Bray v. Watson CA4/1 ( 2022 )

Filed 2/17/22 Bray v. Watson CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for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.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
FARRAH BRAY, D078567
Plaintiff and Respondent,
v. (Super. Ct. No. 18FL014172E)
BRANDON WATSON,
Defendant and Appellant.
APPEAL from an order of the Superior Court of San Diego County,
Saba Sheibani, Judge. Affirmed.
Brandon Watson, in pro. per., for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
Appellant Brandon Watson, the father in this move-away case (Father),
challenges the family court’s order awarding primary custody of his now
three-year-old daughter A. to respondent Farrah Bray (Mother) in
conjunction with a family move to North Carolina. As is increasingly
common, both parties in this family law appeal are self-represented, and we
fully appreciate the significant challenges self-represented litigants face in
both the trial and appellate courts. These challenges are only compounded by
the anxieties and frustrations inherent in a move-away request, where most
often there is no “happy” solution. Parents who could otherwise share the
custody and companionship of their child while living in the same community
cannot both have the same “frequent and continuing contact” with their child
when they live on opposite coasts. (See Fam. Code, § 3040, subd. (a)(1).)
Here, Father’s brief attempts to argue issues outside the move-away
order that is the proper subject of this appeal; Mother has filed no brief at all.
Still, we have done our best to identify the arguments that are appropriately
before us. Our review of the record convinces us that the family court judge
considered the relevant circumstances and made a thoughtful judgment call,
knowing that at least one parent would be disappointed, if not distraught.
Ultimately, Father has failed to show that the court abused its broad
discretion in making Mother the primary custodian after the cross-country
move. Accordingly, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Father and Mother are the parents of three-year-old A. To say they
have a contentious relationship with respect to their daughter would be an
understatement. According to the family judge, theirs’ was “one of my most
high-conflict” cases with “multiple restraining orders, multiple RFOs,
multiple child welfare reports, multiple police interventions.” The judge
estimated that in two years, the parents had appeared in her courtroom at
least ten times and probably more.
Despite their conflicts, the parents shared custody of A. equally,
splitting each week on a 50/50 basis. Along with A., Mother resided with her
husband, who was in the Navy, and a five-year-old son (from a prior
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relationship). At the time of the hearing she was pregnant with another
child. Father was unemployed and lived with his mother and other family
members.
When her husband received naval orders transferring him from San
Diego to North Carolina, Mother as a self-represented litigant filed a move-
away request in July 2020 seeking the court’s permission to take A. with her
along with orders making her the primary custodian. The hearing on
Mother’s request was originally set for October 20, but the matter was
continued to December on the court’s own motion because Judge Sheibani
“need[ed] more information from both sides.” As the judge explained, “I am
not going to decide a move away for a two year old who is going out of state
with no information.”
At the beginning of the continued hearing on December 3, Judge
Sheibani explained to the parties that she had reviewed and would consider
Mother’s declaration that accompanied the original move-away request, the
October Family Court Services (FCS) report, Father’s declaration filed on
October 9, Mother’s responsive declaration filed November 16 as well as
Father’s supplemental declaration filed just before the hearing.1 The court
then heard argument from the parties. Father was represented by counsel;
Mother represented herself.
Ultimately, applying a best-interest-of-the-child standard, the court
granted Mother’s move-away request. Judge Sheibani was particularly
concerned with disrupting the sibling relationship between A. and her five-
year-old half-brother. Adopting the FCS report and recommendations with
1 Although Father’s designation of record sought to identify all these
documents, most were not made part of the Clerk’s Transcript. We obtained
copies from the superior court and, on our own motion, augment the record to
include them. (Cal. Rules of Court, rule 8.155(a)(1)(A).)
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some modifications, she entered orders giving primary custody of A. to
Mother.
DISCUSSION
Father appeals the December 3, 2020 order granting Mother’s move-
away request and making appropriate custody orders.2 Transcripts of four
hearings are included in the appellate record, and Father attempts to
sequentially address all four in his brief. Two of these—on June 24 and July
28, 2020—have little to do with Mother’s move-away request, which was filed
on July 16, 2020, but not set for hearing until October.3 We therefore focus
on events at the remaining two hearings that addressed the move-away
request and explain why no abuse of discretion occurred.
2 Father’s notice of appeal, filed on January 7, 2021, indicated his intent
to appeal two orders: (1) an order dated February 13, 2019, granting
Mother’s petition for a restraining order, and (2) the December 3, 2020 order
granting Mother’s move-away request. On April 13, 2021, we dismissed
Father’s appeal in part as untimely to the extent it sought to challenge the
2019 order granting a restraining order.
3 To the extent Father is attempting to argue that the proceedings in
June and July demonstrate the judge’s bias against him, we find no
reasonable basis to draw that inference. The June 24 hearing addressed
Mother’s request to modify the current visitation orders that were attached to
the parties’ mutual restraining orders. The court initially found that Father
had notice of the hearing but failed to attend, and so proceeded in his
absence. Even so, Judge Sheibani repeatedly questioned Mother’s reporting
of events as well as her contentious behavior. Although the court modified
the orders as Mother requested , one month later at Father’s request it set
aside the June 24 orders based on a finding that he was unable to participate
in the June hearing due to technological issues with the court’s video hearing
platform. Judge Sheibani then entered new custody and visitation orders,
setting a schedule that returned to the status quo and gave each parent
roughly equal time.
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At the October 20 hearing, the court took no action on Mother’s request.
Instead, it continued the hearing to December and advised both parties to
provide additional information in supplemental filings. Father contends that
by granting a continuance to allow the presentation of additional evidence,
the family court demonstrated bias in favor of Mother. But he overlooks that
Judge Sheibani requested additional information from both parties. She also
made clear that her primary concern “is for the child” because she did not
want to make new custody orders without sufficient information. Even
assuming the judge accommodated Mother’s self-represented status by
granting the continuance, this was appropriate under the circumstances to
facilitate Mother’s right to be heard and ensure a well-grounded decision.
(Cal. Code of Jud. Ethics, Advisory Com. com. to canon 3(B)(8) [“when a
litigant is self-represented, a judge has the discretion to take reasonable
steps, appropriate under the circumstances and consistent with the law and
the canons, to enable the litigant to be heard”].)
With respect to the December 3 hearing, Father catalogs various facts
and circumstances he believes demonstrate the court should have reached a
different conclusion. He complains that Mother did not complete an anger
management class or mandated therapy. He points to child welfare reports
that could not be substantiated and accuses Mother of dishonesty. In his
view, he provided “my source of income, a vastly superior support system
here in San Diego and in neighboring cities to support [A.] if I needed it, a
stable home with no violence or unhealthy individuals presents [sic] and
myself a father to [A.] who has been there every day of her life other than the
times I was forced out due to [Mother] illegally withholding [A.].” Unable to
understand how Judge Sheibani could side with Mother, Father concludes
that the only possible explanation is that the court was biased against him.
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We do not doubt the sincerity of Father’s beliefs, but his perspective is
not an objective one. Far from reflecting bias in favor of or against one party,
the court’s comments at the hearing indicate evenhanded criticism of both
parents on several levels. Judge Sheibani expressed “concerns regarding
either parents’ [sic] ability to parent this child.” Although noting there had
been “no substantiated allegations of child abuse by either parent,” she
pointed out that both parties had engaged in domestic violence. Most
troubling to the court was the parents’ inability to effectively coparent their
daughter and their respective roles in creating a high-conflict relationship.
As the judge explained, “It’s not one or the other. Both of you[,] [b]oth of you
have acted the same way throughout this case.”
In the end, acknowledging it was “a difficult decision for me to make,”
the court gave primary custody of A. to Mother. Particularly important to the
judge was maintaining “continuity of the sibling relationship” and the “strong
bond” that A. had formed with her half-brother. The court expressed concern
that “removing [A.] from her sibling . . . might be detrimental to her as a two-
year-old.” Significantly, Father does not mention this factor in arguing why
the court’s decision was wrong. And while he takes issue with the ruling
based on his belief that Mother repeatedly violated prior custody orders,
Judge Sheibani expressly warned Mother that its orders could be changed at
a later date if the court concluded she was not fostering A.’s relationship with
Father.
Our role as an appellate court is a limited one. We review custody
orders not to determine whether we agree with them or would have reached
the same conclusion. Rather, we will disturb a family court’s order only if we
conclude that it abused its discretion, understanding that the “court has ‘the
widest discretion to choose a parenting plan that is in the best interest of the
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child.’ ” (In re Marriage of Burgess (1996) 13 Cal.4th 25, 31 (Burgess),
quoting Fam. Code. § 3040, former subd. (b), now subd. (d).) Discretion is
abused only if no judge “could have reasonably concluded that the order in
question advanced the ‘best interest’ of the child.” (Burgess, at p. 32.)
In this case, Judge Sheibani thoughtfully considered a difficult set of
circumstances and reached a reasonable decision on the facts presented.
Although the judge knew her ruling would not please both parents, she
nonetheless tried to explain her reasoning in a way both parents could
understand. This is precisely what we expect judges to do. There was no
abuse of discretion, and our record reflects that Father received a fair and
impartial ruling, albeit one he did not agree with.
DISPOSITION
The order on Mother’s move-away request is affirmed. Father shall
bear his own costs on appeal.
DATO, J.
WE CONCUR:
AARON, Acting P. J.
GUERRERO, J.
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