Marriage of Rubtsov and Rubtsova CA2/3

Filed 7/24/15 Marriage of Rubtsov and Rubtsova CA2/3
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION THREE
In re the Marriage of ULYANA RUBTSOVA B251506
and IVAN V. RUBTSOV.
_____________________________________ (Los Angeles County
Super. Ct. No. BD484894)
IVAN V. RUBTSOV,
Appellant,
v.
ULYANA RUBTSOVA,
Respondent.
APPEAL from a judgment of the Superior Court of Los Angeles County,
James D. Endman and Louis M. Meisinger, Judges. Affirmed.
Ivan Rubtsov, in pro. per., for Appellant.
Ulyana Rubtsova, in pro. per., for Respondent.
___________________________________
INTRODUCTION
This is an appeal from custody and visitation orders in a high conflict marital
dissolution proceeding. Appellant Ivan Rubtsov represented himself in most of the
proceedings below, and both Ivan1 and respondent Ulyana Rubtsova represent
themselves on appeal.
Ivan and Ulyana have three minor children. After a lengthy contested custody
proceeding, the trial court awarded sole physical and legal custody of the couple’s two
younger children to Ulyana and sole physical and legal custody of the oldest child, V.,
to Ivan. The court also required professional monitors to oversee visitation between
both Ivan and V., respectively, and the younger children. The court made a number of
important factual findings that informed its decision. Primarily, the court found that,
following Ulyana’s initiation of the marital dissolution action, Ivan engaged in an
aggressive and persistent campaign to alienate Ulyana from the children. Ivan had
imprinted his message on V. to the point that she became an instrument in his campaign
against Ulyana. The court also found that Ulyana and Ivan are unable to communicate
in a non-hostile, effective manner and therefore would be unable to make decisions
together, as a joint custody arrangement would require.
Under the circumstances, we find no abuse of discretion in the court’s custody
and visitation orders. Accordingly, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Ulyana commenced this marital dissolution and child custody proceeding in
May 2008. Ulyana’s and Ivan’s three children are V. (now age 16), Va. (now age 13),
and I. (now age 8). The parties were unable to come to an agreement on custody and
visitation, and so a contested custody proceeding followed.
The high degree of conflict between Ivan and Ulyana was evident at the first
hearing in this matter, which took place on July 11, 2008. For the purported benefit of
1
We refer to the parties by their first names in the interest of clarity. We intend no
disrespect.
2
the court, Ivan played a short video, apparently capturing a bitterly hostile exchange
between Ivan and Ulyana that had taken place in front of the three children a few days
earlier. After watching part of the video, the court admonished the parties that their
venal behavior toward each other in front of the children was extremely upsetting to
them. The court appointed minors’ counsel and -- in light of its concern for the
well-being of the children -- indicated it would consider referring the case to the
Department of Children and Family Services. Eventually, Ivan and Ulyana stipulated
they both would move out of the family’s apartment and the children would stay there,
to be cared for by Ivan’s mother and a family friend. The court held a further custody
hearing on July 23, 2008, and left the residence and visitation conditions in place. The
court set a further custody hearing to take place on August 5, 2008.
Ulyana visited the children on July 25, 2008. Ivan’s mother and his brother,
Nick, were also at the apartment. At some point during the visit, Ulyana argued with V.
and Va. about the volume of the music she was playing. As the argument escalated, the
girls tried to push past Ulyana to change the volume and Ulyana moved to block them.
V. reported that Ulyana hit her in the face. Both girls reported that Ulyana squeezed
Va.’s head between her legs and tried to choke her. Nick said he could hear the
argument from the kitchen. He then heard a “thud” and came into the room to find V.
on the floor, yelling in Russian, “She hit me! She hit me!” Nick called the police.
After the girls reported to the officers that Ulyana had beaten them, the officers arrested
Ulyana on suspicion of child endangerment.
On August 4, 2008, Ivan advised the court of Ulyana’s arrest. At the scheduled
custody hearing on August 5, the court gave Ivan primary custody of the children and
allowed him to move back into the family’s apartment. The court issued a temporary
restraining order against Ulyana prohibiting contact with the children, with the
exception of telephone calls and supervised visits two to three days a week. The court
also ordered a custody evaluation.
Unfortunately, the situation did not normalize. Shortly after Ivan moved back
into the family’s apartment, his ex-wife Ana Sert became the children’s primary
3
caretaker. Initially, Ivan attempted to obstruct Ulyana’s court-ordered visitation with
the children. Later, after the court intervened, Ivan allowed visitation to proceed but
was so hostile to the monitors that the parties had difficulty finding anyone who would
monitor her visits with the children. After one visitation session, Ivan called the police
and accused Ulyana of “frisking, pushing, squeezing” the children during monitored
visitation. Officers interviewed the children. DCFS also received referrals against
Ulyana in September and November of 2008 and March, July, and August of 2009.
On August 18, 2009, the court advised the parties that it had received the written
report from the court-appointed custody evaluator, Dr. Devilliers. The report reflects
that Dr. Devilliers interviewed V. and Va., along with many adults who interacted with
them on a regular basis. These included family members, school teachers, and visitation
monitors, as well as the children’s pediatrician and therapists. She also visited Ivan’s
residence at which time she observed the children at home and spoke directly with
them, as well as Ivan, Ivan’s mother, and Ana Sert. In addition, Dr. Devilliers
interviewed Ulyana and several mental health professionals.
Based on the information gathered during her investigation, Dr. Devilliers
recommended that physical custody of Va. and I. be immediately transferred from Ivan
to Ulyana. Dr. Devilliers observed that V. and Va. had increased levels of anxiety
regarding their interactions with Ulyana, due primarily to Ivan’s tendency to speak
pejoratively about Ulyana and to discuss volatile aspects of the divorce. During
visitation sessions with their mother, both girls behaved aggressively and every visit
resulted in some sort of conflict, rejection, or confrontation. In addition, Dr. Devilliers
was troubled by the fact that both girls continued to allege that Ulyana was abusing
them during their visitation sessions -- allegations that were contradicted by the
professional monitors in attendance. Dr. Devilliers discounted the allegations of prior
abuse made by Ivan, V., and Va., including the allegations about the July 25, 2008
incident that led to Ulyana’s arrest, because she found their accounts to be inconsistent
and not credible. Finally, Dr. Devilliers described Ivan as intimidating, controlling, and
4
manipulative to the point of being abusive, and recommended that he be required to
participate in a 52-week batterer’s program.
The court also heard testimony from Ian Rosen, a DCFS emergency response
social worker. He said DCFS had received four referrals (so far) against Ulyana. DCFS
found one referral—the one relating to the July 25, 2008 incident—was substantiated.
In the other three cases DCFS investigated, however, it determined the referrals were
unsupported. Rosen personally investigated two of the referrals, and believed that Ivan
planned to alienate Ulyana and substitute Ana in the role of the children’s mother.
Further, Rosen said he recommended to his supervisor that DCFS open a case against
Ivan due to his emotional abuse of the children.
After hearing argument from counsel and Ivan in pro per, the court followed the
recommendation of Dr. Devilliers and removed Va. and I. from Ivan’s custody,
awarding temporary physical custody of the two children to Ulyana. The court ordered
weekly, monitored visitation between Ulyana and V., and between Ivan and the two
minor children. The court also ordered individual therapy for each of the minor
children, as well as conjoint therapy for Ulyana and V. Finally, the court set the matter
for a formal trial on the bifurcated issues of custody and visitation.
Trial began on October 30, 2009 and continued sporadically over the next year.2
The court heard testimony from Ivan and Ulyana,3 as well as the children’s therapists
and several social workers.
Dr. Freya Kaye, the individual therapist for V. and Va., testified very briefly.
She began treating V. in October 2008 and had recently seen significant improvement in
her. She characterized V. as cooperative, whereas she previously had been rebellious
2
Much of the delay was due to Ivan’s claims of poor health.
3
In the interest of expediting the proceedings, the court invited both parties to
offer their prior declarations into evidence in lieu of live testimony on the issues
addressed in the declarations. Ulyana offered, and the court received, five declarations.
Ivan did not include Ulyana’s declarations in his designation of the record on appeal,
nor did he provide them in response to the court’s request for trial exhibits.
5
and rude. She also confirmed that, when she began treating V. and Va., both girls
expressed anxiety about being with Ulyana.
Dr. Alfredo Crespo, the conjoint therapist for Ulyana and the girls, testified he
saw a dramatic and positive shift in Va. following the custody change. However, he
offered a poor prognosis for improvement in V.’s relationship with Ulyana. He also
described Ivan as rigid in his view that Ulyana is “abusive,” a “criminal,” and “a bad
mother.”
DCFS social worker Ian Rosen testified again and by that time had investigated
three DCFS referrals against Ulyana made during 2009, all of which he found to be
unsubstantiated. Rosen considered all three children to be “in danger” while in Ivan’s
custody. Rosen also considered Ivan to be a flight risk and feared he might leave the
state with the children without the court’s permission.
A second DCFS emergency response social worker, Anne Thomas, also testified.
Thomas visited the children at Ulyana’s home approximately five times and found
Ulyana to be cooperative. She observed that the children seemed happy and well cared
for, and saw no signs of abuse.
The court also heard the testimony of Cynthia Ito, an in-house therapist at the
San Fernando Community Mental Health Center. Ito’s primary focus is on parent
education and helping to build strong relationships between parents and their children.
She visited Ulyana’s home about once every two weeks, and she observed that the
children seemed safe and happy.
In addition, the court heard testimony and received evidence about the July 25,
2008 incident. In particular, the court noted Dr. Devilliers interviewed V. and Va. and
concluded that neither of their accounts of the incident was credible. The court found,
as an independent trier of fact, “that the children were not subjected to physical abuse
by their mother in July of 2008, and that the incident in question was contrived,
misrepresented and blown out of proportion.” More particularly, the court found “the
children (goaded by [Ivan]) were as responsible for that incident, or more so, than their
mother.” Further, the court expressed its belief that Ulyana “pled nolo contendere in
6
that case more out of parental concern for involving the children in a criminal
proceeding than out of any admission on her part that she was guilty.”
The court issued its statement of decision on April 1, 2011 and entered the
judgment on the bifurcated issues of custody and visitation on October 7, 2011.4 The
court awarded sole legal and physical custody of the two younger children to Ulyana,
and awarded sole legal and physical custody of V. to Ivan. The court ordered regular,
professionally monitored visitation between V. and Ulyana. The court also ordered
professionally monitored visitation between Ivan and the younger children for two
hours a week. In addition, the court ordered individual therapy for Va. and V. as well as
conjoint therapy between the siblings, as Dr. Kaye recommended. The court also
ordered conjoint therapy for Ulyana and V., again as recommended by Dr. Kaye.
Finally, the court ordered that V.’s visits with the younger siblings would be
professionally monitored.
At the conclusion of the case, the court entered a final judgment incorporating
these custody and visitation provisions. On July 9, 2013, the court clerk entered and
served a copy of the final judgment. Ivan filed his notice of appeal more than 60 days
later, on September 18, 2013.
APPEALABILITY
We first consider whether we have jurisdiction to consider Ivan’s appeal.
A notice of appeal must be filed within 60 days after service of the notice of entry of
judgment. (Cal. Rules of Court, rule 8.104(a).) Ivan concedes his notice of appeal from
the final judgment is untimely and asks us to excuse his late filing. We have no
authority to grant his request because “ ‘[t]he time to file notice of appeal, both in civil
and criminal cases, has always been held jurisdictional in California.’ [Citation.]”
(Bourhis v. Lord (2013) 56 Cal. 4th 320, 324-325 (Bourhis); Conservatorship of
4
As we note in the discussion regarding appealability, Ivan attempted to appeal
from the October 7, 2011 judgment. We dismissed the appeal because the judgment on
the bifurcated issues of custody and visitation is not a final judgment within the
meaning of Code of Civil Procedure, section 904.1, subdivision (a)(1)-(13).
7
Townsend (2014) 231 Cal. App. 4th 691, 701 (Townsend).) When a notice of appeal
“has not in fact been filed within the relevant jurisdictional period—and when
applicable rules of construction and interpretation fail to require that it be deemed in law
to have been so filed—the appellate court, absent statutory authorization to extend the
jurisdictional period, lacks all power to consider the appeal on its merits and must
dismiss, on its own motion if necessary, without regard to considerations of estoppel or
excuse.” (Hollister Convalescent Hosp., Inc. v. Rico (1975) 15 Cal. 3d 660, 674;
Bourhis, supra, 56 Cal.4th at p. 330; Townsend, supra, 231 Cal.App.4th at p. 701.)
Alternatively, Ivan asks us to save his appeal by construing an earlier-filed notice
of appeal as a premature appeal from the final judgment. Under California Rules of
Court, rule 8.104(d)(2), we have discretion to construe a notice of appeal as a premature
appeal where the notice of appeal is filed after the court has announced its intended
ruling but before it has rendered its final judgment. We therefore consider whether
either of Ivan’s earlier notices of appeal satisfies these conditions.
Ivan directs our attention to the notice of appeal filed on February 1, 2012. But
that notice of appeal is expressly limited to four orders the trial court entered on
January 9, 2012. In those orders, the trial court denied Ivan’s request to hold the two
court-appointed minors’ counsel in contempt and required him to pay the attorney fees
minors’ counsel incurred in responding to his contempt motion. We affirmed the orders
in an unpublished decision. (Rubtsova v. Rubtsov (B238855, dated 9/26/13).) Because
the February 1, 2012 notice of appeal is expressly limited to the orders of January 9,
2012, we cannot reasonably construe that notice of appeal as a premature appeal from
the final judgment.
However, Ivan also filed a notice of appeal on March 9, 2012, in which he
appealed from the trial court’s October 7, 2011 judgment on the bifurcated issues of
custody and visitation. We dismissed that appeal because a judgment on bifurcated
issues is not a final judgment within the meaning of Code of Civil Procedure
section 904.1, subdivision (a)(1)-(13).
8
In the present appeal, Ivan challenges portions of the custody and visitation
orders included in the October 7, 2011 judgment on bifurcated issues that the trial court
subsequently incorporated into the final judgment of July 9, 2013. Accordingly, Ivan
filed the March 9, 2012 notice of appeal after the court announced its custody and
visitation rulings, but before it rendered the final judgment. We exercise our discretion
to treat the March 9, 2012 notice of appeal as a premature appeal from the final
judgment and deem it timely filed. (Cal. Rules of Court, rule 8.104, subd. (d)(2);
Turpin v. Sortini (1982) 31 Cal. 3d 220, 224, fn. 2.) We lack jurisdiction to consider any
issue not embraced by the October 7, 2011 judgment and therefore do not consider
Ivan’s challenges to the court’s final orders regarding spousal support, child support,
and date of separation.
CONTENTIONS
Ivan contends the trial court erred in awarding sole physical and legal custody of
the two younger children to Ulyana. Ivan argues that (1) the trial court could not award
custody (sole or joint) to Ulyana because her no-contest plea to battery charges
involving the girls triggered a rebuttable presumption that placing any of the children in
her custody would be against the best interest of the children and Ulyana failed to rebut
the presumption; (2) the trial court could not award sole custody of the younger children
to Ulyana without first finding, by clear and convincing evidence, that Ivan is “unfit;”
and (3) the trial court abused its discretion by issuing a custody order that separates the
three siblings.
Ivan also contends the trial court abused its discretion by requiring professional
monitors to supervise his visitation, as well as V.’s visitation, with the two younger
children.
Finally, Ivan contends that Family Code sections 3150 to 3153, which provide
for the appointment of minors’ counsel in custody proceedings, are unconstitutional.
STANDARD OF REVIEW
We review custody and visitation orders for abuse of discretion. (In re Marriage
of Burgess (1996) 13 Cal. 4th 25, 32 (Burgess).) Under this standard of review, an
9
appellate court must uphold the trial court’s ruling if it is correct on any basis,
regardless of whether or not that basis was invoked in the trial court. (Montenegro v.
Diaz (2001) 26 Cal. 4th 249, 255 (Montenegro).) In evaluating the factual basis for an
exercise of discretion, we give broad deference to the trial judge. (Rich v. Thatcher
(2011) 200 Cal. App. 4th 1176, 1181 (Rich).) The reviewing court should interfere only
if it finds that under all the evidence, viewed most favorably in support of the trial
court’s action, no judge could reasonably have made the order he or she did. (Ibid.)
“ ‘The burden is on the party complaining to establish an abuse of discretion, and unless
a clear case of abuse is shown and unless there has been a miscarriage of justice
a reviewing court will not substitute its opinion and thereby divest the trial court of its
discretionary power.’ [Citations.]” (Denham v. Superior Court (1970) 2 Cal. 3d 557,
566; Rich, supra, 200 Cal.App.4th at p. 1181.) An appellant’s failure to provide an
adequate record on an issue requires that the issue be resolved against the appellant.
(Maria P. v. Riles (1987) 43 Cal. 3d 1281, 1295.)
DISCUSSION
1. Ulyana Overcame the Section 3044 Rebuttable Presumption
Against An Award of Child Custody to Her that Arose Due to
Her Conviction on Battery Charges
As noted, Ulyana pled “no contest” to charges of simple battery arising out of the
July 25, 2008 confrontation between her and her two daughters. Ivan correctly asserts
Ulyana’s conviction triggered a rebuttable presumption that placing the children in her
custody is not in their best interest under Family Code, section 3044, subdivision (a).5
He argues no substantial evidence supports the trial court’s finding that Ulyana
overcame the presumption and therefore the court erred by making an award of child
custody to Ulyana.
Section 3044, subdivision (a), provides that, “[u]pon a finding by the court that
a party seeking custody of a child has perpetrated domestic violence against . . . the
child or the child’s siblings within the previous five years, there is a rebuttable
5
All further code references are to the Family Code unless otherwise specified.
10
presumption that an award of sole or joint physical or legal custody of a child to
a person who has perpetrated domestic violence is detrimental to the best interest of the
child, pursuant to Section 3011. This presumption may only be rebutted by
a preponderance of the evidence.” (Fam. Code, § 3044, subd. (a).) Subdivision (b) lists
factors a court must consider to determine whether the presumption has been rebutted,
including whether the perpetrator has completed required treatment programs or
parenting programs, complied with the terms of a restraining order, and committed any
further acts of domestic violence. (Fam. Code, § 3044, subd. (b)(1)-(7).) “[W]here the
section 3044 presumption has been rebutted, there is no statutory bar against an award
of joint or sole custody to a parent who was the subject of the order.” (Keith R. v.
Superior Court (2009) 174 Cal. App. 4th 1047, 1055.)
Ivan first argues that the trial court failed to consider the factors set forth in
section 3044. However, in its statement of decision, the court specifically referred to
section 3044 and confirmed that the presumption against an award of child custody to
Ulyana arose as a result of the battery conviction. The court then observed that Ulyana
completed a parenting class, obtained individual therapeutic treatment from
a psychiatrist and a social worker, and not only received but welcomed services from
the social worker assigned to her case--all relevant factors set forth in section 3044,
subdivision (b).
Ivan also asserts that Ulyana failed to rebut the section 3044 presumption. At the
custody trial, the court received into evidence five declarations submitted by Ulyana.
The trial court’s comments at the trial suggest Ulyana’s declarations provide evidence
she complied with the criminal court’s orders to complete parenting classes and to get
mental health treatment and support. Unfortunately, we cannot evaluate whether this
evidence was sufficient to rebut the section 3044 presumption because Ivan failed to
include these declarations in the appellate record. Without a complete record, we
cannot undertake a meaningful review of Ivan’s argument on appeal and must resolve
the issue against him. (See Foust v. San Jose Construction Co., Inc. (2011)
198 Cal. App. 4th 181, 187.)
11
2. The Trial Court Applied the Correct Legal Standard in its
Custody and Visitation Awards
Ivan contends that even if the court found Ulyana rebutted the section 3044
presumption--and therefore was not prohibited from awarding custody to her--the court
was required to make a joint custody award.
“ ‘Sole legal custody’ means that one parent shall have the right and the
responsibility to make the decisions relating to the health, education, and welfare of
a child.” (Fam. Code, § 3006.) “ ‘Joint legal custody’ means that both parents shall
share the right and the responsibility to make” those decisions. (Fam. Code, § 3003.)
To be workable, joint legal custody requires the parents’ willingness to cooperate in
making medical, educational, and psychological decisions. (See In re Marriage of
McLoren (1988) 202 Cal. App. 3d 108, 115-116 [in most circumstances, children’s best
interests are served by joint legal custody, but where there is acrimony “the reality of
their parents’ conflicts unavoidably hampers the realization of that goal”].)
In this case, the trial court awarded sole rather than joint legal and physical
custody of the children because it concluded Ivan and Ulyana are unable to
communicate effectively or make decisions together and therefore would be unable to
implement a joint custody award. Specifically, the court found that “the ability of these
two parties to communicate is so compromised, if not to the point of total deterioration,
that it is impossible for them to be expected to communicate with one another to decide
issues involving their children’s health, education and welfare . . . . ” The court cited
one example in its statement of decision: “[A]s recently as October 2, 2010, [Ivan’s]
telephone conversation with [Ulyana] resulted in another referral to DCFS against
[Ulyana]. This latest referral to DCFS was based on the way [Ivan] misconstrued
a telephone conversation with [Ulyana]. The Court finds that [Ivan] cannot even have
a non-hostile telephone communication with [Ulyana].”
Ivan cites no evidence presented in the trial court to contradict the court’s
conclusion that the parties are unable to communicate effectively with each other and
therefore would be unable to implement a joint custody award. Instead, Ivan highlights
12
selected evidence (or, in some cases, allegations) that he believes counsels in favor of
awarding him sole legal and physical custody of the younger children. In so doing, Ivan
violates the substantial evidence rule. (See Foreman & Clark Corp. v. Fallon (1971)
3 Cal. 3d 875, 881 [appellants challenging a decision for lack of substantial evidence
“are required to set forth in their brief all the material evidence on the point and not
merely their own evidence”].) Ivan also invites us to reweigh the evidence and ignore
the trial court’s credibility determinations, which we decline to do. (See Kelly v. CB &
I Constructors, Inc. (2009) 179 Cal. App. 4th 442, 452 [noting that, on substantial
evidence review, appellate court will not “reassess the credibility of witnesses or
reweigh the evidence”].)
Rather than address the court’s specific findings in this case, Ivan devotes much
of his opening brief to the general notion of parental rights. As Ivan notes, the United
States Supreme Court consistently has held that the interest of parents in the care,
custody, and control of their children is a fundamental liberty interest protected by the
Due Process Clause of the Fourteenth Amendment. (See, e.g., Troxel v. Granville
(2000) 530 U.S. 57, 65-66 [discussing Supreme Court precedent].) Ivan then asserts
that, because parental rights are constitutionally protected, a trial court may not make an
award of sole legal and physical custody to one parent without first finding, by clear and
convincing evidence, that the noncustodial parent is “unfit.” That is not the law in
California.
First, the heightened “clear and convincing evidence” standard does not apply in
this case. Ivan directs us to section 3041, subdivision (b), which does refer to the “clear
and convincing evidence” standard. However, section 3041 applies only when a court
awards custody of a child to a nonparent over the objection of the child’s parent. (Fam.
Code, § 3041, subd. (a).) Section 3041 is plainly inapplicable here.
Second, a trial court is not required to find that one parent is “unfit” before it
makes a sole custody award to the other parent. The standards applicable to custody
awards in California have been frequently considered by both our courts and our
Legislature. Our Supreme Court has explained that, “[u]nder California’s statutory
13
scheme governing child custody and visitation determinations, the overarching concern
is the best interest of the child.” (Montenegro, supra, 26 Cal.4th at p. 255.) To the
extent Ivan’s arguments assert the supremacy of his parental rights over the rights of his
children as well as the state’s interest in protecting them, we note our Legislature has
propounded a detailed statutory scheme that balances these interests. To that end, the
Family Code provides the trial court “may, during the pendency of a [marital
dissolution] proceeding or at any time thereafter, make an order for the custody of
a child during minority that seems necessary or proper.” (Fam. Code, § 3022.)
Recognizing that every child and each situation is different, the Legislature has vested
the courts and families with “the widest discretion to choose a parenting plan that is in
the best interest of the child.” (Fam. Code, § 3040, subd. (c).) “When determining the
best interest of the child, relevant factors include the health, safety and welfare of the
child, any history of abuse by one parent against the child or the other parent, and the
nature and amount of contact with the parents.” (Montenegro, supra, 26 Cal.4th at
p. 255, citing Fam. Code, § 3011.)
Further, and to Ivan’s point, while a court may consider a range of factors in
order to decide what is in a child’s best interest, no California court has held that a court
must find that one parent is “unfit” as a prerequisite to an award of sole legal and
physical custody to the other parent. To the contrary, the Family Code does not even
establish a preference or presumption in favor of joint custody. Section 3040,
subdivision (b), provides: “This section establishes neither a preference nor
a presumption for or against joint legal custody, joint physical custody, or sole custody,
but allows the court and the family the widest discretion to choose a parenting plan that
is in the best interest of the child.” (Fam. Code, § 3040, subd. (c); see Burgess, supra,
13 Cal.4th at p. 34.) “Similarly, although Family Code section 3020 refers to ‘frequent
and continuous contact,’ it does not purport to define the phrase ‘frequent and
continuous’ or to specify a preference for any particular form of ‘contact.’ Nor does it
include any specific means of effecting the policy, apart from ‘encourag[ing] parents to
14
share the rights and responsibilities of child rearing.’ ” (Burgess, supra, 13 Cal.4th at
pp. 34-35.)
The trial court properly applied these well-established principles in its decision
and did not abuse its discretion by awarding sole, rather than joint, custody of the
children.
4. The Court Did Not Abuse Its Discretion by Making a Custody
Award That Separates the Children
Ivan also contends the trial court abused its discretion by issuing a custody order
that separates V. from her two younger siblings. As Ivan observes, a custody award that
separates siblings is disfavored. “Children are not community property to be divided
equally for the benefit of their parents. The parents of these children have chosen to
divorce each other. The children have not chosen to divorce each other. At a minimum,
the children have a right to the society and companionship of their siblings.” (In re
Marriage of Williams (2001) 88 Cal. App. 4th 808, 814 (Williams).) However, although
maintaining sibling bonds is a significant factor in a custody decision, it “is not a
dispositive one.” (In re Marriage of Steiner & Hosseini (2004) 117 Cal. App. 4th 519,
529 (Steiner & Hosseini); see also Williams, supra, at p. 814 [“We can envision a case
in which an extraordinary emotional, medical or educational need, or some other
compelling circumstance, would allow the separation of siblings”].)
Steiner & Hosseini involved circumstances strikingly similar to the case before
us. There, the trial court presided over a lengthy and acrimonious divorce proceeding in
which the parents fought bitterly over everything, including the children. Ultimately,
the court awarded sole physical and legal custody of one child to the father (Steiner) and
sole physical and legal custody of the other child to the mother (Hosseini). The court
separated the children because it “found substantial evidence that Hosseini had
‘poisoned’ the relationship between Steiner and his elder son, and that custody of the
younger son was perhaps the only way to prevent that kind of alienation from occurring
with the younger son.” (Steiner & Hosseini, supra, 117 Cal.App.4th at p. 529.) The
Court of Appeal affirmed, noting that in making a custody award, a trial judge properly
15
takes “into consideration which parent, as primary custodian, will best facilitate a good
relationship with the other parent. [Citations.]” (Ibid.)
Here, as in Steiner & Hosseini, the trial court separated the children because it
found that Ivan “poisoned the relationship between [Ulyana] and the parties’ eldest
daughter, [V.], to the point that she became a participant in [Ivan’s] alienation campaign
against [Ulyana]. Awarding [Ulyana] custody of the two younger children, while
ordering that [Ivan] and the siblings have monitored visitations was, under the current
circumstances, the only way to prevent further alienation of the younger siblings from
their mother.” Further, the court found the younger children “have little chance of being
independently able to maintain a relationship with their mother in the face of resistance
on the part of [V.] and [Ivan’s] intractable and unabated belief that [Ulyana] must be
effectively removed from her children’s lives.” Substantial evidence supports these
findings.
The trial court here also considered which parent, as primary custodian, would
better facilitate a relationship between the children and the other parent. (See Fam.
Code, § 3020, subd. (b) [“It is the public policy of this state to assure that children have
frequent and continuing contact with both parents”]; and see In re Marriage of
Moschetta (1994) 25 Cal. App. 4th 1218, 1234 [“It is common knowledge among family
law practitioners that the quickest way for a parent to lose primary physical custody is
for that parent to obstruct the visitation rights of the other parent”].) The court found
that Ulyana “encourages a relationship between the children and their father” and
“consistently made the children available for [Ivan’s] weekly, court-ordered monitored
visitations.” By contrast, the court found that Ivan “has not supported a meaningful,
healthy relationship between [Ulyana] and the children,” and that “as recently as the last
day of trial, [Ivan] remains critical of [Ulyana] and believes that she should only be
seeing the children in a monitored setting.” Substantial evidence also supports these
findings.
We find no abuse of discretion in the trial court’s decision to separate the
siblings.
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5. The Court Did Not Abuse Its Discretion By Requiring
Monitored Visitation
Ivan also contends the trial court abused its discretion by requiring professional
monitors to be present at his, as well as V.’s, visits with the two younger children.
Trial courts generally have broad discretion in defining a parent’s reasonable
visitation rights and establishing a visitation schedule that serves the child’s best
interest. (Fam. Code, § 3100(a); see Hogoboom & King, Cal. Practice Guide: Family
Law (The Rutter Group 2015) ¶ 7:485, pp. 7-186 to 7-187.) For the reasons already
explained, the best interest of a child is served by an arrangement that prevents parental
alienation. (See Steiner & Hosseini, supra, 117 Cal.App.4th at p. 529.)
Here, the trial court found that “monitored visitation was, under the current
circumstances, the only way to prevent further alienation of the younger siblings from
their mother.” More particularly, the trial court found that Ivan, and by extension V.,
persistently attempted to alienate the younger children from their mother. With respect
to Ivan, the court found that: (1) Ivan “has engaged in an insidious campaign over time
to alienate the children from their mother whom he characterized as a bad mother”; (2)
Ivan “has shown a history of conflict in this case . . . . Virtually every person involved
in this case has, in some fashion or another, come under abusive attack by [Ivan]”; (3)
in the opinion of the custody evaluator, “[Ivan] was manipulative, intimidating, isolating
and controlling . . . and . . . has engaged in activities designed to alienate the children
from their mother”; and (4) Ivan seeks to eliminate Ulyana from the children’s lives.
Substantial evidence supports these findings.
With respect to V., the court found that: (1) V. behaves in an uncharacteristically
rude and disruptive manner during her interactions with Ulyana; (2) “[V.] has been co-
opted by [Ivan] to the point that she has an unwavering animus toward her mother, and
it continues, even though, in most recent times, Dr. Kaye [V.’s therapist] noted an
improvement in the relationship with [Ulyana] and [V.];” (3) V. speaks badly about her
mother and says that she does not like her mother; (4) one DCFS social worker believes
V. is being emotionally abused by Ivan; and (5) the younger children “have little
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chance of being independently able to maintain a relationship with their mother in the
face of resistance on the part of [V.] and [Ivan]’s intractable and unabated belief that
[Ulyana] must be effectively removed from her children’s lives.” Substantial evidence
also supports these findings.
We find no abuse of discretion in the court’s visitation monitoring requirement.
6. The Minors’ Counsel Provisions of the Family Code
Are Not Unconstitutional
Sections 3150 through 3153 govern the appointment of independent counsel for
minors in a custody or visitation proceeding. Specifically, section 3150 provides: “If
the court determines that it would be in the best interest of the minor child, the court
may appoint private counsel to represent the interests of the child in a custody or
visitation proceeding, provided that the court and counsel comply with the requirements
set forth in Rules 5.240, 5.241, and 5.242 of the California Rules of Court.” (Fam.
Code, § 3150, subd. (a).) Section 3151, subdivision (a), explains the role of minors’
counsel is “to gather evidence that bears on the best interests of the child, and present
that admissible evidence to the court in any manner appropriate for the counsel of
a party.” (Fam. Code, § 3151, subd. (a).) Subdivision (b) gives minors’ counsel, among
other things, the right to take any action that is available to a party to the action,
including filing pleadings, presenting evidence, and generally participating in ongoing
litigation. (Fam. Code, § 3151, subds. (b),(c).) In addition, minors’ counsel has the
right to refuse physical or psychological examinations not ordered by the court, and to
assert or waive litigation privileges. (Fam. Code, § 3151, subd. (c)(6),(7).) Here, the
trial court appointed minors’ counsel for the children at the first hearing.
Ivan seems to believe the appointment of minors’ counsel is unconstitutional,
both as a general matter and in his case in particular. Central to his argument is his
representation of the authority exercised by minors’ counsel, which he describes as
“mak[ing] major decisions in the children’s life, i.e., whether to bring children to court
ordered visitation,” and “making decisions to deny Ivan even monitored visitations,
demand[ing] and receiv[ing] the order to have two monitors for each visitation,
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and . . . advocating in the court for continuous deprivation of custody to the parent.”
Ivan also asserts that minors’ counsel have “all kind [sic] of privileges and immunities
from been [sic] accountable for their deeds.” Ivan then argues that this vast scope of
authority “pretty much deprives parents of children’s legal custody or at least infringes
parents[’] fundamental right to child’s legal custody.”
We reject Ivan’s argument because his description of the roles and
responsibilities of minors’ counsel generally and in this case is grossly inaccurate. The
Family Code does not vest minors’ counsel with authority to deprive parents of their
fundamental rights vis-a-vis their children. Moreover, there is no evidence that in this
case the trial court allowed minors’ counsel to exercise any authority beyond that the
Family Code provides.
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DISPOSITION
The judgment is affirmed. Respondent is awarded costs on appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
EGERTON, J.*
WE CONCUR:
EDMON, P. J.
ALDRICH, J.
*
Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant
to article VI, section 6 of the California Constitution.
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