Leroy C. v. Sarah T. CA2/2

Filed 11/3/22 Leroy C. v. Sarah T. CA2/2
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION TWO

LEROY C., B305384, consolidated with
B307120, B310080,
Respondent, B314681

v. (Los Angeles County
Super. Ct. No. BF034698)
SARAH T.,

Appellant.

APPEAL from the orders of the Superior Court of Los
Angeles County, Lynn H. Scaduto, Judge. Affirmed.

Law Offices of J. Ellie Sweeney and J. Ellie Sweeney;
Heather M. Patrick; Complex Appellate Litigation Group,
Claudia Ribet, Jessica M. Weisel, and Kelly Woodruff for
Appellant.
 Holstrom, Block & Parke, Ronald B. Funk, and Samantha
K. Pruett for Respondent.

******
After an 11-day evidentiary hearing, a family court
modified an existing custody order that had granted the parents
of a now 14-year-old girl split custody to give the father full legal
and physical custody and to severely limit the mother’s
interactions with the girl to a few hours of conjoint therapy each
month. The court’s 37-page written order detailed its view that
the girl was endangered by the mother’s years-long campaign of
repeatedly falsely reporting that the father had abused the girl,
each report of which touched off a procession of examinations,
interviews, court proceedings, and therapy. The court also
granted the father’s subsequent request to move with the girl to
Virginia. The court then awarded sanctions against mother for
making false allegations and frustrating the policy of the law to
promote the settlement of litigation. Mother launches a
multifarious attack on all of these orders. Because her
arguments lack merit, we affirm all of the family court’s orders.
FACTS AND PROCEDURAL BACKGROUND
I. The Family
Sarah T. (mother) and Leroy C. (father) have one child,
Shyla. Shyla was born in California, in July 2008.
II. Mother Initially Has Sole Physical Custody of Shyla,
and Repeatedly Accuses Father of Abusing Shyla
Around the time Shyla was born, father filed a petition to
establish his parentage. For the next four years, father lived in
Virginia while mother and Shyla remained in California. Father
moved to California in 2012.

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 Soon after father moved to California, mother sought a
restraining order to protect herself and Shyla on the ground that
Shyla told her that father had sexually molested her. Mother
said she sought the order “[a]t the instruction” of law
enforcement. Father vehemently denied the allegations.
Hedging its bets, the family court denied a restraining order
protecting Shyla, but awarded mother sole legal and physical
custody of Shyla, limited father’s visits to monitored visits, and
issued a one-year order protecting mother.
In November and December 2015, mother filed petitions
alleging that father was again sexually molesting Shyla and
asking to restrict his visitation rights as a result. Although the
family court in November 2015 denied the first petition outright
on the ground that the allegations of sexual abuse had been
previously rejected and were being recycled, the court by
December 2015 opted again to hedge its bets by ordering father’s
visits to be monitored by a professional monitor “as a precaution.”
III. Supervision by the Juvenile Dependency Court
In 2015, the juvenile court exerted dependency jurisdiction
over Shyla after finding that mother and father had “engaged in
a custody dispute regarding the child in which the mother made
numerous allegations of sexual abuse of the child by father,”
which prompted multiple interviews and examinations of Shyla,
causing Shyla to “exhibit[] severe emotional issues including
anxiety [and] vomiting” that “endanger[ed]” her physical and
emotional health. The juvenile court terminated its jurisdiction
in August 2018 with a so-called “exit order” granting mother and
father joint legal and physical custody with equal parenting time.
The product of a stipulation, the exit order was very detailed: It
set forth how Shyla was to be exchanged each Friday, how both

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parents were required to permit Shyla to compete in gymnastics,
how the parties would need each other’s consent to deviate from
the exit order’s terms, and how that consent was not to be
“unreasonably with[held].”
IV. November 2020 Order Awarding Father Sole
Physical and Legal Custody of Shyla
A. Mother again accuses father of abuse, and
obtains ex parte orders keeping Shyla away from him over
the Christmas 2019 holiday
Two weeks after father filed a petition seeking to have
mother stop picking up Shyla from school and gymnastics
practice in violation of the exit order’s terms, and just days before
father was to have Shyla visit over the Christmas 2019 holiday,
mother sought an emergency protective order and a no-notice
temporary restraining order (TRO) that kept Shyla in her
custody over the holidays on the ground that father was
subjecting Shyla to physical abuse.
In January and February 2020, the court convened a four-
day evidentiary hearing on mother’s requests to convert the TRO
into a permanent restraining order and to grant her full custody.
The parties called six witnesses, including both parents and
Shyla. Shyla’s testimony at the hearing painted a sharp contrast
between mother and father. Mother, Shyla said, was simply
“awesome.” Father, however, was “aggressive” and downright
cruel: He would “randomly jump” on her; would “slap,” “punch”
and “choke[]” her; would “stick [stuff] up [her] nose . . . or in [her]
ear” like rolled up post-it notes; would “poke [her] eye[s]”; would
fill her shoes with “ants” and “eggs”; and would send her “to
school with shoes that were three sizes too small” so the pain
would be a constant reminder that he was in charge. However,

4
there was no contemporaneous corroboration of any of this abuse
and no contemporaneous reports of this abuse; instead, there
were photos and videos of Shyla and father smiling together,
although Shyla explained that she was smiling and laughing only
because father pinched and threatened her with bodily harm if
she did not play along. Mother claimed to have videos and photos
documenting Shyla’s injuries and “anxiety attacks,” but said she
no longer had them because the social workers she interacted
with during the dependency case had told her not to keep such
documentation and because her phone with all those videos and
photos had been stolen under “questionable” circumstances.
Mother said she filed a petition to stop father’s alleged abuse of
Shyla only after the police officer who helped mother get an
emergency protective order told mother to do so, as she feared
father would “twist[]” mother’s act of filing a petition—which she
viewed as yet another example of her “being a loving and
thoughtful mother”—against her.
Father testified, explaining how Shyla seemed to have a
Jekyll/Hyde toggle: When Shyla was with father and out of
mother’s sight, they had a strong and loving relationship; but
once Shyla was in mother’s presence, Shyla would accuse father
of mistreatment and treat him with disdain, in what father
surmised was an attempt to remain in mother’s good graces.
On February 3, 2020, the family court denied mother’s
requests for a permanent restraining order and for full custody,
and dissolved the previously issued TRO. The court found Shyla
and mother were not credible witnesses. In rejecting their
testimony, the court “found it impossible to reconcile Shyla’s
uncorroborated account of her father as malevolent and
controlling with the other evidence” before the court, such as

5
video footage and witness testimony showing that father and
Shyla had a sweet dynamic, that Shyla was never fearful around
father, and that Shyla had no injuries. The court also noted its
observation of mother’s “pattern” of not taking personal
responsibility for what amounted to a false filing and, instead, of
“going out of the way to promote the idea that she was simply
following the commands of law enforcement” in filing for a
restraining order. The court also noted how the TRO application
appeared to be in retaliation for father’s earlier filed petition, and
how it was “strategically timed” to “disrupt [father’s] plans with
[Shyla] for the upcoming Christmas holiday.”
The family court awarded father $8,539 in attorney fees for
prevailing in the restraining order proceeding.1
B. Family court issues interim custody order
On the same day it denied mother’s requests for a
restraining order and full custody, the family court also ordered
that Shyla be placed in father’s sole physical custody “in light of
the duration” of time that the TRO was in effect and kept Shyla
away from father, until father’s pending petition was resolved
which was set for three weeks later, on February 25, 2020.
C. Father’s request to modify the custody
arrangement in the exit order
Although father’s initial petition (which triggered mother’s
initiation of restraining order proceedings) sought only to
“restrain[]” mother from “picking up [Shyla] during father’s
custodial time” and to grant father “tie breaking authority” when
it came to decisions about Shyla, father in his opposition to

1 Mother filed a notice of appeal from this attorney fees
award, but raises no challenge to it in her briefing on appeal and,
therefore, has abandoned that appeal.

6
mother’s request for a restraining order effectively amended his
petition to seek sole legal and physical custody of Shyla.
The family court convened an evidentiary hearing on
father’s request over the course of 11 days spread out over five
months in 2020. Although mother at one point expressed an
intent to call 47 witnesses, mother eventually pared it down to
eight witnesses and a 28-page, 103-paragraph declaration of her
own. The court ultimately denied mother’s request to call Shyla
as a witness in these proceedings, finding that Shyla’s likely
testimony would be “cumulative of things that the court has
already heard” and that the “detriment” to Shyla for having to
testify again “could be very significant.”
As the evidentiary hearing progressed, the family court
rejected mother’s repeated requests (in April and June 2020) to
revert to a 50/50 custody arrangement or to award mother sole
custody of Shyla, ruling that mother’s further claims of abuse by
father were based on nothing more than “speculation, hyperbole
and mysteriously sourced evidence that the court did not find
credible or convincing.” For example, the photos of Shyla’s
fingers that mother submitted in support of the June 2020
request as proof that Shyla was self-mutilating while in father’s
care ended up being nothing more than Shyla’s fingers being
wrinkled from too much time spent in a swimming pool on a
playdate. In light of the danger that granting mother even
partial custody of Shyla would result in the manufacture of even
more false evidence of abuse, the court limited mother’s contact
with Shyla to monitored visits during the pendency of the
hearing.
The evidence adduced at the evidentiary hearing was
similar to the testimony adduced during the restraining order

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proceedings. Mother testified that father had been abusing Shyla
“for years,” but mother never reported any of that abuse to the
authorities and instead would wait to act until someone else—
whether social workers or police—told her to go to court to
protect Shyla. The evidence also indicated that Shyla would act
“extremely emotional” in condemning father and in pining for
more time with mother when mother was present, but was
affectionate and comfortable with father when mother was not
around. The evidence also documented several instances in
which mother failed to comply with the exit order’s 50/50
custodial arrangement, particularly when it came to ensuring
that Shyla attended gymnastics events—even when Shyla was ill
or injured.
In November 2020, the family court issued a 37-page
written order granting father sole legal and physical custody of
Shyla, with mother limited to three hours of visitation per month
to take place at conjoint therapy with Shyla (the custody order).
The court made two central findings. First, the court found that
there had been “a material change in circumstances” since the
exit order. Specifically, the court noted that the “underlying
premise” of the exit order was both parents’ “willingness and
ability . . . to co-parent,” and that this circumstance had changed
because “mother appears to have abandoned any pretense of
being willing and able to co-parent with father” and is instead
“intent to thwart father’s exercise of his custody rights and his
relationship with” Shyla. Second, the court found that granting
father sole custody was in Shyla’s “best interest” because “mother
shows no signs of relenting in her efforts to increase her control
over [Shyla] and disrupt her relationship with father” and that
“limiting and regulating [Shyla’s] contact with mother appears to

8
be the only hope for [Shyla] to know some peace and to escape the
role she has fallen into of saying the things she thinks will please
her mother, whether true or not.” Regular visitation, whether
unsupervised or supervised, the court found, was “insufficiently
protective of [Shyla]” because, during monitored visits over the
summer of 2020, Shyla “fell immediately back into old patterns of
flattering mother and denigrating father, precipitating more law
enforcement and [social agency] investigations.”
The family court cited three categories of evidence in
support of its finding that mother was now intent upon
disrupting Shyla’s relationship with father rather than
coparenting with father.
First, mother was herself making “false statements” and
otherwise serving as a “reliable source of misinformation during”
the post-exit order court proceedings; the court then catalogued
several of mother’s lies.
Second, mother was manipulating Shyla into “believ[ing]
that she would be better off without father in her life,” which is
why Shyla was “depict[ing mother] as perfect” and lavishing
“effusive praise” and “fervent flattery” on mother, while vilifying
father as “almost cartoonishly malevolent.” Shyla’s “perception of
her father,” the court noted, “was being shaped by someone far
more sophisticated than [Shyla].”
Third, mother was using “deception and manipulation” to
try to make it look like she was not the one trying to disrupt
Shyla’s relationship with father. Mother was “hiding behind
[Shyla] and others, surreptitiously pulling the strings to stir up
investigations that put father on the defensive and disrupt
[Shyla’s] relationship with him unless ‘concerns’ about [her]
safety can be dispelled.” The court then catalogued five of the

9
“tactics” it had observed mother using to conceal her central role
in originating the false claims of abuse by father and to deflect
the liability for doing so elsewhere: (1) mother would attempt to
corroborate her own testimony by reporting what other people
had said about the abuse Shyla was allegedly suffering, but those
people—when called as witnesses—would not actually
corroborate mother, (2) mother would characterize herself and
Shyla “as victims of ‘the system,’” as a means of “elicit[ing]
sympathy or guilt” and to “circumvent questions . . . about
[mother’s] own veracity and motives,” (3) mother would try to
“turn the tables” by accusing anyone of misconduct if they
“question[ed] the propriety of [mother’s] conduct,” including
accusing father and the county’s social services agency, (4)
mother would “accus[e] father of her own [mis]deeds,” such as
when she accused father of trying to drive a wedge between her
and Shyla, of being “crafty,” and of “cherry pick[ing]” parts of the
record in this case, and (5) mother would “sow[] enough doubt
and confusion that [a] court [hearing mother’s allegations] will
give up on trying to discern the truth and instead just hedge
against the potential risk to [Shyla].”
V. Sanctions Order
In December 2020, the family court awarded father $34,414
in sanctions against mother under two different statutes (the
sanctions order).2 Specifically, the court awarded (1) $21,375 in
sanctions under Family Code section 271,3 after finding that

2 This amount is a small fraction of the $375,000 father
sought.

3 All further statutory references are to the Family Code
unless otherwise indicated.

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mother’s conduct in filing protracted court proceedings—while
denying any responsibility for doing so—frustrates the policy of
the law to reduce the cost of litigation, and (2) $13,039 in
sanctions under section 3027.1 for “knowingly [making] false
allegations of abuse in connection with” the restraining order
proceedings and June 2020 request for sole custody.
VI. Move-away Order
In May 2021, father filed a request with the family court to
allow him to move with Shyla from California to Virginia because
father’s employer transferred him to a new position in Virginia.
In response, mother (1) opposed the request on its merits, and
also sought a new split custody arrangement, (2) requested
appointment of counsel for Shyla or a custody evaluator, and (3)
demanded an evidentiary hearing with at least nine witnesses.
In support of her opposition, mother submitted a declaration (1)
attesting to how during their conjoint therapy sessions, Shyla
“cried hysterically,” “hyperventilat[ed],” and “plead[ed]” to
remain in California and to return to mother’s full-time custody;
(2) indicating her belief that father and Shyla share a home in
Virginia with a convicted murderer recently released from prison;
and (3) attesting that the geographically nearest school in
Virginia was poor quality. Mother also submitted the
declarations of several other individuals espousing their belief
that mother is a “wonderful” and “good” “mother,” that the social
services agency was fabricating evidence against mother, that
father was a bad influence on Shyla and that Shyla does not
enjoy living with father, and that Shyla’s friendship with her
friends in California would suffer.
The family court convened a hearing on father’s motion in
July 2021. At the outset of the hearing, the court observed that

11
mother’s proffered declarations appeared to be seeking to
relitigate the custody order, that many of mother’s proffered
declarants had been witnesses in the 11-day hearing, and that
appointing a custody evaluator would “basically insert a third
party into the parent-child relationship.” In the court’s view, the
chief issue was whether moving Shyla to Virginia would cause
her “detriment.” After mother’s counsel conceded that mother
was the “primary witness” on that issue, the court allowed
mother to testify. Mother largely repeated what was in her
declaration.
The family court subsequently issued a written order (the
move-away order) granting father’s request for permission to
relocate Shyla, and denied mother’s request for a further
evidentiary hearing or for the appointment of minor’s counsel or
a custody evaluator. Specifically, the court noted that the
“question . . . actually before the court” was “whether relocation
will detrimentally affect [Shyla], her rights or her well-being”;
that mother’s testimony and the other declarations “amount[ed],
at best, to a[n insufficient] showing of ‘detriment in the abstract’”
and thus did not constitute a “prima facie showing of detriment”
sufficient to trigger mother’s right to a more fulsome evidentiary
hearing; and that, “in light of [its ruling],” appointing counsel for
Shyla was not in her best interest and appointing a custody
evaluator would not be helpful to the court.
VIII. Appeals
Mother filed timely notices of appeal from the family court’s
custody, sanctions, and move-away orders.4 This court
consolidated the appeals.

4 Mother also filed a notice of appeal from the family court’s
February 3, 2020 order denying her requests for a restraining

12
 DISCUSSION
In this consolidated appeal, mother argues that the family
court erred (1) in granting father full legal and physical custody
of Shyla, while limiting mother to visits during conjoint
counseling; (2) in imposing sanctions against her, and (3) in
granting father permission to move with Shyla to Virginia.
I. Custody Order
Because the August 2018 exit order constituted a custody
order, the family court could modify that order only if it found
that (1) “there has been a significant change of circumstances
since the juvenile court issued the [exit] order,” and (2)
“modification of the order is in the best interests of the child.”
(Welf. & Inst. Code, § 302, subd. (d); Heidi S. v. David H. (2016) 1
Cal.App.5th 1150, 1164 [so noting]; see also In re Marriage of
Brown & Yana (2006) 37 Cal.4th 947, 956 (Brown) [noting same
standard applies whenever there is a prior custody order];
Burchard v. Garay (1986) 42 Cal.3d 531, 535 [noting this rule is
‘“based on principles of res judicata”’].) We review a trial court’s
order modifying custody for an abuse of discretion (Montenegro v.
Diaz (2001) 26 Cal.4th 249, 255; In re Marriage of C.T. & R.B.

order and sole custody, but she has abandoned any challenge to
that order on appeal. Her abandonment of this issue would seem
to encompass her passing complaint that the family court
violated section 3042, subdivision (f)(1), by requiring Shyla to
testify during the restraining order hearings in open court
(rather than in chambers) without first making an express
finding that doing so was in her best interest. Even if we ignore
that mother was the one who called Shyla without requesting an
in-chambers investigation, mother does not explain how she was
prejudiced by any such “error” when mother does not attack the
correctness of the resulting order.

13
(2019) 33 Cal.App.5th 87, 96-97 (C.T.)), and review any
subsidiary factual findings for substantial evidence and any
subsidiary legal questions de novo (Shoen v. Zacarias (2019) 33
Cal.App.5th 1112, 1118-1119). In light of the public policy
favoring “continuity and stability in custody arrangements” (In re
Marriage of LaMusga (2004) 32 Cal.4th 1072, 1093 (LaMusga)),
“appellate courts are less reluctant to find an abuse of discretion
when custody is changed than when custody is originally
awarded.” (C.T., at p. 97.)
Although mother brands the custody order
“unconscionable” and “shocking to the sense of justice,” those
hyperbolic labels do not assist us in examining the two clusters of
arguments mother actually makes—namely, that (1) the custody
order is invalid on its merits, and (2) she was denied due
process.5

5 For the first time in her reply brief and again at oral
argument, mother argues that the family court should never have
held an evidentiary hearing in the first place because father
never made a threshold prima facie showing of changed
circumstances. Aside from being waived because it was not
raised in mother’s opening brief (e.g., Old East Davis
Neighborhood Assn. v. City of Davis (2021) 73 Cal.App.5th 895,
915), this argument also lacks merit because the restraining
order proceedings that immediately preceded the evidentiary
hearing on father’s motion put before the court more than
sufficient evidence of mother’s attempts to sabotage father’s
custodial rights in a manner inconsistent with the 2018 exit
order. The court was not required to make an express factual
finding in this regard. (E.g., In re Marriage of Pasco (2019) 42
Cal.App.5th 585, 591-592 [upholding implied finding of prima
facie case of changed circumstances based on evidence presented
to the court in a related proceeding].)

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 A. Validity of custody order on its merits
Mother argues that the custody order is invalid on its
merits because (1) the family court never made an express
finding of a change in circumstances, (2) even if the court made
such a finding, it is unsupported by substantial evidence and
incorrect as a matter of law, and (3) substantial evidence does not
support the family court’s finding that awarding father sole
custody of Shyla is in her best interests. Because the first
argument ignores the family court’s explicit finding of “a material
change in circumstances” since the exit order, we turn to mother’s
remaining arguments.
1. Validity of finding of changed circumstances
Substantial evidence supports the family court’s finding
that there has been a change in circumstances since the exit
order issued in August 2018. The court delineated what the
change in circumstances was—namely, that mother had gone
from expressing a “willingness and ability . . . to co-parent” to
effecting her “intent to thwart” father’s “custodial rights.” The
court then explained how the evidence supported its finding of
mother’s changed intent—namely, that mother was making false
statements and planting misinformation, that she was
manipulating Shyla into making a never-ending stream of false
complaints about father’s treatment of her, and that mother used
deception and manipulation to try to make it appear that the
source of the complaints against father was anyone but herself.
Although mother asserts that the court’s recitation was based on
nothing more than “beliefs and assumptions” without any
evidence, the court’s written order details which false statements
mother has perpetuated, cites Shyla’s testimony and
contradictory evidence to explain how Shyla’s attitude toward

15
father changes the instant mother is within earshot, and gives
example after example from the court record of how mother has
tried to orchestrate her campaign against father from behind the
scenes.
Mother does not attack this evidence head on, as doing so
would be incredibly difficult given that we are obligated to view
the record in the light most favorable to the family court’s
findings when assessing those findings for substantial evidence.
(In re Marriage of Rossi (2001) 90 Cal.App.4th 34, 40.) Instead,
mother offers four reasons why, in her view, the evidence the
family court relied upon is insufficient as a matter of law.
First, mother argues that the family court’s finding of
changed circumstances is invalid as a matter of law because it
rests on mother’s interference with father’s custodial rights, and
such interference can never constitute a changed circumstance
warranting a change in custody. For support, she cites Jane J. v.
Superior Court (2015) 237 Cal.App.4th 894 (Jane J.) and C.T.,
supra, 33 Cal.App.5th 87. Mother is wrong. Several cases have
confirmed that a court has the “power to transfer custody or
otherwise modify [a] custody” order if one party “attempt[s] to
frustrate” the other’s “visitation rights.” (In re Marriage of
Ciganovich (1976) 61 Cal.App.3d 289, 293-294, superseded by
statute on another ground as stated in In re Marriage of Carlson
(1991) 229 Cal.App.3d 1330, 1335; Fay v. Fay (1938) 12 Cal.2d
279, 282 [same].) Neither Jane J. nor C.T. support mother’s
proposition that one parent’s interference with the other’s rights
can never constitute changed circumstances. Both of those cases
involved a parent who was attempting both to obtain full custody
of the child and to move away at the same time; this “double-
barreled change” sets an ‘“admittedly very high”’ “standard of

16
proof.” (Jane J., at p. 905; C.T., at pp. 103, 105.) All that Jane J.
and C.T. noted was that a showing of one parent’s attempts to
frustrate the other’s custodial rights and to interfere with their
relationship was not enough, by itself, to satisfy this “double
whammy” standard. (Jane J., at pp. 903-904; C.T., at p. 103.) At
the time of the custody order in this case, father was only seeking
to change custody; he was not simultaneously seeking to move
away with Shyla.6 As a result, the elevated standard in Jane J.
and C.T. does not apply.
Second, mother argues that even if one parent’s
interference with the other's custodial rights can constitute a
change in circumstances sufficient to justify modifying a custody
order, there was no change here because mother has been
engaged in a campaign to interfere with and obstruct father’s
rights since 2012. While admittedly clever, we reject this
argument because mother nevertheless stipulated to the exit
order, the terms of which were very much premised on mother’s
willingness to reform herself and to cooperate with father in
coparenting Shyla. The fact that mother may have been secretly
harboring an intent to violate that exit order at the moment she
signed it does not somehow immunize her from the consequences
of her continued efforts to violate that order.
Third, mother argues that father’s three main showings of
interference—namely, (1) mother’s conduct in picking up Shyla
from school four or five times, (2) mother’s conduct in filing

6 The fact that father sought to move away the next year at
the behest of his work does not alter our analysis because we
evaluate the propriety of an order at the time it is issued, not
based on events that occur afterwards. (Haworth v. Superior
Court (2010) 50 Cal.4th 372, 379, fn. 2.)

17
frivolous motions for changes in custody, and (3) mother’s conduct
in making and/or orchestrating false allegations of abuse—do not
constitute substantial evidence justifying a change in custody
over Shyla.
Mother urges that father’s initial request in December 2019
addressed only mother’s conduct in picking up Shyla from school
and gymnastics a few times when it was not her turn, which is
insufficient to justify giving father sole custody of Shyla. This
argument ignores that no matter how narrow father’s initial
request might have been, that request—by virtue of father’s
amendment to seek sole custody as well as mother’s request to
call 47 witnesses—ballooned into a massive 11-day evidentiary
hearing regarding the full range of conduct between the parents.
We reject the notion that we must conclude substantial evidence
does not support the family court’s order once we ignore all of the
evidence presented in this case.
Mother urges that the repetitive and meritless motions she
filed cannot be used against her in assessing whether she was
trying to interfere with father’s custodial rights because (1) she
had a right to file those motions, and (2) she lost all of them
anyway. As the very existence of the vexatious litigant statutes
indicate (Code Civ. Proc., § 391 et seq.), a party’s litigation tactics
may be used against them, even if (and, indeed, especially if) they
lose every time.
Mother urges that her conduct in seeding misinformation
and manipulating Shyla into making false reports of abuse by
father cannot support the family court’s finding of a change in
circumstances. To begin, mother urges that the Family Code has
three specific provisions that address what happens when a
parent makes a false allegation—namely, (1) section 3022.5,

18
which obligates a family court to modify a custody order when one
parent is “convicted” of “falsely accusing” the other parent of
“child abuse” (§ 3022.5), (2) section 3027.5, which empowers a
family court to restrict a parent’s custody or visitation “if the
court finds substantial evidence that the parent” knowingly made
a false “report of child sexual abuse” “with the intent to interfere
with the other parent’s lawful contact with the child” (§ 3027.5,
subd. (b)), and (3) section 3027.1, which empowers a family court
to grant “reasonable money sanctions” if a parent knowingly
makes a “false” “accusation of child abuse or neglect” (§ 3027.1)—
which, by negative implication, preclude the court from
considering a parent’s false allegation in any situation not
addressed in those three statutes. Although we recognize that
the maxim “[e]xpressio unius est exclusio alterius means that ‘the
expression of certain things in a statute necessarily involves
exclusion of other things not expressed’” (Dyna-Med, Inc. v. Fair
Employment & Housing Com. (1987) 43 Cal.3d 1379, 1391, fn.
13), that maxim is merely a guide and, more to the point, does
not generally apply “to an entire code” (such as the Family Code)
(In re Sabrina H. (2007) 149 Cal.App.4th 1403, 1411). We decline
to interpret our Legislature’s specification of three special
consequences applicable when a parent makes false allegations of
abuse as an implicit mandate that such allegations are utterly
irrelevant in every other situation. (Cf. Evid. Code, § 351
[“Except as otherwise provided by statute, all relevant evidence is
admissible.”].) Mother next asserts that there is insufficient
evidence that she orchestrated Shyla to make false accusations of
abuse because the police officer from whom mother sought an
emergency protective order in December 2019 believed Shyla’s
report of abuse, and courts should be reluctant to discourage

19
parties from reporting abuse. This assertion just means that
mother trained Shyla to lie convincingly, not that the lies were
true. And there is no policy favoring the making of false police
reports; in fact, to do so is a crime (Pen. Code, § 148.5, subd. (a)).
Mother then asserts that the family court never expressly found
that the allegations of abuse were false. This assertion ignores
the entire tenor of the court’s order and its express finding that
mother was a “source of misinformation,” that Shyla was making
false reports of abuse, and that mother was using a variety of
tactics to conceal that she was the source of those reports
constitute an implied finding that mother was making false
allegations of abuse through Shyla. (E.g., Orange County Water
Dist. v. Alcoa Global Fasteners, Inc. (2017) 12 Cal.App.5th 252,
313 [substantial evidence review obligates appellate courts to
imply findings].)
2. Validity of finding that transfer to father’s sole
custody is in Shyla’s best interest
Substantial evidence also supports the family court’s
finding that placing Shyla in father’s sole legal and physical
custody (and with only therapeutically supervised visits for
mother) is in Shyla’s best interest. The court laid out the long
history of mother’s relentless attempts to “increase her control
over [Shyla] and disrupt her relationship with father,” explained
how mother’s interactions with Shyla (even if monitored) prompts
Shyla to revert to the default mantra of “mom is angelic, dad is
demonic” that is a product of Shyla’s supervision by mother, and
how “the only hope” to “escape [this] role” and to end the
seemingly endless cycle of false reports of
abuse/investigation/litigation—and to give Shyla “peace”—was to
place Shyla with father and to deny mother the opportunity to

20
stir up more mischief. (See LaMusga, supra, 32 Cal.4th at p.
1085 [family court may consider one parent’s actions to alienate
child from other parent in determining custody].)
Mother attacks the family court’s reasoning with what boil
down to three categories of arguments.7
First, mother argues that the family court effectively
terminated her parental rights without giving sufficient weight to
the “paramount” public policy interests of “ensur[ing] that
children have frequent and continuing contact with both parents”
(§ 3020, subd. (b), italics added) and of “continuity and stability
in custody arrangements” (Brown, supra, 37 Cal.4th at p. 956).
While a family court is certainly to give weight to these public
policy interests, those interests are not invariably controlling;
instead, they may be overcome by evidence that allowing
continuity of the existing custody arrangement and that ensuring
both parents have frequent contact would not be in the child’s
best interest. (§ 3020, subd. (b) [frequent contact not required
“when the contact would not be in the best interests of the child”];
LaMusga, supra, 32 Cal.4th at p. 1088 [policy interests do “not
limit” family court’s discretion to determine what custodial
arrangement is in child’s best interests]; In re Marriage of
Burgess (1996) 13 Cal.4th 25, 34 [same].) To the extent mother
argues that a family court may never—as a matter of law—issue
an order limiting a parent to seeing her child only during conjoint
therapy, we disagree. Although the family court’s custody order

7 For the first time in her reply brief, mother argued that the
family court lacked the authority to impose conjoint therapy
“indefinitely.” Because mother waited until her reply brief to
raise this issue and has not provided good cause for this delay,
she has waived it. (Aerotek, Inc v. Johnson Group Staffing Co.,
Inc. (2020) 54 Cal.App.5th 670, 685 (Aerotek).)

21
in this case drastically limited mother’s right of access to Shlya,
the court was presented with a drastic situation where mother’s
longstanding psychological manipulation of Shyla had caused
Shyla to have a Jekyll/Hyde response to father and where the
court’s prior efforts to impose the less drastic remedy of
monitored visits had proven ineffective because they did not stop
mother’s persistent conduct; we decline to hold that a family
court is powerless to issue a custody order in such an extreme
case where it is most needed. To the extent mother argues that
the family court should have struck a different balance between
these public policies and Shyla’s best interests, she is asking us
to exercise our discretion differently than the family court, which
is an exercise beyond our power under an abuse of discretion
standard of review. (E.g., People v. McGlothin (1998) 67
Cal.App.4th 468, 477.)
Second, mother argues that the family court ignored all of
the witnesses who offered their opinions that Shyla would be
worse off in father’s custody. The family court did not ignore
them; it simply rejected their opinions, which is within its right
to do when sitting as a finder of fact. We may not reevaluate the
trial court’s assessment of those witnesses’ credibility or
otherwise reweigh the evidence. (People v. Brown (2014) 59
Cal.4th 86, 106 [“‘We do not reweigh evidence or reevaluate a
witness’s credibility.’”]; In re Marriage of Battenburg (1994) 28
Cal.App.4th 1338, 1343 [same].)
Third, mother argues that the family court omitted the
following issues from its order—namely, (1) the court did not
making a finding that father would be more likely to allow
mother to have contact with Shyla, (2) the court did not explain
why it was necessary to limit mother’s contact with Shyla, and (3)

22
the court did not explain why it was necessary to limit that
contact to merely three to six hours per month. Regarding the
first issue, whether father is more likely to interfere with
mother’s contact with Shyla is of limited importance given the
court’s order that mother’s contact is to be limited to three hours
of conjoint therapy a month; further, the court found that Shyla
had a good relationship with father (outside of mother’s presence)
and that father’s litigation history revealed no pattern by father
of doing anything more than trying to protect his own parental
rights under the exit order (rather than trying to interfere with
mother’s rights). Regarding the second issue, mother overlooks
the family court’s explanation—recited above—as to why more
visitation with mother and visitation in anything less than
therapeutic setting would be detrimental to Shyla. And mother
objects to the length of the conjoint therapy each month for the
first time in her reply brief; by waiting to do so, she has waived
this argument. (Aerotek, supra, 54 Cal.App.5th at p. 685.)
B. Violation of due process
The constitutional guarantee of due process applies in
family court proceedings, including child custody proceedings.
(Elkins v. Superior Court (2007) 41 Cal.4th 1337, 1368; Fewel v.
Fewel (1943) 23 Cal.2d 431, 433-434.) Among other things, a
party’s right to due process includes the corollaries that the
family court cannot be affected by actual bias against a parent or
a “probability of bias . . . so great as to become ‘constitutionally
intolerable’” (People v. Freeman (2010) 47 Cal.4th 993, 1001),
cannot prejudge a case and must keep an “open mind” until all
the evidence is presented (In re Marriage of Carlsson (2008) 163
Cal.App.4th 281, 290-291; Rosenfeld v. Vosper (1941) 45
Cal.App.2d 365, 371), and cannot act as an advocate for either

23
party (and should instead be neutral) (Lois R. v. Superior Court
(1971) 19 Cal.App.3d 895, 897-898, 903).
Mother asserts that the proceedings resulting in the
custody order violated due process for what can be grouped into
three reasons.
First, mother argues that the family court was biased
against her because it devoted 16 of the 21 pages of facts in its
37-page order to facts that, in mother’s view, disparaged her.
This is not bias for the simple reason that the court’s findings
were based on the evidence before it. A judicial “opinion . . .
formed” as “the result of a judicial hearing” “does not amount to
[improper] bias and prejudice.” (Kreling v. Superior Court (1944)
25 Cal.2d 305, 312; Guardianship of L.V. (2006) 136 Cal.App.4th
481, 500.)
Second, mother argues that the family court prejudged the
dispute against her (1) because, at the time it denied mother’s
request for a permanent restraining order in early February
2020, the court issued an interim order placing Shyla with father
as a means of effectively recompensing father “in light of the
duration” that mother had obtained sole custody of Shyla before
the TRO was dissolved; and (2) because the family court’s
findings in its order denying her request for a restraining order
closely track its findings in the custody order. We are not
persuaded. The court’s February 2020 interim order was issued
for reasons other than that the court thought father was going to
prevail on his still-to-be-adjudicated request for sole custody.
And even if it had been issued for that reason, trial courts grant
provisional relief based on the likelihood of success all the time
(White v. Davis (2003) 30 Cal.4th 528, 561); if this were enough to

24
constitute unconstitutional bias, such relief would be verboten.8
Moreover, the fact that the family court’s findings in denying
mother’s request a restraining order are similar to its findings in
the custody order is not evidence of prejudgment; instead, it
reflects that the evidence presented during both proceedings was
similar. That the outcomes of both proceedings are consistent
confirms nothing more than the rationality of the family court’s
evaluation of the evidence in father’s favor.
Third, mother asserts that the family court’s custody order
granting father sole custody was some sort of retributive
“punishment” for making her earlier request for a restraining
order that the court found to be without merit. To be sure, a
family court cannot use a custody order to “punish” a party.
(LaMusga, supra, 32 Cal.4th at p. 1094.) But there is nothing to
suggest—beyond sheer speculation—that the family court was so
motivated here. The court’s order entails nothing beyond a
thorough examination of the evidence, including the parties’ past
conduct, which is a legitimate consideration. (Ibid. [family court
“may . . . consider the past conduct of the parents”].) If, as
mother seems to suggest, a trial court is deemed to be punishing
a litigant any time the court has made an interim ruling against
the litigant in the past, then given the number of interim rulings
courts make, nearly every judge would be in the business of

8 Although mother repeatedly complains that the February
2020 interim order placing Shyla with father was also issued in
violation of due process, mother simultaneously acknowledges
that she never sought appellate review of that order and that any
such violations are moot given that the family court has
supplanted the interim order with the substantively similar
custody order. Thus, we will not address mother’s complaints
about the procedural propriety or the merits of the interim order.

25
dispensing punishment and would on that basis be disqualified
due to bias.9 That is simply not the law.
II. Sanctions Order
Mother argues that the family court’s sanctions order is
defective for two reasons. First, mother argues that the court
lacked the statutory authority to impose $8,539 of the $13,059
monetary award under section 3027.1 because father had already
been awarded that amount as prevailing party attorney fees for
successfully defending against her meritless request for a
restraining order. Second, mother argues that the court’s full
sanctions order of $34,414 was unsupported by the record.
Because the first challenge involves a question of statutory
construction, our review is de novo. (Robert J. v. Catherine D.
(2009) 171 Cal.App.4th 1500, 1514 (Robert J.).) As noted above,
our review of the second challenge is for substantial evidence.
A. Sanctions under section 3027.1
Section 3027.1 provides that a family court may require a
party who makes “an accusation of child abuse or neglect during
a child custody proceeding” while knowing “it to be false at the
time the accusation was made” to pay “reasonable money
sanctions” as well as “reasonable attorney’s fees incurred in
recovering the sanctions.” (§ 3027.1, subd. (a).) The “reasonable
money sanctions” must not “exceed all costs incurred by the party
accused as a direct result of defending the accusation,” and are

9 Mother’s briefing on appeal is not the first time she has
hurled accusations of bias against the family court judge
presiding over this dispute merely because the judge ruled in
father’s favor. Indeed, mother filed three separate motions to
disqualify the family court judge when mother realized the judge
was well-versed in the case and attuned to mother’s “troubling”
conduct.

26
“in addition to any other remedy provided by law.” (Id., subds.
(a) & (c).)
The family court here ordered mother to pay a “reasonable
money sanction” of (1) $8,539 for making false allegations of
abuse in the restraining order proceedings and (2) $1,800 for
making false allegations of abuse in mother’s June 2020 request
for Shyla to be returned to her custody; the court also ordered
mother to pay father $2,700 in “reasonable attorney’s fees” he
incurred in bringing the sanctions motion. The $8,539 amount
corresponds with the amount of attorney fees the family court
previously awarded father as the prevailing party in the
restraining order proceedings. Mother argues that awarding
father $8,539 in “reasonable money sanctions” under section
3027.1 after already awarding father the same amount as a
prevailing party constitutes an impermissible double award of
attorney fees. We disagree, chiefly because the court’s award of
“reasonable money sanctions” under section 3027.1 is not an
award of attorney fees. Instead, it is a separate and
nonduplicative award of monetary sanctions for making false
accusations of abuse. (See Robert J., supra, 171 Cal.App.4th at p.
1519 [“public policy underlying” the statute is to “discourag[e]”
deliberately false accusations of child abuse “in order to gain
custody of a minor child” and to “compensat[e]” a parent “wrongly
accused of abuse”].) The fact that section 3027.1 caps the total
amount of “reasonable money sanctions” at “the costs incurred by
the party accused as a direct result of defending the accusation,”
and that the family court here looked to one component of those
costs (namely, the attorney fees father incurred for his defense in
the restraining order proceedings) does not somehow convert
those sanctions into a duplicative attorney fees award. If there

27
were any doubt, section 3027.1’s express proviso makes it clear
that “reasonable monetary sanctions” a family court awards may
be “in addition to any other remedy provided by law,” which by
its plain text would encompass the remedy of awarding a
prevailing party its attorney fees. The text of the statute
controls. (Poole v. Orange County Fire Authority (2015) 61
Cal.4th 1378, 1384-1385.)
B. Sufficiency of evidence supporting all sanctions
As noted above, a court may award sanctions (and attorney
fees incurred to obtain those sanctions) under section 3027.1
upon a finding that a person has made a “false” “accusation of
child abuse or neglect” while knowing the accusation to be false.
(§ 3027.1, subd. (a).) A court may also award a “sanction” of
“attorney’s fees and costs” on any party in a Family Code
proceeding if the party or its attorney engages in “conduct . . .
[that] . . . frustrates the policy of the law to promote settlement of
litigation and, where possible, to reduce the cost of litigation by
encouraging cooperation between the parties and attorneys.” (§
271, subd. (a).)
The family court here ordered $13,059 in sanctions under
section 3027.1 (for the reasons noted above) and $21,375 in
sanctions under section 271 (for mother’s “protracted court
proceedings” aimed at “disrupt[ing] father’s relationship” with
Shyla). Contrary to mother’s arguments, and as detailed above,
substantial evidence supports the family court’s findings that
mother made false accusations of abuse and otherwise engaged
father in “protracted court proceedings.” Mother responds with
two arguments. She asserts that the family court never made a
finding that she knew Shyla’s allegations were false. This is
incorrect, as the court found that “mother’s finger-pointing and

28
evasiveness reveal her consciousness that, if her role in the
origination of these abuse investigations was known to the court,
it would cast grave doubt on her willingness and ability to
prioritize [Shyla’s] best interests and [to] support [Shyla’s]
relationship with her father. Put another way, the court
conclude[d] that mother knows that what she has been doing is
wrong, or at least that the court would think it is.” Mother also
asserts that there was insufficient evidence that mother knew
Shyla’s allegations against father were false because some of the
persons Shyla reported to believed Shyla; however, the fact that
mother induced Shyla to lie convincingly does not mean that
mother was unaware of the falsity of Shyla’s reports of abuse.
Mother also asserts that the family court was wrong to look at
anything beyond the original nugget of father’s initial December
2019 petition involving mother’s violation of the exit order by
picking up Shyla from school and gymnastics when she was not
supposed to; for the reasons described above, the genie mother
and father unleashed in the custody proceedings growing out of
that petition cannot be stuffed back into that tiny lamp.
III. Move-away Order
At the time father sought the family court’s permission to
move with Shyla to Virginia, father had been Shyla’s sole legal
and physical custodian for six months. As the parent with such
sole custody, father is presumptively empowered to change
Shyla’s residence unless “the move would result in [a] detriment
to [her].” (Brown, supra, 37 Cal.4th at p. 957; § 7501, subd. (a)
[“A parent entitled to the custody of a child has a right to change
the residence of the child, subject to the power of the court to
restrain a removal that would prejudice the rights or welfare of
the child.”].) The parent opposing the move bears the “initial

29
burden” of showing detriment. (LaMusga, supra, 32 Cal.4th at p.
1078; Brown, at pp. 959-960.) For these purposes, a showing of
“detriment” requires proof of something more than “detriment in
the abstract” (that is, more than “generalities concerning the
standard of living and schooling” in the new locale). (Brown, at
pp. 963, 964.) If, and only if, the opposing parent shows that the
move would be detrimental is the family court then obligated to
“perform the delicate and difficult task” of determining whether
the move is in the “best interest[] of the child.” (LaMusga, at p.
1078.) If the family court opts to change the custodian of the
child so the child does not have to move, the court must consider
several factors in assessing whether that change of custody is in
the child’s best interest, including (1) “the child’s interest in
stability and continuity in the custodial arrangement,” (2) “the
distance of the move,” (3) “the child’s age,” (4) “the child’s
relationship with both parents,” (5) “the relationship between the
parents, including, but not limited, to, their ability to
communicate and cooperate effectively and their willingness to
put the child’s interests above their individual interests,” (6) “the
child’s wishes if the child is mature enough for such an inquiry to
be appropriate,” (7) “the reasons for the proposed move,” and (8)
“the extent to which the parents currently share custody.” (Id., at
p. 1101.) A family court has broad discretion in evaluating
whether a move will result in a detriment to the child, and what
is in the best interest of the child. (Brown, at p. 961.)
Here, the family court determined that mother had not
carried her burden of establishing that moving Shyla to Virginia
would be to Shyla’s “detriment.” Mother argues that this
determination was error because (1) it is unsupported by
substantial evidence, and (2) it is procedurally defective because

30
the court (a) did not conduct an evidentiary hearing, (b) did not
appoint Shyla separate counsel, and (c) did not appoint a custody
evaluator.
A. Substantial evidence challenge
Because mother bore the burden of establishing detriment,
she can prevail on appeal in her substantial evidence-based
challenge to the court’s ruling only if she establishes that the
evidence she presented compels a finding of detriment as a
matter of law. (Dreyer’s Grand Ice Cream, Inc. v County of Kern
(2013) 218 Cal.App.4th 828, 838.)
Mother’s showing of detriment does not compel a finding of
detriment as a matter of law. In both her declaration and her
testimony at the hearing, mother stated that Shyla was visibly
upset during the conjoint counseling sessions, wanted to return to
mother’s full custody, and wanted to remain in California; that
Shyla would be living in Virginia with one of father’s relatives,
who mother claimed was a person convicted of murder and
recently released from prison; that the schools near the Virginia
residence were not good schools; and that Shyla will no longer be
able to participate in gymnastics in California. The declarations
submitted by third parties on mother’s behalf shared opinions
that mother was the better parent and that father was a bad
influence. Taking these items in reverse, the third party
declarations have nothing to do with the detriment Shyla might
face from moving to Virginia; Shyla’s involvement in gymnastics
in California is not a “trump card” that outweighs every other
consideration, particularly where there is no evidence that Shyla
will be prevented from participating in gymnastics in Virginia;
mother’s concerns about the quality of schooling (and even the
quality of gymnastics programs) in Virginia constitutes

31
insufficient “detriment in the abstract”; mother’s beliefs about
who would be living with Shyla in Virginia, as well as their
criminal histories, are speculative and necessarily based on
inadmissible hearsay; and Shyla’s distress during the conjoint
therapy sessions establishes only that Shyla is continuing to act
distressed whenever she is in mother’s presence. Taken
individually or collectively, this evidence—even if the
inadmissibility issues are overlooked and mother’s statements
are accepted at face value—does not establish that moving Shyla
to Virginia would cause her detriment as a matter of law. (Cf. In
re T.S. (2020) 52 Cal.App.5th 503, 517-518 [allowing child to live
with a “convicted felon” who was “not allowed to be around
children” is evidence of detriment; it does not compel a finding of
detriment].) Mother seems to argue that the family court erred
in not evaluating the factors set forth in California Rules of
Court, rules 5.240 and 5.113, but those rules address the factors
relevant to the appointment of counsel for a child and to the need
for an evidentiary hearing, respectively; they do not address the
issue of detriment.
B. Procedural challenges
1. Evidentiary hearing
Section 217 erects a presumption in favor of holding an
evidentiary hearing in Family Code proceedings where “live,
competent testimony that is relevant and within the scope of the
hearing” can be introduced. (§ 217, subd. (a).) A family court
nevertheless may decline to hold an evidentiary hearing—or may
limit the scope of such a hearing—upon a “finding of good cause.”
(Id., subds. (a) & (b); In re Marriage of George & Deamon (2019)
35 Cal.App.5th 476, 482, fn. 7.) In assessing whether “good
cause” to deny or limit an evidentiary hearing exists, a court

32
“must consider” the following factors: (1) “[w]hether a substantive
matter is at issue—such as child custody . . .”; (2) “[w]hether
material facts are in controversy”; (3) “[w]hether live testimony is
necessary for the court to assess the credibility of the parties or
other witnesses”; (4) “[t]he right of the parties to question anyone
submitting reports or other information to the court”; (5)
“[w]hether a party offering testimony from a non-party” has
provided the opposing party with a “witness list with a brief
description of the anticipated testimony”; and (6) “[a]ny other
factor that is just and equitable.” (Cal. Rules of Court, rule
5.113(b); § 217, subd. (c).) With regard to the third factor, live
testimony is not necessary in proceedings regarding a possible
move-away order if the party requesting the evidentiary hearing
“is unable to make a prima facie showing of detriment in the first
instance”—that is, if the parent’s “allegation or showing of
detriment to the child [from the move] is insubstantial in light of
all of the circumstances presented in the case, or is otherwise
legally insufficient to warrant relief.” (Brown, supra, 37 Cal.4th
at p. 962.)
Because the family court in this case allowed mother to
testify, the court held an evidentiary hearing. As a result, the
only issue before us is whether the family court abused its
discretion in limiting the evidentiary hearing that was held by
not allowing mother to call other witnesses. (See People v.
Waidla (2000) 22 Cal.4th 690, 717 [decision to exclude evidence
reviewed for abuse of discretion]; cf. In re Romeo C. (1995) 33
Cal.App.4th 1838, 1843-1845 [mandate to consider all “‘relevant
and material evidence as may be offered’” is not literal or
absolute, but rather subject to court’s exercise of discretion and
Evidence Code section 352].) There was no abuse of discretion.

33
Although the substantive topic of Shyla’s custody was at issue
(the first factor) and mother provided in advance summaries of
her witnesses’ anticipated testimony (the fifth factor), there were
no facts in controversy as to detriment (because the court
accepted at face value mother’s representations that Shyla said
she wanted to live with mother in California, that the schools and
gymnastics programs in Virginia were worse) (the second factor),
and mother did not need a hearing to question the authors of any
reports (the fourth factor). Most importantly, the family court
did not abuse its discretion in concluding that further live
testimony was not needed (the third factor). Mother stated that
she was the “primary witness” as to detriment, and the family
court let her testify. The testimony of the remaining witnesses
was either derivative of what mother already testified to, or was
relevant to the propriety of the custody order rather than
whether the move would result in detriment to Shyla.
Mother marshals four further arguments in response.
First, she argues that Shyla should testify because mother does
not have unregulated access to Shyla under the custody order.
However, mother already testified to what Shyla said and felt;
having Shyla take the stand and repeat it adds nothing, as the
family court noted. (Evid. Code, § 352 [discretion to exclude
cumulative evidence].) Second, mother argues that there was
good reason to question and to disbelieve father’s representations
in his move-away petition. However, impeaching father does not
establish detriment to Shyla from the move. Third, mother
argues that she made her prima facie showing by merely alleging
that the move would cause a detriment. However, the phrase
“prima facie showing” is used in many contexts. Here, it requires
more than a blanket allegation; Brown establishes that it

34
requires a more specific explanation of why moving Shyla would
result in more than a detriment in the abstract, and mother
failed to make that showing. Fourth, mother argues that she
needed an evidentiary hearing to develop more evidence.
However, that is not the way it works. An evidentiary hearing is
not a tool for rooting around in the proverbial dark to locate
evidence; it is a means of resolving factual disputes that are
shown to exist and are shown to be material to the issue at hand.
The family court did not abuse its discretion in finding that there
were no such disputes that would be resolved by calling the
additional witnesses mother sought to call, particularly in light of
the absence of meaningful proffers as to what these witnesses
would add to the body of evidence already before the court
regarding the detriment to Shyla.
2. Appointment of counsel for Shyla
A family court has the discretion to appoint counsel for a
child if doing so “would be in the best interest of the minor.” (§
3150, subd. (a); In re Marriage of Metzger (2014) 224 Cal.App.4th
1441, 1446 (Metzger).) In considering whether to appoint counsel
for a child, the court “should take into account” several factors,
including “whether (1) [t]he issues of child custody and visitation
are highly contested or protracted; (2) [t]he child is subjected to
stress as a result of the dispute that might be alleviated by the
intervention of counsel representing the child; (3) [c]ounsel
representing the child would be likely to provide the court with
relevant information not otherwise readily available or likely to
be presented; (4) [t]he dispute involves allegations of physical,
emotional, or sexual abuse or neglect of the child; (5) [i]t appears
that one or both parents are incapable of providing a stable, safe,
and secure environment; (6) [c]ounsel is available for

35
appointment who is knowledgeable about the issues being raised
regarding the child in the proceeding; [and] (7) [t]he best interest
of the child appears to require independent representation.” (Cal.
Rules of Court, rule 5.240(a).)10 The appointment of counsel is
reviewed for an abuse of discretion. (Metzger, at p. 1450.)
The family court did not abuse its discretion in declining to
appoint separate counsel for Shyla. The move-away proceeding
did not occur in a vacuum; instead, it came less than a year after
a protracted, 11-day evidentiary hearing where the true and full
extent of mother’s orchestration and manipulation of Shyla came
to light. Tellingly, no one had requested counsel for Shyla during
that prior proceeding; indeed, when the court inquired whether
counsel for Shyla should be appointed during the restraining
order proceedings, mother rejected the idea. Given this history,
the family court acted within its discretion in finding that the
appointment of counsel at this stage would do little more than
insert a new third party into the fray who would need to get up to
speed on nearly a decade of litigation when Shyla’s differing
attitudes towards father (depending on whether mother was
present) was already part of the record. The propriety of the
family court’s ruling is confirmed by examining the pertinent
factors. Although the subject of the hearing (child custody) and
the fact that mother had been found to be incapable of providing
a stable and secure environment favored the appointment of
counsel, the facts that appointment of counsel would likely
increase Shyla’s stress, that new counsel would not likely provide
additional information over and above what Shyla had already
been represented to believe, and that the appointment of counsel

10 There is an eighth factor when multiple children are
involved, but it is not relevant here.

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would protract these proceedings even further counseled against
the appointment of counsel. Mother urges that counsel for Shyla
could have doubled as an investigator of sorts to support mother’s
case, but this argument simply confirms the family court’s chief
concern—namely, that mother was requesting the appointment of
counsel to effectively hit the reset button on the already-litigated
custody order.
3. Appointment of custody evaluator
A family court also has the discretion to appoint a “custody
evaluator” to examine whether to make an order changing a
child’s custody. (In re Marriage of Winternitz (2015) 235
Cal.App.4th 644, 649; Evid. Code, § 730; Cal. Rules of Court, rule
5.220.) The family court did not abuse its discretion in not
appointing a custody evaluator in this case given that the court
had recently conducted extensive hearings on Shyla’s proper
placement and that the issue underlying the move-away request
was the much narrower, threshold question of whether the move
would be detrimental to Shyla (rather than whether to transfer
her to mother’s custody should that detriment be found to exist).

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 DISPOSITION
The custody, move-away, and sanctions orders are
affirmed. Father is entitled to his costs on appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

______________________, J.
HOFFSTADT

We concur:

_________________________, P. J.
LUI

_________________________, J.
CHAVEZ

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