Josephine G. v. Charles G. CA1/2

Filed 12/22/20 Josephine G. v. Charles G. CA1/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or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.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION TWO
JOSEPHINE G.,
Plaintiff and Appellant,
A157560
v.
(San Mateo County Super.
CHARLES G., Ct. No. 16FAM01653)
Defendant and Respondent.
Josephine G. appeals from the court’s statement of decision, issued
after a bench trial, in which the court ordered that Josephine and her former
husband, Charles G., are to have joint custody of, and equal time with, their
son, who was 11 years old at the time of trial. Josephine contends that the
trial court abused its discretion on several legal grounds. We conclude her
arguments amount to little more than a request that we reweigh the evidence
and the credibility of the parties’ dueling expert witnesses, neither of which is
appropriate under our abuse of discretion standard of review. We affirm.
BACKGROUND
Josephine and Charles were married in October 2001 and their son was
born in 2007. The couple separated in December 2013 and Charles moved
out of the family home. He filed a petition for dissolution of their marriage in
November 2016. Pending the outcome of the case, they shared custody of
their child, with Josephine caring for him 60 percent of the time and Charles
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caring for him 40 percent of the time. Upon the court’s dissolution of the
marriage, it ordered this arrangement to remain in place until a custody
evaluation was completed. Josephine sought this evaluation because she had
significant concerns about Charles’s ability to parent, including based on
journal entries he had written some years before that she had found in her
home and read after he moved out.
The court ordered the parties to consider four child custody evaluators.
They agreed on Dr. Robin Press, whom the court appointed to conduct the
evaluation in April 2017. Dr. Press was instructed to conduct “psychological
testing of the parents and the minor child, and make recommendations as to
custody, a parenting plan, a holiday schedule, and referrals to support
services for the parents as deemed appropriate, according to the best
interests of the parties’ minor child, including but not limited to
consideration of the factors set forth in Family Code Section 3011, whether
visitation should be limited pursuant to Family Code Section 3027.5[,
subdivision] (b) and whether either parent is engaging in restrictive
gatekeeping.”
I.
Charles’s Writings
Josephine highlights numerous journal entries and writings by Charles
from 2011 to 2016, with most of them written by him between 2011 and 2013,
that concern her and indicate that Charles had been emotionally abusive to
her and their son. These entries were admitted below as confidential
documents and discussed at trial, the record of which is contained in
reporter’s transcripts that have been filed under seal with this court;
Josephine has discussed them in appellate briefs also filed under seal with
this court. We have reviewed these entries and writings, and Josephine’s
2
contentions regarding them, but will refrain from discussing them or the
record contained in the reporter’s transcripts in detail here because of their
confidential nature.
II.
Dr. Press’s Comprehensive Child Custody Evaluation Report
Dr. Press issued a 40-page comprehensive child custody evaluation
report dated October 30, 2017. She described the child as “an adorable,
bright, articulate, well-mannered child” who was “consistently alert,
attentive and well-oriented,” “appeared somewhat shy and seemed hesitant
about communicating his feelings, perceptions and preferences” and “seemed
eager to please and reluctant to offend.” The child reported feeling safe with
both parents, and denied any experiences of neglect, physical abuse, verbal
abuse, sexual molestation or exposure to domestic violence. According to Dr.
Press, his psychological test results indicated he had “numerous adaptive
strengths that enable him to function competently and predictably. However,
he is distressed because he loves both parents and is in an impossible loyalty
bind. [His] mild to moderate anxiety and underlying depression is likely to
be situational and transitory. . . . [He] is clearly bearing the brunt of his
parents’ custody conflicts, but he is too nice, too sensitive, too conflict
avoidant and too protective of them, especially his mother, to be more direct
about his feelings, needs and preferences.”
Press summarized numerous concerns and allegations that Josephine
expressed about Charles and his parenting that were based on Josephine’s
own observations and Charles’s writings. Josephine “expressed concerns that
during the marriage [Charles] demonstrated disturbing patterns of thinking,
behaving and relating to others which she fears may pose a risk to [the
child],” including that he engaged in what Josephine considered to be
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domestic abuse of an emotional nature. Dr. Press further reported that
Josephine said Charles’s “private journal entries” were very validating to her
because they confirmed what she suspected, and that he was aware of what
he was doing although he had denied it up until 2013. Josephine “explained
that she was only willing to violate her own integrity about reading
[Charles’s] private journal when it was about [their son].”
Each of the parents and the child were given a battery of psychological
tests.1 Dr. Press reported that Josephine’s tests showed she had “numerous
resources that enable her to function in a highly competent manner,” was
“bright, articulate, resilient, well-organized, cheerful, collaborative and
empathic,” but could be “morally rigid, judgmental and unforgiving,
maintaining unrealistically high standards for others while avoiding
acknowledgement of her contribution to problems.” Dr. Press added,
“[Josephine’s] ability to understand people accurately and think logically can
be compromised by her preoccupations with past grievances. These findings,
coupled with her high anxiety, create a potential for restrictive gatekeeping
and difficulties in co-parenting.”
According to Dr. Press, Charles’s test results showed he was “resilient,
competent and productive in managing everyday tasks and extraordinary
challenges. He can be quirky in his ideas and perspective on the world as is
the case with many creative people. Despite his remarkable
accomplishments, [Charles’s] mixed feelings about himself generates a self-
defeating behavior pattern that enjoins others to devalue him as he toggles
1 Dr. Press administered the Beck Depression Inventory-2 (BDI-2); the
Beck Anxiety Inventory (BAI); the Minnesota Multiphasic Personality
Inventory -2 (MMPl-2); the Millon Clinical Multiaxial Inventory-III (MCMI-
lll); and the Rorschach Inkblot Test and the Social Responsiveness Scale
Second Edition (SRS-2).
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between needs for approval and fears of criticism. The test findings are
generally within normal limits. There is no evidence to suggest that
[Charles] is unable to function as a competent parent or co-parent.”
Dr. Press also included summaries of information she received from
seven other psychologists and therapists who had worked with Josephine,
Charles and/or the child. None of those who had worked with the parents
expressed any concern about each of their ability to parent the child
effectively, and none of those who had worked with Charles had any safety
concerns about him.
In her summary and assessment, Dr. Press wrote that Josephine and
Charles “share a fundamentally similar perception of their child’s
personality, aptitudes, interests and activities,” had a “consistent view of
[his] strengths and weaknesses with only minor differences” and “maintained
similar expectations, behavioral guidelines and disciplinary approaches.”
Among other things, they had “demonstrated competence in co-parenting”
and were both “nurturing, devoted, conscientious, responsible and capable,”
which had allowed their child to establish “a solid sense of self-esteem and
lovability from which to weather challenges.”
Dr. Press further reported that “[r]esearch trends in child custody
matters indicate that parents’ consistent, predictable, frequent, affectionate
and sensitive behavior towards their child is key to forming and maintaining
meaningful, secure and healthy parent-child relationships after separation
and divorce,” and that “evening and overnight visitation periods boost close,
meaningful parent-child relationships by providing opportunities for
important social interactions and nurturing opportunities that shorter visits
cannot provide.” Dr. Press opined that “[Josephine’s] motivation for
protective gatekeeping appears to be rooted in genuine concerns about
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safeguarding [her child] from harm. However, there is no evidence from any
source to indicate that [the child] is at risk of harm in his father’s care. Thus,
her gatekeeping efforts appear more restrictive than facilitative. [Josephine]
clings to a negative perception of [Charles] as manipulative, sadistic and
remorseless.” Further, “[Josephine’s] negative opinion of [Charles] strongly
influences her perception of [Charles’s] behaviors towards [the child] in ways
that are not entirely accurate.”
Dr. Press was concerned that Josephine “may be indirectly exposing
[the child] to her negative attitudes about [Charles] even though she may not
explicitly criticize or devalue [Charles] in front of [the child].” Josephine had
agreed to reconsider her point of view in the course of Dr. Press’s evaluation
if no evidence supported her concerns, but “[o]ver time, [Josephine] became
even more intent on presenting ‘damning evidence’ about [Charles] as she
learned there was no data to support her concerns about [his] parenting.”
Dr. Press did not find “intimate partner violence” or “child abuse or
neglect” in the case. Further, there was no evidence “to suggest that either
parent is unable to function as a competent parent or co-parent due to mental
health problems.” She concluded that “both parents appear competent to
parent. . . . [The child] needs to maintain a relationship with both parents in
order to feel comfortable and to function optimally. . . . A structured schedule
in which his time with each parent is relatively uninterrupted will enable
him to build separate, meaningful relationships with each parent and to
build his autonomy for coping with the world at large. Minor increases in
[the child’s] time with his father will allow for longer, uninterrupted time
together so that they can continue to develop a close, meaningful
relationship. This minor adjustment in timeshare is determined to be
beneficial to [the child] and, once established, will become part of the
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structured schedule. It is in [the child’s] best interests to have balanced
access to each parent.”
III.
Evidence Presented at Trial
At trial, the parties’ evidence focused on Charles’s writings, testimony
from expert witnesses and their own testimony. Charles sought joint custody
and equal time with their son, which Josephine opposed. She requested sole
legal custody and asked that additional limits be placed on Charles’ time with
their son.
A. Dr. Press’s Testimony About Her Evaluation
Dr. Press’ comprehensive custody evaluation report was admitted into
evidence. Dr. Press testified that she had reviewed Charles’s journal entries
as copied by Josephine (which both parties confirmed Josephine had obtained
without Charles’s permission) in the course of preparing her report. Dr.
Press said she discussed with Josephine her concerns about these entries and
considered them when making her recommendations. Dr. Press also said
that when she was for all intents and purposes finished with her evaluation,
she accommodated Josephine’s request for additional meetings so that
Josephine could fully express her concerns about Charles, but that Josephine
did not present anything new or different during these meetings.
Dr. Press confirmed that she did not find any evidence of intimate
partner violence in the case, or that Charles had behaved inappropriately
with his son, engaged in behavior with other children that posed a risk to his
son, or would not properly oversee their son’s interactions with his paternal
grandmother (one of Josephine’s concerns). Dr. Press also confirmed that she
found no evidence from any source to indicate that the child was at risk of
harm in Charles’s care, and that she thought it was in the child’s best
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interest to have increased time with Charles and balanced access to each
parent.
B. Dr. McCall’s Testimony About Dr. Press’s Evaluation
Josephine presented the expert testimony of Dr. Shawn McCall, who
testified about a report he prepared critiquing Dr. Press’s evaluation report
and about his conclusions. He testified that Dr. Press’s evaluation had “so
many glaring holes and problems” that it was “not usable.” Among other
things, Dr. McCall testified that:
• A “responsible evaluator would look at” Charles’s journal entries
and “be pretty alarmed” by some of his imaginings.
• Charles’s admissions in his writings regarding his treatment of
Josephine and his son were “real, objective data points” about his inner
experience that “bypass all the psychological testing” and “give you the real
deal as to what’s going on in someone’s mind.”
• Dr. Press did not apply the Association of Family and
Conciliation Courts’ Guidelines for the evaluation of intimate partner
violence, which, Dr. McCall testified, “specifically enumerate there needs to
be a section of analysis dedicated . . . just to that topic” rather than an
analysis that was “just smattered throughout the whole report.”
• After Josephine told Dr. Press that therapists had validated
Josephine’s view that Charles had emotionally abused her, Dr. Press did not
re-contact those therapists to inquire about it as “a responsible evaluator”
would have done, instead relying on her “vague and nebulous” inquiries
about whether “everything” was okay.
• Dr. McCall thought there was no data to support Dr. Press’s
conclusion that Josephine engaged in inappropriate “restrictive gatekeeping”
of her son.
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• Charles’s acknowledgement of certain matters in his journal
entries should have caused a competent evaluator to ask follow-up questions
to Charles, but Dr. Press did not do so.
• Dr. Press “just glossed over” Josephine’s “report in the file that
she witnessed” Charles “roughhousing” with their son in a way that seemed
inappropriate to her.
• Although there was concerning evidence of certain behaviors that
Charles experienced as a child that could impact his parenting, Dr. Press did
not address that issue thoroughly in her evaluation.
• Dr. Press did not engage in procedures that shielded her from
forming a bias, instead meeting first with just Charles rather than both
parents to discuss her findings with him; she also reached conclusions while
Josephine was still trying to get information to her, indicating Dr. Press “had
already made her decision.”
Dr. McCall acknowledged that he did not interview the parties, the
child, or the other sources of information contacted by Dr. Press.
C. Dr. Press’s Testimony About Dr. McCall’s Critique
Dr. Press testified that she had reviewed Dr. McCall’s report. She
disagreed with Dr. McCall’s charge she was biased against Josephine. She
had reviewed all the documents both parents had submitted to her, including
Charles’s journal entries. She did not give these entries as much weight as
Josephine wanted because they were “private journals that were not intended
to see the light of day in a public arena. What someone writes in a private
journal may have nothing to do with how they behave in the real world, but I
believe each person is entitled to their own fantasies or thoughts or feelings
that they write in private. That’s why it’s private.” Also, they were “a little
older, so more stale, one could argue less relevant.”
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Dr. Press also testified she was familiar with intimate partner violence
and “[i]n a way” her entire report addressed this issue, so there was no need
for a redundant separate analysis. She indicated that she was familiar with
and had followed both state and national guidelines for child custody
evaluations. Further, she said, she had training and many years of
experience administering and interpreting psychological tests and had been
hired hundreds of times by other mental health professionals to conduct
testing for them. She said she would not make any changes to her report
based on Dr. McCall’s critique, and indicated that this case was “an easy
call.”
D. Other Relevant Evidence
Charles testified to his extensive involvement with his son from birth.
He denied engaging in domestic abuse. He testified that to the extent he had
used terms that referred to “abuse” and the like in his journal entries, he had
done so because Josephine had used such terms in the course of their
relationship. He had come “to agree with those, in part out of appeasement of
her, and so I accepted those labels, but upon reflection later, I recognized that
they didn’t fit with me.” He was critical of the court’s temporary 60/40
custody schedule because neither he nor Josephine had a full weekend with
their son. He was requesting a “2-2-5-5” schedule in order to provide their
son with a more robust and complete life with both parents.
Josephine testified about her concerns regarding Charles and the
troubling behaviors he had engaged in, which testimony was consistent with
what Dr. Press reported she had told her. She also testified that she had felt
Dr. Press had been dismissive of her concerns about Charles. Josephine
acknowledged in her testimony that Charles had never hit her, physically
attacked her, made harassing telephone calls, stalked her, or hacked,
10
accessed or disclosed her e-mails or writings. He had complied with her
limits on delivering Christmas gifts to their son and her bar against taking
their son to a family reunion in Boston, although his son had not seen his
paternal grandparents for four years.
IV.
The Trial Court’s Statement of Decision
In its statement of decision, the court noted that it was not required to
respond to the many evidentiary questions submitted by Josephine in her
request for a statement of decision. It indicated it would focus on a
discussion of ultimate rather than evidentiary facts.
The court declined Josephine’s request to discredit Dr. Press’s
evaluation on the grounds that Dr. Press showed a bias in favor of Charles
and prepared a report with fatal flaws that rendered it unusable. The court
found Dr. Press to be “a neutral and credible” witness and her evaluation to
be persuasive. It noted that the mental health professionals contacted by Dr.
Press affirmed her conclusion that Charles was a competent and safe parent,
and that none of them expressed any concerns about his ability to safely and
appropriately parent his son. It found that “Dr. Press was able to maintain
her objectivity and gather balanced information for both parties and from the
child,” and that “[t]here was nothing presented to the court that would
provide a basis for determining that . . . Dr. Press was biased against
[Josephine].” It further found Dr. Press’s “methodology to be more than
adequate, and any deficiencies did not rise to the level where the court found
reason to discredit her recommendations and conclusions. Dr. Press
presented as a calm and effective expert that answered questions directly and
did not become an advocate for either party.” It was “satisfied that Dr. Press
gathered and synthesized appropriate clinical data to support her
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determination that [Charles] is a safe and competent parent, that an increase
in [Charles]’s time-share will be beneficial to the minor child, and it is in the
child’s best interests to have balanced access to each parent.”
The court agreed with Dr. Press’s determination that there were no
findings of intimate partner violence or child abuse or neglect in the case. It
found that Charles’s private writings did not support a finding that Charles
had perpetrated domestic violence in the previous five years and, therefore,
there was no need to apply Family Code section 3044’s presumption against
awarding sole or joint custody to Charles.2 The court explained, “It is not
clear whether that finding may have been appropriate at some point in the
past, however based on what was submitted to this court at trial there was
not sufficient evidence to make a finding that domestic violence was
committed in this case and specifically at a point after September of 2013.
The abuse alleged by [Josephine] was disputed by [Charles] and there was
not sufficient corroborating evidence of abuse that would rise to the level of
the court making a finding that [Charles] had ‘perpetrated domestic violence’
so as to trigger a Family Code 3044 presumption.” The court also rejected
any contention that Charles left his journals in the family residence for
Josephine to find, or to intimidate or harass her.
2 Family Code section 3044 states in relevant part, “Upon a finding by
the court that a party seeking custody of a child has perpetrated domestic
violence within the previous five years against the other party seeking
custody of the child, or against the child or the child’s siblings, or against any
person in subparagraph (C) of paragraph (1) of subdivision (b) of [Family
Code] Section 3011 with whom the party has a relationship, there is a
rebuttable 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 Sections 3011 and
3020. This presumption may only be rebutted by a preponderance of the
evidence.” (Fam. Code, § 3044, subd. (a).)
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The court stated that it had considered Dr. McCall’s report and
testimony. It “found it difficult to accept Dr. McCall’s opinions without the
shade of him being an advocate” and cited the following examples: “a) on
multiple occasions Dr. McCall stepped out of his role as an expert and instead
advocated for [Josephine]; b) Dr. McCall made arguments to the Court
instead of simply giving objective expert opinions; c) in contravention of his
expert role, Dr. McCall would not identify any strengths in Dr. Press’ report
and instead stated to the Court there was nothing at all to be gained from Dr.
Press’ report.”
The court concluded that, based on its assessment of the evidence and
in careful consideration of the health, safety and welfare of the child, it was
in the child’s best interests to have a continuous and close relationship with
both parents. It found that, “[f]or this purpose, the Court has no concerns
about [Charles’s] parenting of the minor. [Charles] has shown to the
satisfaction of the Court that he behaves appropriately and in a manner that
the Court would expect of any parent with the minor. Given the Court’s
finding that both parents have demonstrated over the past few years
competence in providing the minor child with stability, predictability, and
consistency for optimal security and growth, it is the obligation of this Court
to ensure the minor child has frequent and continuing contact with both
parents and to encourage the parents to share the rights and responsibilities
of parenting.” The court ordered that the parents would have joint custody of
their child and share equal time with him.
Josephine filed a timely notice of appeal.
DISCUSSION
Josephine argues on multiple grounds that the trial court’s order that
she and Charles have joint custody over, and share equal time with, their
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child has no reasonable basis and, therefore, constitutes an abuse of
discretion. None of her arguments are persuasive.
I.
Relevant Legal Standards
“We review custody orders . . . for an abuse of discretion, and apply the
substantial evidence standard to the court’s factual findings. [Citation.] A
court abuses its discretion in making a child custody order if there is no
reasonable basis on which it could conclude that its decision advanced the
best interests of the child” or if the court “applies improper criteria or makes
incorrect legal assumptions.” (In re Marriage of Fajota (2014)
230 Cal. App. 4th 1487, 1497, italics omitted; see also Ellis v. Lyons (2016)
2 Cal. App. 5th 404, 418 [custody order “infected by legal error” was abuse of
discretion].) The court also abuses its discretion if it does not engage in
reasoned judgment, fails to base its decision on all the evidence before it and
does not maintain impartiality. (In re Marriage of Schwartz (1980)
104 Cal. App. 3d 92, 95 [reversing ruling that “harbored and exhibited an
unshakable prejudice against” a court-approved custody arrangement].)
The “trial courts have broad powers and have the widest discretion to
fashion a custody and visitation plan that is in the child’s best interest . . . .”
(Heidi S. v. David H. (2016) 1 Cal. App. 5th 1150, 1162.) We do not reverse
“unless a trial court’s determination is arbitrary, capricious, or patently
absurd.” (Ibid.) Also, we are mindful that “ ‘ “[t]he trial judge, having heard
the evidence, observed the witnesses, their demeanor, attitude, candor or lack
of candor, is best qualified to pass upon and determine the factual issues
presented by their testimony. This is especially true where the custody of
minor children is involved.” ’ ” (Catherine D. v. Dennis B. (1990)
220 Cal. App. 3d 922, 931.) “As the exclusive judge of the credit and weight to
14
be given to the testimony of a witness, the trier of fact may reject the
testimony of a witness even if . . . it is uncontradicted.” (Jennifer K. v.
Shane K. (2020) 47 Cal. App. 5th 558, 579.) “ ‘[I]n a bench trial, the trial court
is the “sole judge” of witness credibility. [Citation.] The trial judge may
believe or disbelieve uncontradicted witnesses if there is any rational ground
for doing so. [Citation.] The fact finder’s determination of the veracity of a
witness is final. [Citation.] Credibility determinations thus are subject to
extremely deferential review.’ ” (Ibid.)
II.
The Court Did Not Misapply the Burden of Proof.
Josephine first argues that the trial court abused its discretion by
saddling her with the burden of proof, even though Charles was the
petitioner. She points to the court’s decision to allow her to begin closing
argument and present a rebuttal and the court’s statement, made in the
course of considering whether to consider Charles’s confidential journal
entries that Dr. Press reviewed as part of her evaluation, that “looking at all
the burdens here, really in some ways obviously the burden is more on
[Josephine] to show to the Court why the Court shouldn’t follow this expert
recommendation.” Josephine is incorrect.
Josephine argues that Charles had the burden as the petitioner seeking
a change in circumstances, as in In re Marriage of Schwartz, supra,
104 Cal.App.3d at page 96. It is true that this dispute was initiated when
Charles petitioned for a permanent custody order in which the parties shared
custody and equal time regarding their child, a change in the previous 60-40
division favoring Josephine that was a part of the court’s temporary custody
order. However, Charles’s petition presented the court with a request that it
issue a permanent custody order for the first time. In that circumstance, we
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are not persuaded that either party had the burden of proof. Rather, “[t]he
trial court is always bound to make a custody decision based upon the child’s
best interest. But depending upon the posture of the case, the trial court will
use either the ‘best interest’ analysis or the ‘changed circumstances’ analysis.
The best interest analysis is used when making a permanent custody
determination initially. ‘In an initial custody determination, the trial court
has “the widest discretion to choose a parenting plan that is in the best
interest of the child.” (Fam. Code, § 3040, subd. (b).) It must look to all the
circumstances bearing on the best interest of the minor child.’ [Citation.] [¶]
The changed circumstances test requires a threshold showing of detriment
before a court may modify an existing final custody order that was previously
based upon the child’s best interest.” (Ragghanti v. Reyes (2004)
123 Cal. App. 4th 989, 996.)
But even assuming for the sake of argument that Charles had the
burden of proving that his proposed shared custody arrangement was in the
child’s best interest, the trial court did not mistakenly assign this burden to
Josephine. The court’s comment that Josephine had the burden of showing
the court it should not follow Dr. Press’s recommendation, read in context,
was simply the court’s way of saying it found Dr. Press’s evaluation and
recommendations persuasive. That the court allowed Josephine to argue first
in closing argument and present a rebuttal did not establish that the court
had assigned her the burden of proving that custody should not be equally
shared. Again, it indicated only that the court found Dr. Press credible and
convincing and thus gave Josephine the opportunity to persuade the court it
should not follow her recommendation. The court’s statement of decision
specifically referred to its obligation to review the totality of the
circumstances and make a decision that was in the child’s best interest, and
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it did not refer to any burden of proof held by Josephine, or assign any such
burden to her. In short, Josephine’s argument is without merit.
III.
The Trial Court Did Not Abuse Its Discretion by “Rubberstamping”
Dr. Press’s Report or Ignoring Josephine’s Allegations and Concerns.
Next, Josephine argues that the trial court “abrogated” its duty to
consider Charles’s purported history of domestic abuse of an emotional
nature against her, including by relying on Dr. Press’s report, which
supposedly considered spousal abuse to be irrelevant to a custody
determination and failed to analyze Charles’s abuse and other inappropriate
behavior. Again, Josephine is incorrect. Her arguments ignore Dr. Press’s
and the court’s consideration of the issues she raises, and amount to a
request that we reweigh the evidence regarding the reports and testimony of
the dueling experts in this case, Dr. Press and Dr. McCall.
According to Josephine, Dr. Press relied on the “incorrect legal theory”
that domestic abuse was not relevant to a custody evaluation based on her
agreement to a proposition framed by Josephine’s counsel during cross
examination that “a parent in a marriage is not the same thing as a parent in
a parent role.” Dr. Press’s response to the question reflected her view that
the dynamic that had occurred during Josephine and Charles’s marriage was
not as relevant as what was happening in their parenting in the present,
rather than a statement that spousal abuse is categorically irrelevant to child
custody. Neither this, nor other purported failings that Josephine refers to
(such as Dr. Press’s failure to ask Charles about specific journal entries),
negate the unmistakable, clear indications in the record that we have
discussed in the background section. Josephine ignores that Dr. Press
considered all of Josephine’s allegations and concerns, including those based
on Charles’s journal entries, gave Josephine the opportunity to provide as
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much information as she could regarding her concerns, spoke to other mental
health professionals who had worked with Charles to determine if they had
any concerns about his parenting, and reached her conclusions about
Charles’s parenting only after doing all of the above.
Further, Josephine relies heavily on Dr. McCall’s view of the fatal flaws
in Dr. Press’s report and that Dr. Press was incompetent. In doing so,
Josephine fails to grapple with the fact that the court was entitled to and did
the reject Dr. McCall’s testimony for lack of credibility based on his apparent
advocacy and lack of neutrality. Josephine’s comment that the court’s
rejection was “baseless” because Dr. McCall’s critiques were, in her view,
accurate is misguided in that it fails to recognize the limits on our role as an
appellate court.
“ ‘[A]lthough we must ensure that evidence is reasonable, credible, and
of solid value, nonetheless it is the exclusive province of the trial judge or jury
to determine the credibility of a witness and the truth or falsity of the facts
on which the determination depends. [Citation.] Thus, if the verdict is
supported by substantial evidence, we must accord due deference to the trier
of fact and not substitute our own evaluation of a witness’s credibility for that
of the fact finder.’ [Citation.] This is true even in the context of expert
testimony.” (People v. Poulsom (2013) 213 Cal. App. 4th 501, 518; accord,
People v. Mercer (1999) 70 Cal. App. 4th 463, 466-467 [appellate court was not
free to reweigh or reinterpret expert credibility and conclusions resolved
against defendant by the jury].)
Here, the trial court was within its discretion to discredit Dr. McCall’s
complete rejection of Dr. Press’s conclusions in their entirety and of her
competency, and to agree with Dr. Press that the case did not involve
intimate partner domestic violence. This is particularly the case in light of
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Josephine’s heavy reliance on Charles’s confidential reflections about his own
behavior in his journal entries rather than on corroborated examples of his
conduct that could have qualified as “domestic violence”3 and triggered the
Family Code section 3044 presumption against custody.4 Josephine also
overlooks her own acknowledgment during her testimony that Charles had
never hit her, physically attacked her, made harassing telephone calls,
stalked her, or hacked, accessed or disclosed her e-mails or writings. We will
not second-guess the trial court’s conclusions that Dr. Press was a neutral
and credible witness and that Dr. McCall was not.
In short, the court did not abrogate its duty, but instead acted within
its discretion in considering Dr. Press’s and Dr. McCall’s credibility and
conclusions. It did not ignore Josephine’s allegations and concerns regarding
Charles’s purported history of domestic abuse, and it is not within our role as
appellate judges to reweigh or second-guess the trial court’s determination of
the credibility of the expert witnesses.
3 Notably, there is no evidence in the record that during or after their
marriage Josephine ever sought a domestic violence restraining order against
Charles, sought to bar, or to have supervised, his visits with their son after
Charles left the home or under the court’s temporary order, or made any
reports to the police or child protective services about Charles’s behavior.
4 Family Code section 3044, subdivision (c) provides, “For purposes of
this section, a person has ‘perpetrated domestic violence’ when the person is
found by the court to have intentionally or recklessly caused or attempted to
cause bodily injury, or sexual assault, or to have placed a person in
reasonable apprehension of imminent serious bodily injury to that person or
to another, or to have engaged in behavior involving, but not limited to,
threatening, striking, harassing, destroying personal property, or disturbing
the peace of another, for which a court may issue an ex parte order pursuant
to Section 6320 to protect the other party seeking custody of the child or to
protect the child and the child’s siblings.”
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IV.
The Court Did Not Make Incorrect Legal Assumptions.
Finally, Josephine argues that the trial court abused its discretion by
making an incorrect legal assumption, in that the court ignored that the
public policy in favor of a child having frequent and continuing contact with
both parents is subordinate to the health, safety and welfare of the child, as
mandated by Family Code section 3020.5 This argument is also premised on
Josephine’s contention that the trial court should have found that Charles
had engaged in domestic violence of an emotional nature but failed to do so.
Again, substantial evidence supports the trial court’s findings.
DISPOSITION
The judgment is affirmed.
5 Family Code section 3020 provides in relevant part:
“(a) The Legislature finds and declares that it is the public policy of this
state to ensure that the health, safety, and welfare of children shall be the
court’s primary concern in determining the best interests of children when
making any orders regarding the physical or legal custody or visitation of
children. The Legislature further finds and declares that children have the
right to be safe and free from abuse, and that the perpetration of child abuse
or domestic violence in a household where a child resides is detrimental to
the health, safety, and welfare of the child.
“(b) The 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, or
ended their relationship, and to encourage parents to share the rights and
responsibilities of child rearing in order to effect this policy, except when the
contact would not be in the best interests of the child, as provided in
subdivisions (a) and (c) of this section and Section 3011.
“(c) When the policies set forth in subdivisions (a) and (b) of this section
are in conflict, a court’s order regarding physical or legal custody or visitation
shall be made in a manner that ensures the health, safety, and welfare of the
child and the safety of all family members.”
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STEWART, J.
We concur.
KLINE, P.J.
MILLER, J.
Josephine G. v. Charles G. (A157560)
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