Marriage of McAuley CA3
C090504
| Cal. Ct. App. | Jun 28, 2021Background
- Parents married 2011; son A. born 2012. After dissolution, parents had joint legal custody; mother awarded sole physical custody and father set visitation (including summer visits in California).
- Mother relocated first to Virginia (court-approved) and later to Maryland (without court approval and withholding her address); father’s contact and visits with A. sharply declined after a July 2018 visit.
- In November 2018 mother told father A. accused father of sexual touching; Maryland and Sacramento authorities and CPS did not substantiate abuse; mother nonetheless blocked visitation and obtained a Maryland temporary protective order (TPO).
- Father filed multiple requests for orders (ex parte and regular) seeking enforcement of visitation, fees, and ultimately sole physical custody; California court ordered visitation restored but mother repeatedly refused to comply.
- After trial the California court found mother intentionally frustrated visitation and alienated A. from father, found mother not credible, and awarded father joint legal and sole physical custody (mother limited to holiday/school-break parenting time).
- Mother appealed raising procedural (service and relief-not-requested) and evidentiary/weight-of-evidence claims; the Court of Appeal affirmed.
Issues
| Issue | Plaintiff's Argument (Mother) | Defendant's Argument (Father) | Held |
|---|---|---|---|
| 1. Improper service of father’s initial RFO | December 2018 RFO wasn’t personally served at first reasonable opportunity, prejudicing mother | Any defects were moot because later RFOs and final judgment superseded the initial ruling | Moot; challenge rejected because the February 5 ruling was superseded by later requests and the final order |
| 2. Court granted relief exceeding RFO | Trial court awarded custody change and higher bond amount beyond original RFO relief | Father later sought custody in subsequent RFOs and mother had actual notice of custody being disputed | No abuse of discretion; mother had notice of custody request before trial and the court acted within scope |
| 3. Exclusion of evidence at trial | Court excluded videos/transcripts and a CPS report, harming mother’s case | Exclusions were proper for hearsay, recording-consent and certification issues; mother forfeited appellate review by failing to cite authority/record | Forfeited; alternatively, exclusions were legally supportable (hearsay, Penal Code §632 transcription/consent issues) |
| 4. Failure to consider/reweigh evidence & credibility | Court ignored harms of disrupting custody, father’s PTSD/domestic violence history, and alleged abuse; court misweighed testimony | Trial court considered allegations and prior orders, observed witnesses, and found mother’s conduct (visitation sabotage) detrimental | No abuse of discretion; appellate court defers to trial court credibility findings and presumes the court considered relevant evidence |
Key Cases Cited
- In re Marriage of Brown & Yana, 37 Cal.4th 947 (2006) (best-interest standard and factors for custody decisions)
- In re Marriage of LaMusga, 32 Cal.4th 1072 (2004) (relocation/move-away analysis and changed-circumstances framework)
- In re Marriage of Burgess, 13 Cal.4th 25 (1996) (trial court discretion in custody matters)
- Montenegro v. Diaz, 26 Cal.4th 249 (2001) (changed-circumstances rule for custody modification)
- Kearney v. Salomon Smith Barney, Inc., 39 Cal.4th 95 (2006) (recording consent and Penal Code §632 application)
- Moffat v. Moffat, 27 Cal.3d 645 (1980) (deliberate sabotage of visitation can justify custody modification)