruisi v. Thieriot (1997) 53 Cal.App.4th 1197, 1206; Mark T., supra, 194 Cal.App.4th at p. 1126.) A court misapplies this rule where it denies a move-away request to preserve the status quo, or to coerce the parent desiring to move away to abandon their plans. (Mark T., supra, 194 Cal.App.4th at p. 1128.)
In sum, the question for the trial court here may be framed as follows: what custody arrangement would be in Dylan's best interests assuming that Sian would move to the U.K. regardless of whether her request to relocate Dylan were granted. (See Mark T., supra, 194 Cal.App.4th at p. 1128.) In answering that question, the record confirms that the trial court used the proper analysis, and did not abuse its discretion in denying Sian's request to relocate.
B. The Custody Order Properly Applied Section 3011 and the LaMusga Factors
At the outset of its analysis in its statement of decision, the trial court properly articulated the standard to be applied: the heart of the case was Sian's request to relocate with Dylan from Los Angeles to the U.K.; Angus opposed the move and requested primary custody, or if Sian chose to remain in Los Angeles, equal physical custody; the court was required to assume Sian would move to the U.K.; and in that context, the court had to "'look to all the circumstances bearing on the best interests of the minor children.' [Citation.] . . . regardless of how the preexisting custody arrangement is characterized."
In issuing its custody order, the court again properly phrased the issue: "The Court agrees with all the experts' testimony, it is in Dylan's best interest for Sian and Angus to live near one another and share custody of Dylan with an equal time share. [¶] However, the Court must assume Sian is relocating, and select a primary parent. Based on the evidence, the Court finds if Sian relocates to the UK, it would be in Dylan's best interest to reside primarily in Los Angeles with his father. [¶] Sian's request to relocate with Dylan to the UK is denied. Angus is awarded primary custody of Dylan in Los Angeles."
Nonetheless, Sian contends that the trial court's reasoning betrays reliance on an improper standard. But Sian's characterization is belied by the record.
In Burgess, supra, 13 Cal.4th 25, the court stressed that "we have repeatedly emphasized [that] the paramount need for continuity and stability in custody arrangements—and the harm that may result from disruption of established patterns of care and emotional bonds with the primary caretaker—weigh heavily in favor of maintaining ongoing custody arrangements." (Id. at pp. 32-33.) Further, section 3020 provides, "[t]he Legislature finds and declares that it is the public policy of this state to ensure that children have frequent and continuing contact with both parents after the parents have separated or dissolved their marriage, . . . and to encourage parents to share the rights and responsibilities of child rearing in order to effect this policy, except where the contact would not be in the best interest of the child, as provided in [Family Code] [s]ection 3011." (§ 3020, subd. (b).)
However, the Family Code "specifically refrains from establishing a preference or presumption in favor of any arrangement for custody and visitation," and thus section 3020 cannot be read to constrain the court's jurisdiction in fashioning a custody order in the child's best interests. (Burgess, supra, 13 Cal.4th at p. 34.) Instead, the court may consider "the extent to which the minor children's contact with their noncustodial parent will be impaired by relocating. In so doing, however, it is not restricted to any particular formula for contact or visitation; nor is it required to make a custody determination that preserves the predissolution status quo." (Id. at p. 36.)
The trial court must consider all the relevant factors in deciding whether a change in custody would be in the child's best interest. (LaMusga, supra, 32 Cal.4th at p. 1097; Marriage of C.T. & R.B. (2019) 33 Cal.App.5th 87, 106-107.) Among the factors courts ordinarily should consider in assessing whether the children would suffer detriment from the relocation, and in turn whether custody should be modified, are:
(1) the child's interest in stability and continuity in the custodial arrangement;
(2) the distance of the move;
(3) the child's age;
(4) the child's relationship with both parents;
(5) the relationship between the parents including, but not limited to, their ability to communicate and cooperate effectively and their willingness to put the children's interests above their individual interests;
(6) the child's wishes if they are mature enough to make that inquiry appropriate;
(7) the reasons for the proposed move; and
(8) the extent to which the parents currently are sharing custody. (LaMusga, supra, 32 Cal.4th at p. 1101.)
These factors are not exhaustive. Bright line rules in child custody cases are inappropriate and each case must be evaluated on its own facts. (Jane J. v. Superior Court (2015) 237 Cal.App.4th 894, 905.) Finally, if the court properly considers the applicable "best interest" factors, the weight the trial court gives each of those factors likewise lies within its broad discretion. (LaMusga, supra, 32 Cal.4th 1101.)
Here, as detailed in our summary of the trial court's analysis in our PROCEDURAL AND FACTUAL HISTORY, the trial court thoughtfully analyzed the lengthy evidentiary record, and made evidentiary findings supported by the record. The court expressly assumed that Sian would move to the U.K., considered the cluster of factors relevant to this case under section 3011 and LaMusga in light of that presumption, and determined that it was in Dylan's best interests to remain in Los Angeles in Angus's primary care. There is simply no suggestion of improper analysis or abuse of discretion in the trial court's reasoning.
The premise of Sian's attacks on the trial court's ruling is that despite paying lip service to the proper standard, the court improperly focused on preserving the status quo temporary arrangement rather than viewing that arrangement as impossible in light of the presumption that Sian would move to the U.K. regardless of whether she relocated Dylan. As part of that plan, Sian asserts, the trial court also tried to coerce her to remain in Los Angeles by including an alternative of joint physical custody if she remained in Los Angeles. However, Sian grossly misconstrues the record.
It is true that the court placed importance on the status quo custody arrangement, but it did so in the context of the importance at Dylan's young age of forming stable attachments to both parents, which would be facilitated by regular interaction with both parents. That, he was bonded with both parents as a result of the current arrangement, and that disrupting that bond with Angus by granting Sian's request for primary custody in England, was a proper consideration because of its effect on Dylan's best interests. (See Burgess, supra, 13 Cal.4th at pp. 32-33; Niko v. Freeman, supra, 144 Cal.App.4th at p. 364 [value of preserving status quo and maintaining stability in a child's life is "obvious"].) The court did not use this factor in a way that skirted the appropriate inquiry into Dylan's best interests in light of the assumption that Sian would move to the U.K., making the current custody arrangement impossible. To the contrary, the court considered the current joint custody arrangement and its effect in helping Dylan form his bonds with his parents, not in isolation and not to coerce Sian to remain. Rather, the court considered the current arrangement and Dylan's bond with both parents in tandem with the other LaMusga factors.
In short, after finding that Dylan was equally bonded to both parents and each parent's home was a beneficial environment for Dylan, the court discussed other relevant factors that, on balance, led the court to choose Angus as the primary parent and deny Sian's request to move Dylan. For instance, the court found minimal evidence of risk to Dylan from Angus's alcohol consumption based on the lack of testimony showing any harm to Dylan from Angus's drinking. On the other hand, there were significant risks to Dylan from residing in Sian and Mark's blended family, where Dylan had spent only a few weeks. Further, because Mark and Sian had dissuaded the custody evaluator from interviewing Mili, there were additional problematic areas with the blended family based on Mark and Mili's relationship.
The court also placed emphasis on Dylan's young age and the necessity of frequent (every two to three days) parental contact during the age when Dylan was forming critical attachments to his parents. But it did so in the context of also considering the distance of Sian's proposed move to the U.K. and its interruption of the bonding process with respect to Angus due to the practicalities of traveling across eight time zones. The move, the court determined, would also thrust Dylan into a blended family with children from three different relationships, and place him in a household with a financially uncertain situation that could affect the stability of Mark and Sian's relationship.
A trial court abuses its discretion if there is no reasonable basis on which the court could conclude that its decision advanced the best interests of the child. (In re Marriage of Melville (2004) 122 Cal.App.4th 601, 611.) There is clearly no abuse of discretion in this case. Sian's remaining, more specific attacks on the court's reasoning are unavailing.
1. The Court Did Not Err in Evaluating Sian's Reasons for Moving
Sian argues that where a move request is not made in bad faith (that is, is not made to limit the child's contact with the other parent), the court cannot examine the parent's motivation for moving. Here, she argues, the court improperly found that "Sian, in wanting to relocate Dylan to the U.K., put her interests above [Dylan's]" and that she wanted to relocate for her own reasons.
The premise of Sian's argument, and her assessment of the court's reasoning, are incorrect. Whether a parent wishes to relocate the child in bad faith is a factor a court can consider, because it "may be relevant to a determination of what permanent custody arrangement is in the minor children's best interest[s]. [Citations.]" (Burgess, supra, 13 Cal.4th at p. 36, fn. 6; see Mark T., supra, 194 Cal.App.4th at pp. 1131-1132.) But bad faith is not the only situation in which a court can evaluate a parent's motivation for relocation. The trial court is charged with the responsibility of determining the best interests of the child, a determination that obliges the court to consider the parent's motivation, not because the parent has the burden of justifying the move, but because the nature of the parent's reasons (in bad faith or not) can have an impact on the assessment of the best interests of the child. Indeed, in LaMusga, supra, 32 Cal.4th at page 1101, the court listed the willingness of the parents to place the children's interests above their individual interests, and the reasons for the proposed move, as proper considerations. Although in Niko, supra, 144 Cal.App.4th at page 364, the court observed that "[w]hen parents share joint custody the trial court need not question the wisdom of a parent's move or examine the reasons for the proposed move" (italics added) the court did not purport to prohibit the court from doing so, something expressly permitted by LaMusga.
Here, Sian testified that she and Angus had intended to reside part-time in the U.K., where she was born and raised. The court disbelieved her, noting that her assertion was contrary to the prenuptial agreement, and contrary to Angus's testimony.
Sian testified that her move to the U.K. was motivated by her lack of connections in Los Angeles, her desire to be near her relatives and extended family, and her desire to start a new family with Mark. The court found these reasons did not militate in Dylan's best interests, concluding that Sian put her interests above Dylan's: Sian refused to wait until Dylan was older to move, and reasoned that moving was "something she had to do" which would result in a "happy mom, happy baby." (Italics added.)
Especially in light of the court's finding Sian not credible about the parties' purported plans to reside part time in the U.K., the court was entitled to evaluate Sian's reasons for her relocation request as they reflected on the quality of Sian's parental judgment and on whether her reasons (as brought to bear on Dylan's life) would or would not benefit Dylan. As the court found, there were many troubling unknowns in Mark and Sian's blended family—children from three sets of parents, the short duration of Mark and Sian's relationship, their obstruction of Dr. Lund's contact with Mili, and Mark's financial instability. There was nothing improper in the court's concluding, in essence, that Sian's reasons for moving and optimistic view of the effect of the move on Dylan reflected an assessment of her own, not Dylan's, best interests.
2. The Court Did Not Err in Balancing Dylan's Age and Need for Contact with Both Parents
Sian argues that the court incorrectly concluded that Dylan's young age and his need for frequent and continuing contact with
his parents (due to his need to form healthy attachments) weighed against awarding primary custody to her. As she notes, "It is generally true that frequent interaction with both parents is in a child's best interests, that is the ideal; however, when one of the parents has stated an intent to relocate out of state, such a result is no longer possible. The court must then navigate the delta between the ideal and the reality and consider what is in the child's best interests under the circumstances presented. Failing to do so is an abuse of the court's discretion." (Jacob A. v. C.H. (2011) 196 Cal.App.4th 1591, 1601.)
Here, the court understood that Dylan's need for frequent contact with both parents could not be met, and as a result, the court awarded primary custody to Angus based upon the court's view of a limited risk from his drinking, and what it viewed as a much larger risk to Dylan in Sian's newly-formed blended family. In this context, Dylan's tender age was obviously a proper consideration, and the court's determination that a move to the U.K. would not be in his best interests given the distance which he would have to travel on a frequent basis, resulting in longer than the ideal two- to three-day separations, is clearly supported by the record.
3. The Court Did Not Err in Emphasizing Regular Contact with Both Parents
Sian argues that the court erred in weighing Dylan's young age against the distance of the move. She posits that because the distance between her home and Angus's home was the same for both parties, it was a neutral factor which affected both parties equally, and did not favor Angus.
We disagree. The court considered the distance of the move and Dylan's young age in the context of its entire view of the case. The court found that Angus's home provided a more stable environment for Dylan than Sian's home in the U.K. Therefore, the better choice—the choice with less risk to Dylan—was to give Angus primary custody in Los Angeles. In that context, the court considered the distance of the move and Dylan's young age as a factor against the move, because it would affect his bonding with Angus at the home in Los Angeles that was the more stable of the two possible homes. Sian argued that non-stop flights and Angus's wealth and flexible work schedule could mitigate that consequence of the move. As the court explained: "Sian misses the point. It is neither the cost of travel nor the directness of the flights that are at issue. As the expert testimony explained, what is of concern is Dylan's ability to meaningfully interact on a regular basis with both parents. Sian's move severely limits Angus' ability to do so." We find no abuse of discretion in the court's reasoning on this point.
4. The Court Did Not Ignore Dylan's Relationship With Sian
Sian argues the trial court failed to consider the effect on her relationship with Dylan if it denied her move request, instead considering only the effect of her move on Angus's relationship with Dylan. Further, because Sian in her objections to the court's proposed statement of decision requested the court make a specific finding on this issue in its statement of decision, the error resulted in a miscarriage of justice.
We are not persuaded. Sian sought to move to the U.K. with Dylan and have primary custody of him there. The legal standard required the court to assume that Sian would move to the U.K. even if her request to relocate Dylan was denied, and to make the determination of Dylan's best interests in light of that fact. Because the request to relocate with Dylan was the issue under consideration, and because, if the request were granted, the primary effect would be on Angus's relationship with Dylan, the court analyzed Sian's request primarily in that light, along with all the other factors that either did or did not support the move, including Dylan's need to form attachments with both parents. The court was not required to make specific findings on the effect of the denial of relocation on Sian's request on her.
In any event, it is obvious that the court did, in fact, consider the effect on Dylan's relationship with Sian if her request were denied. The court repeatedly observed that the expert evidence demonstrated the detrimental effect on Dylan's bonding process of being deprived of frequent regular contact with both his parents. It was not lost on the court that if Sian moved to the U.K. without Dylan, his bond to Sian would suffer. That the court did not expressly articulate that as a consideration, though it implicitly recognized it and found it outweighed, does not affect the validity of the court's analysis of Dylan's best interests.
5. The Court Did Not Apply a Presumption of Favor of Current Joint Custody Arrangement
Sian argues that the court erred in favoring retention of the current joint custody arrangement, because the presumption in favor of the current arrangement does not apply in the context of an initial custody order or where there is equal joint custody. She asserts that because of the pending move, maintaining the status quo was no longer an option, and the court was required to perform a de novo review. (Niko v. Foreman, supra, 144 Cal.App.4th at pp. 363-364; Mark T., supra, 194 Cal.App.4th at p. 1126.) Sian contends that by concluding the move was not in Dylan's best interests, the court improperly put the burden on Sian to overcome the detriment inherent in a long-distance move. Further, even if such a burden is proper, the evidence militated in Sian's favor, because she was Dylan's primary caregiver for most of his life.
Sian's arguments are misplaced. The court did not "favor" the existing custody arrangement in the sense of trying to replicate it in its analysis. Under LaMusga, the court may consider the child's interest in the stability and continuity of the current custodial arrangement. (LaMusga, supra, 32 Cal.4th at p. 1101.) It is true that when the court considers a relocation request, the status quo custody arrangement is not an option, and the court must determine de novo what new arrangement is in the best interests of the child. Further, "'a parent seeking to relocate with the minor children [in that context] bears no burden of establishing that the move is "necessary."'" (Mark T., supra, 194 Cal.App.4th at p. 1125; see also Niko, supra, 144 Cal.App.4th at pp. 363-364.)
But that the parent seeking to relocate bears no burden to prove necessity does not mean that in determining how relocation will impact the child's best interests, the court cannot consider the disruptive effect on the child of changing the existing arrangement, even though replication of that arrangement is impossible, given the assumption that the requesting parent will move even if not allowed to relocate the child. The existing arrangement frames the child's experience and expectations, even for a child as young as Dylan, and hence is properly considered in terms of deciding, for instance, the extent to which the particulars of the move (such as distance, travel, time sharing, and the mother's reasons for relocation, as well as all the other relevant factors) impact the child's experience and expectations. The overarching principle in a custody case is what will be in the child's best interests. For that reason, LaMusga approves consideration of both the child's interest in the stability and continuity of the current custody arrangement (a more important factor for a child of Dylan's age) and the extent to which the parents are currently sharing custody. (LaMusga, supra, 23 Cal.4th at p. 1101.) Sian's interpretation of the role of the status quo in initial custody evaluations equates such consideration with refusing to presume that the move-away parent would, in fact, move. The logic is faulty both in the abstract, and (as we have explained repeatedly) in the reality demonstrated by this record.
6. The Court Did Not Err in Considering the Financial Condition of the Parties
Sian argues that the court erred in considering the wealth of the parties as evidenced by its emphasis on Sian and Mark's unknown and unstable finances. (See, e.g., Burchard v. Garay (1986) 42 Cal.3d 531, 539 [court may not use comparative wealth as basis for custody award].)
However, the court did not base its decision on Sian's relative lack of wealth—indeed, she will undoubtedly receive ample child support for Dylan. Rather, the court's concern was the potential instability of Sian and Mark's relationship, and of the blended family, caused by the family's uncertain means of financial support through employment. That concern was not unfounded or improper.
7. The Court Did Not Err in Entering a Conditional Custody Order
Sian argues that the court improperly entered a conditional custody order that assumed Sian would move, with an alternative conditional custody order premised on Sian choosing to remain in Los Angeles, as a means to coerce her to stay. She misconstrues the record.
"[A] court must not issue such a conditional order for the purpose of coercing the custodial parent into abandoning plans to relocate. Nor should a court issue such an order expecting that the order will not take effect because the custodial parent will choose not to relocate rather than lose primary physical custody of the children." (LaMusga, supra, 32 Cal.4th at p. 1098.) However, that is not what happened here.
Noncoercive conditional orders are not improper. (LaMusga, supra, 32 Cal.4th at p. 1098.) ["There is nothing to indicate that the order transferring primary physical custody of the children to the father if the mother relocated was issued to coerce the mother into abandoning her plans to move"].) Nothing in the record supports a conclusion that the court was attempting to coerce Sian to remain. As we have repeatedly stated, the court assumed Sian was going to move regardless of the determination of her request to relocate Dylan, and in that context concluded that it would be in Dylan's best interest to reside primarily in Los Angeles with Angus. The court specified a time share schedule governing the parents' time with Dylan, with Angus having primary custody in Los Angeles and Sian being granted time with Dylan in Los Angeles and the U.K. But the court also entered an alternative order that if Sian chose to remain, she and Angus would share joint physical custody under a 2-2-3 time share arrangement, the same as the preexisting temporary custody arrangement.
In fashioning the alternative conditional order, the court did no more than recognize reality: although in ruling on the request to relocate it was required to presume that Sian would move, it was possible that Sian might choose to remain. If she did, the court wished to ensure an arrangement that implemented Dr. Lund's recommendation that until age five, the parties live near one another, and that also permitted Sian to maintain healthful contact with Dylan. That the court provided this option was not coercive, but simply a recognition that if Sian chose to remain, the court needed to fashion a permanent custody order that would serve Dylan's best interests, and obviate any further custody proceedings or the crafting of a new order. There was no error.
II. There Was No Prejudicial Error in Permitting Testimony on Whether Sian Would Move if Denied Primary Custody
Sian argues that because the court was required to assume that she would in fact move, it erred in permitting Angus's attorney to question her, over objection, regarding whether she would relocate to the U.K. even if denied custody. We find no prejudicial error.
A. Factual Background
During trial, Angus's attorney questioned Sian about her plans to relocate if Angus were granted primary custody and whether she would change her mind about moving if denied custody. She responded that she would not, because she and Angus intended to split their time between the U.S. and the U.K. After a question regarding "[whether it was her] belief that it's more important for you to live in the U.K. than it is for Dylan to see his father on a weekly basis," Sian responded that "I don't think either one is more important than the other." Sian was then asked about her reasons for wanting to return to the U.K. "My intention was never to leave the U.K., and our plan as a family during my marriage to Angus and prior was always that we would spend time in the U.K. and in the U.S., so our plan as a family was always to have a home in the U.K. and one here, so my position really isn't any different from what it always has been."
Later in the proceedings, Sian was asked whether she was still willing to move to the U.K. if the court awarded primary custody of Dylan to his father. "That is why we're here and, yes, I do wish to relocate to the U.K."
The court overruled various objections to this testimony.
B. Discussion
It appears that the court erred, but we conclude the error was not prejudicial. Sian relies on Mark T., 194 Cal.App.4th at pages 1128-1129, but her reliance is misplaced.
In Mark T., 194 Cal.App.4th 1115, the divorcing parents shared custody in San Diego of their 22-month old child pursuant to a temporary custody arrangement. Before the court entered a permanent custody order, the mother filed an order to show cause seeking to relocate the child to Minnesota. At the contested evidentiary hearing, the trial court permitted the father's attorney to ask the mother whether she would move to Minnesota if the court were to deny her request. The mother's response "effectively conceded that she would not move to Minnesota if her move-away request was denied." (Id. at p. 1129.) Later, in its custody order, which was premised on the mother's remaining in San Diego and which failed to presume that mother would move, the trial court relied on this testimony, stating that "'[the mother] did not testify she would leave [the child] here in San Diego and move back to Minnesota if the move away was denied.'" (Id. at p. 1128.)
The appellate court criticized the trial court for permitting the testimony: "this line of inquiry was improper, since the court should not have considered whether or how [the mother] might alter her plan to relocate, depending upon how the court ruled." (Mark T., supra, 194 Cal.App.4th at p. 1129.) Further the appellate court concluded that the trial court's express reliance on the testimony "reflects the error in the trial court's analysis; the court appears to have been under the misimpression that it could coerce [the mother] into remaining in San Diego through its custody order." (Id.)
In short, the prejudicial error in Mark. T. was not simply that the father was permitted to ask, and the mother was permitted to respond, regarding whether she would move if her request to relocate the child was denied. Rather, the significance of the error was that in response to the questioning, the mother made it clear that she would not move, and the trial court, under the erroneous assumption that it did not have to presume the mother would move, seized on that testimony to coerce her to remain.
The instant case is distinguishable. Sian did not testify that she would remain in Los Angeles if her request to relocate Dylan was denied. To the contrary, she testified, in substance, that she intended to move regardless. Further, the trial court did not fail to presume that Sian would move; it presumed that she would and did not attempt to coerce Sian to remain. Finally, to the extent the challenged testimony played a role in the court's analysis, that role (supported by other evidence) was in the court's assessment that Sian's reasons for moving put her interests above the best interests of Dylan, an entirely proper factor for the court's consideration. In short, we find it is not reasonably probable that a different result would have been reached in the absence of the error. (In re Marriage of Jones (1998) 60 Cal.App.4th 685, 694 [stating standard of harmless error].) III. Sian Forfeited Her Claim that the Court Erred in Precluding Testimony and Production of Records by Dr. Raskin; Further, Any Error was Harmless
Sian contends that Angus tendered the issue of his substance abuse in the action with his March 4, 2016 email regarding his "sobriety issues," and thus his physician-patient privilege was waived as to that subject. On that basis, she argues, the court erred in precluding her from obtaining records from Dr. Damon Raskin, Angus's personal physician (whom he had initially met in treatment) or inquiring into his treatment of Angus. We conclude that she forfeited the issue regarding her subpoena on Dr. Raskin, and, even assuming error occurred in not enforcing the subpoena or not allowing questioning of Angus about his treatment with Dr. Raskin, the error clearly was not prejudicial.
A. Factual Background
In the midst of his increasing custody of Dylan, Angus abruptly informed Sian by an email dated March 4, 2016 that he had been having "sobriety issues," although his recent Soberlink reports had been negative. At the time, Angus was not forthcoming about the details of the "sobriety issue" (they related to his Ecstasy use) but submitted a negative drug test from the office of his physician, Dr. Damon Raskin. He asserted in the email that such results were submitted without waiving the physician/patient privilege. Sian subpoenaed Dr. Raskin, seeking writings relating to the drug and/or alcohol screening performed on Angus on March 4, 2016. After Angus filed a motion to quash the subpoena in September 2016, the motion was taken off calendar.
During trial, on June 2, 2017, Sian prepared another subpoena on Dr. Raskin, seeking "[a]ll records, notes, reports, and insurance documents relating to the diagnosis/diagnoses of substance use disorder, alcohol use disorder, drug addiction, and/or alcohol addiction for Angus Mitchell (DOB 10/16/1970), from July 10, 2015 to the present." Sian asserted that Dr. Raskin had been treating Angus for "sobriety issues" since 2000. But, apparently, this subpoena was never served on Dr. Raskin. Nonetheless, Angus moved to quash the subpoena on June 12, 2017.
Sian's final subpoena to Dr. Raskin was served on July 13, 2017, commanding his appearance at trial on July 17, 2017. This subpoena sought "[t]he entire file for Angus Mitchell (DOB 10/16/1970), including but not limited to, all records, intake forms, notes, patient charts, reports, test results, records of diagnosis, lab results, billing files, insurance documents, and emails/text messages to and from Angus Mitchell or anyone acting on his behalf to anyone employed at Damon B. Raskin, M.D., Inc., from the time Angus Mitchell started treatment with Damon B. Raskin, M.D. to the present."
During trial, Sian attempted to question Angus on whether he spoke to Dr. Raskin about his sobriety issues. Angus objected on the grounds of privilege, and the court sustained the objection. Sian asserted the physician-patient privilege had been waived by the sending of Angus's March 4, 2016 email and blood test results. After argument, the court ruled that "I find the waiver imperfect. You may ask the witness about his conversations with the doctor regarding this test and only this test. Anything else is out."
After Dr. Raskin failed to appear, the parties argued over the court's ability to compel his appearance. The court did not make a ruling, but invited briefing on the issue. Sian reserved the right to call him as a witness. Dr. Raskin did not appear at trial to testify, and the subpoena was never formally ruled upon.
A. Sian Forfeited Enforcement of the July 13, 2017 Trial Subpoena
A civil subpoena is the procedure to secure attendance of nonparty witnesses at trial. A subpoena "is a writ or order directed to a person and requiring the person's attendance at a particular time and place to testify as a witness." (Code Civ. Proc., § 1985, subd. (a).) The subpoena may require the production of documents at trial. Upon the failure of the witness to appear, the court may issue an arrest warrant. (Code Civ. Proc., § 1993, subd. (a)(1).)
The record demonstrates that Sian failed to seek enforcement of her trial subpoena after Dr. Raskin's failure to appear. As a result, Sian has forfeited any arguments related to his failure to appear and testify at trial and to produce records. "A fundamental tenet of our system of justice is the well-established principle that a party's failure to assert error or otherwise preserve an issue at trial ordinarily will result in forfeiture of an appeal of that issue." (People v. McKinnon (2011) 52 Cal.4th 610, 636.)
B. Any Error was Harmless
Even if there were no forfeiture, we find it unnecessary to decide whether the court erred, because even if it did, the error was clearly not prejudicial. Sian has failed to demonstrate that it is reasonably probable that testimony from Dr. Raskin, any documents he produced, and any testimony by Angus as to his treatment by Dr. Raskin would have changed the result at trial. (In re Marriage of Jones, supra, 60 Cal.App.4th at p. 694.)
The issue of Angus's past and recent substance use, his rehabilitation efforts, and most importantly, the real life history of the effect (if any) of his substance abuse on his ability to parent Dylan, were exhaustively explored at the contested hearing in testimony by Sian, Angus, John Paul DeJoira, and Tally Rossi (who discussed the nature and instances of Angus's drug and alcohol issues); by Drs. Stan Katz, Arthur Horvath, and Richard Sandor (who offered expert testimony on the extent and treatment of the substance abuse), and Dr. Mary Lund (who offered a custody recommendation that considered Angus's alcohol and substance abuse history).
There is no basis on this record to conclude that additional testimony (the content of which is unknown) by Dr. Raskin and Angus regarding Angus's substance abuse treatment, and production of Angus's medical records (the content of which is also unknown), would have so further elucidated the issue as to make it reasonably probable that the court would have decided to permit Dylan's relocation. Indeed, it is clear that the court took seriously the evidence of Angus's substance abuse. In placing primary custody with Angus, the court ordered him to wear a SCRAM alcohol detection device, and to submit to weekly drug tests for one year, the period for both to be extended if Angus tested positive. Thus, even if the court somehow erred, it is not reasonably probable that a different result would have occurred in the absence of the error. (In re Marriage of Jones, supra, 60 Cal.App.4th at p. 694.)
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
WILLHITE, J.
We concur:
MANELLA, P. J.
COLLINS, J.