DATO, J.
Raphael M. (Father) appeals an April 2016 postjudgment order allowing Monica M. (Mother) to move to Georgia with the parties' 11-year-old son, K.M. On appeal, Father claims the move-away order must be reversed because the trial court applied the incorrect legal standard. He also challenges the sufficiency of the evidence supporting the court's finding of child abuse. We conclude substantial evidence supports the abuse finding. However, the court did not apply the correct legal standard in granting Mother's move-away request. We therefore reverse the April 2016 and June 2016 move-away rulings and remand for the trial court to make a determination as to move-away based on the correct legal standard.
Mother and Father are the parents of a young boy, K.M., born in 2004. The parties married in 2001, separated in 2007, and divorced in January 2009. Mother and Father are both active duty service members. Father serves in the United States Navy; Mother serves in the United States Army. At dissolution, the parties agreed in their marital settlement agreement to share joint legal custody of K.M. and give Mother primary physical custody while Father was deployed overseas.
The parties changed their custody arrangement over the years to account for their respective military assignments. When Mother was assigned to deploy to South Korea for three years, she filed a move-away request seeking to relocate there with K.M. The parties mediated with the assistance of Family Court Services (FCS) and agreed to the FCS recommendation for K.M. to "primarily reside" with Father in California and spend school holidays with Mother.
Mother returned from her deployment in 2015. On August 26, 2015, she filed an ex parte application for an emergency custody order, alleging Father had physically abused K.M. In her supporting declaration, Mother asserted Father had disciplined K.M. with a belt on two occasions on or around August 21, leaving bruises on K.M.'s buttocks. She attached photos of the bruising and a sheriff's report to her declaration. She noted Father had primary physical custody over K.M. due to her recent overseas deployment, but indicated she would be requesting primary physical custody in Georgia. A day later, Mother filed a move-away motion seeking to relocate with K.M. to Georgia. The court held a hearing on the emergency custody application that same day and awarded "[t]emp. physical custody to Mom in Georgia, pending RFO re: move-away."
In October 2015, the parties attended an FCS mediation on Mother's pending move-away motion. The resulting FCS report indicated Child Welfare Services (CWS) had substantiated the allegation that Father physically abused K.M. in August. FCS recommended the parties share joint legal custody while K.M. primarily resided with Mother. In December 2015, the Navy issued a letter substantiating the child abuse allegation against Father. Mother filed a second move-away motion that month, seeking to relocate with K.M. to Germany based on new deployment orders. This motion relied on the same abuse allegations as her move-away motion to Georgia.
In March 2016, the court held a long cause hearing on Mother's move-away motion to Georgia.
Mother contended it would be in K.M.'s best interest to relocate with her to Georgia (and Germany). She testified K.M. had lived with her since August 22, 2015, after Father had hit him on his buttocks with a belt, leaving multiple bruises. She saw the injuries when visiting K.M. in August 2015 and contacted the sheriff's department. She described K.M. as "very, very traumatized" and testified his self-esteem had improved since leaving Father's care.
Father admitted hitting K.M. with a belt in August 2015 for "two separate offenses." On one occasion, K.M. lied about completing an assignment, did not feed the dogs, and allowed the dogs to get loose in the neighborhood. On another, K.M. disobeyed Father's "direct order" to go to bed early. Father believed K.M.'s weaknesses were lying and a lack of focus and respect. He testified he had been spanked as a child and felt it helped him "be a better man." He believed physical discipline would help K.M. stay on the right side of the law. Father used other disciplinary techniques as well, including restricting electronics, adding chores, and imposing earlier bedtimes. He described his relationship with K.M. as affectionate, loving, and caring. Father expressed regret for bruising K.M. and stated he was willing to eliminate spanking and change his disciplinary techniques to methods that were "more mental and verbal, less physical."
Father also called four witnesses who spoke to the strength of his bond with K.M. Family friends Tonya W., Darrin C., and Deirdre C. testified that K.M. and Father shared a loving relationship, that K.M. looked up to Father as his hero, and that K.M. did not talk about or exhibit signs of physical abuse.
Finally, Father's wife, Cheryl, testified that Father typically used a belt to discipline his son. Cheryl had seen Father inflict physical discipline but had never observed excessive spanking or abuse. Cheryl described the father-son relationship as "very loving and affectionate" and stated K.M. idolized Father. She recalled K.M. crying after Father hit him in August 2015, but she was not concerned because she knew K.M. and Father had a close relationship.
After continuing the hearing for closing arguments, the court issued its findings and order after hearing. It found that "Father's use of a belt was reckless, resulted in injury to the child, and constituted abuse." Although the court believed Father loved his son and did not intend to injure him or cause lasting harm, it determined that "he reasonably should have known that the manner in which he used the belt would result in excessive and impermissible pain, suffering, and injury on a child." The court also found the evidence established that "Father has taken steps to correct his lapse in judgment and avoid future infliction of harm on the child."
Turning to Mother's move-away request, the court found that Mother was the custodial parent following her ex parte request for emergency custody in August 2015. Accordingly, it concluded that Father, as noncustodial parent opposing K.M.'s relocation, had to prove that the proposed move to Georgia would be detrimental to K.M. Finding Father had not met that burden, the court granted Mother's move-away motion. The court adopted the FCS recommendation to grant Mother primary physical custody, but modified the plan in two significant respects, granting Mother sole legal custody and removing the requirement that Father's visitation be supervised.
Father then filed a motion to modify the April 2016 order or, alternatively, for a new trial on Mother's move-away request. Among other arguments, Father claimed the court applied the wrong legal standard to grant Mother's move-away motion. Father also challenged the sufficiency of the evidence supporting the court's finding of abuse.
On June 15, 2016, the court granted Mother's move-away motion to Germany. The court adopted the FCS recommendation for K.M. to primarily reside with Mother in Germany and spend school holidays with Father in California.
Father timely appealed the April 2016 order.
On appeal, Father challenges the sufficiency of the evidence supporting the trial court's factual finding that his use of a belt to discipline K.M. constituted abuse. He also argues that the trial court used the wrong legal standard in its April 2016 order granting Mother's move-away motion to Georgia. As we explain, we disagree with the first contention but agree as to the second.
The Family Code directs courts to consider "[a]ny history of abuse by one parent . . . against . . . [¶] (1) [a]ny child to whom he or she is related by blood or affinity or with whom he or she has had a caretaking relationship, no matter how temporary" in evaluating the best interest of a child. (Fam. Code, § 3011, subds. (b) & (a).)
Under the DVPA, it is "`abuse'" "[t]o intentionally or recklessly cause or attempt to cause bodily injury." (Fam. Code, § 6203, subd. (a)(1).) "Abuse is not limited to the actual infliction of physical injury or assault." (Id., subd. (b).) Under the Penal Code, "child abuse or neglect" includes "unlawful corporal punishment or injury" (id., § 11165.6), which is defined as "a situation where any person willfully inflicts upon any child any cruel or inhuman corporal punishment or injury resulting in a traumatic condition" (id., § 11165.4).
"As a prerequisite to considering allegations of abuse, the court may require substantial independent corroboration, including, but not limited to, written reports by law enforcement agencies, child protective services or other social welfare agencies, courts, medical facilities, or other public agencies or private nonprofit organizations providing services to victims of sexual assault or domestic violence." (§ 3011, subd. (b)(3).)
In its April 2016 order, the trial court considered whether Father's use of a belt to discipline K.M. constituted abuse, noting that the inquiry was necessarily context-dependent:
Based on the evidence presented, the court found that Father hitting K.M. with a belt in August 2015 constituted abuse:
However, the court also found that "Father has taken steps to correct his lapse in judgment and avoid future infliction of harm on the child."
Father challenges the court's finding of abuse on appeal. "We review custody and visitation orders for an abuse of discretion, and apply the substantial evidence standard to the court's factual findings." (In re Marriage of Fajota (2014) 230 Cal.App.4th 1487, 1497.) On review for substantial evidence, we view the evidence in the light most favorable to the court's findings; the testimony of a single witness, even the party himself, may be sufficient. (In re Marriage of Mix (1975) 14 Cal.3d 604, 614 (Mix).) We do not reweigh the evidence, resolve conflicts in the evidence, or make determinations as to credibility. (In re Marriage of Ackerman (2006) 146 Cal.App.4th 191, 204 (Ackerman).)
Applying that standard, we conclude substantial evidence supports the trial court's abuse finding. The reckless causation of bodily injury constitutes abuse. (§ 6203, subd. (a)(1).) As we explain, the court reasonably found that "Father's use of a belt was reckless [and] resulted in injury to the child," and that Father "reasonably should have known that the manner in which he used the belt would result in excessive and impermissible pain, suffering, and injury on a child."
Father admitted he hit then-10-year-old K.M. with a belt on separate occasions within the same week for lying, not feeding the dogs, and letting the dogs get loose. Deputies from the sheriff's office interviewed K.M., who told them about three separate incidents in a one-week period. K.M. told Mother that Father made him stand still at the end of the bed with his hands on the rail, while Father hit his buttocks with a belt. K.M. told Mother that Father would deliver approximately 10 hits each time he used the belt.
When Mother picked up K.M., he showed her his injuries. Mother testified that K.M.'s buttocks had "multiple bruises and one that looked very fresh, very red." Father conceded it was "[v]ery possible" that his spanking could have bruised K.M. Cheryl recalled K.M. crying when Father hit him in August 2015, explaining he cried "because physical discipline does not feel good." Father admitted he did not stop hitting K.M. when he started to cry. Mother described K.M. as "very, very traumatized" after the incident, testifying that he would "break down" and say his father hit him because he was a "bad son."
The court also had "substantial independent corroboration" of abuse. (§ 3011, subd. (b)(3).) It received into evidence photographs depicting bruising on K.M.'s buttocks. According to the sheriff's report dated August 23, 2015, K.M. reported Father had hit him with a leather belt on three separate occasions in the last week. On August 19, when K.M. did not feed his dogs on time, Father hit him 10 times with a belt on his buttocks. K.M. cried because it stung; he fell down at one point, but Father told him to get back up and continued to hit him. Afterwards, K.M. had bruising on his buttocks and was in pain. The next day, when K.M. lied to Father about how much he had read that day, Father hit him 10 times with a belt on his buttocks. Later that night, K.M. disobeyed Father's instruction to go to bed, and Father hit his buttocks five more times with a belt. On August 21, when K.M. let the dog get loose and forgot to throw away his trash, Father hit him with a belt 10 times and said, "If you keep going down this path, I'll keep hitting you until I get tired," and "If you cry, I want to discipline you more." The sheriff's department investigator observed two slight bruises on K.M.'s left buttock from these events.
In addition, the court received into evidence several exhibits attached to Mother's trial brief. The Navy issued a letter that found Father's actions in August 2015 "met . . . criteria for child physical abuse of [K.M.]." K.M.'s therapist prepared a treatment plan to address K.M.'s depression and low self-esteem and explore "facts and feelings regarding the abuse." Finally, the November 2015 FCS report stated that CWS substantiated a finding of physical abuse in August 2015 and noted the Orange County Sheriff's Department had a pending criminal investigation regarding Father's potential child abuse.
Together, this evidence amply supports the court's finding of abuse. First, the court reasonably found that Father's use of a belt to hit K.M. "resulted in injury to the child." Pictures, Mother's testimony, and the sheriff's report indicated that Father's hitting K.M. with a leather belt multiple times in a four-day period left bruises on K.M.'s buttocks. On appeal, Father suggests there was no expert testimony or other evidence concerning the severity of K.M.'s bruises. However, Father does not point to, nor have we found, any authority suggesting that expert testimony as to the severity of injuries is required to sustain a factual finding of abuse. Likewise, testimony that K.M. did not exhibit "semi-permanent or permanent injuries," broken skin, or broken bones—and testimony that K.M. never mentioned any abuse to family friends—does not change our analysis. That the evidence could support a contrary finding does not warrant reversal on appeal, and the testimony of a single witness may be sufficient to affirm a trial court's factual findings. (Mix, supra, 14 Cal.3d at p. 614.)
Second, the court reasonably found that Father's conduct was "reckless" and that he should have known it would cause impermissible pain, suffering, and injury. Father's testimony established that K.M. cried in pain when he used the belt. The sheriff's report indicated that Father hit K.M. 35 times on the buttocks over a four-day period in August 2015 for transgressions such as letting the dog get loose, forgetting to feed the dog, lying about having completed reading, and not going to bed when told.
Father argues he did not realize his actions would cause injury and points to his own testimony that past spankings did not cause bruising. However, recklessness does not require actual knowledge. A person may be found to have acted recklessly where he "does not realize or appreciate the high degree of risk involved, although a reasonable man in his position would do so." (Rest.2d Torts, § 500, com. a.) "An objective standard is applied to him, and he is held to the realization of the aggravated risk which a reasonable man in his place would have, although he does not himself have it." (Ibid.) "It is enough that he realizes or, from facts which he knows, should realize that there is a strong probability that harm may result, even though he hopes or even expects that his conduct will prove harmless." (Id., com. f, italics added; see Delaney v. Baker (1999) 20 Cal.4th 23, 31-32 [applying Rest.2d Torts, § 500 to construe the word "`recklessness'"].)
Father also claims his actions constituted reasonable parental discipline under Gonzalez v. Santa Clara County Dept. of Social Services (2014) 223 Cal.App.4th 72 (Gonzalez). Gonzalez held that parents have a right "to impose reasonable corporal punishment on their children as a legitimate disciplinary measure" when there is: (1) a genuine disciplinary motive; (2) a reasonable occasion for discipline; and (3) a disciplinary measure reasonable in kind and degree. (Id. at pp. 75, 91.) Under the specific facts presented in that case, the Gonzalez court could not say the mother's spanking of her 12-year-old daughter with a wooden spoon, resulting in visible bruises on her buttocks, constituted child abuse as a matter of law. (Id. at pp. 92-93.) The court did not say that disciplining a child with an object and causing bruises is never abuse. To the contrary, it noted "the presence of lasting bruises or other marks may support a finding that a parent crossed the line between permissible discipline and reportable abuse." (Id. at p. 92, italics added.) Notably in Gonzalez, the parents tried spanking as a last resort to address the daughter's troubling behavior pattern, including her "unhealthy interest in street gang culture" and declining grades, and they did so without any "hint of eagerness." (Id. at pp. 92, 91.)
Gonzalez is distinguishable. Although Father testified generally about nonphysical methods of discipline he would sometimes use, he did not present any evidence that that he tried such methods in August 2015 and used physical discipline only as a last resort. He arguably showed a "hint of eagerness" in telling K.M., "If you cry, I want to discipline you more." Critically, Father's conduct differed in kind and degree from Gonzalez. There was evidence he hit then-10-year-old K.M. with a leather belt 35 times in a four-day period. He used enough force that K.M. fell down in one instance, but Father made him stand up and continued hitting him. Based on these facts, unlike in Gonzalez, Father "should have known that bruises were likely to result from the amount of force applied and the method of its application." (Gonzalez, supra, 223 Cal.App.4th at p. 93.) The trial court reasonably rejected Father's claim that his conduct was acceptable parental discipline.
Thus, substantial evidence supports the trial court's finding that Father's use of a belt in August 2015 to physically discipline K.M. "was reckless, resulted in injury to the child, and constituted abuse."
Father challenges the trial court's April 2016 ruling granting Mother's move-away request to Georgia, arguing the court applied the wrong legal standard. He contends that ruling, as well as the subsequent ruling granting Mother's move-away motion to Germany, should be reversed. As we explain, we agree that the court did not apply the correct legal standard in granting the move-away request.
At the outset, we must consider whether Father's challenge to the April 2016 move-away order to Georgia is justiciable in light of a subsequent order, dated June 15, 2016, allowing K.M. to relocate with Mother to Germany. Father's notice of appeal indicates appeal only from the April 2016 order. However, he argues in his appellate briefs that "any subsequent orders by the family court based on this erroneous custodial finding, such as a subsequent move-away order to Germany, should also be vacated." Indeed, the second move-away order was based on the same abuse allegations as the first. No new testimony was presented and the court relied on the prior order, reasoning that "[w]hether the child lives in Georgia or Germany, visitation requires a lengthy trip."
"[I]t is and has been the law of this state that notices of appeal are to be liberally construed so as to protect the right of appeal if it is reasonably clear what [the] appellant was trying to appeal from, and where the respondent could not possibly have been misled or prejudiced." (Luz v. Lopes (1960) 55 Cal.2d 54, 59; Cal. Rules of Court, rule 8.100(a)(2) ["The notice of appeal must be liberally construed."].) Given Father's argument in his appellate briefs and the link between the two move-away orders, we conclude Father's challenge to the April 2016 order is justiciable on appeal despite the subsequent order. (See Norco Delivery Service, Inc. v. Owens-Corning Fiberglas, Inc. (1998) 64 Cal.App.4th 955, 960-961 [liberally construing notice of appeal that specified different order than one addressed in briefs, where there was no prejudice or confusion concerning scope of the appeal].)
The Family Code sets forth California's statutory scheme governing child custody and visitation, and the overarching concern is the best interest of the child. (In re Marriage of Brown & Yana (2006) 37 Cal.4th 947, 955.) In making an initial custody determination, the trial court has wide discretion to choose a parenting plan that serves the best interest of the child in light of all relevant factors, "including the child's health, safety, and welfare, any history of abuse by one parent against any child or the other parent, and the nature and amount of the child's contact with the parents." (Id. at p. 956; see § 3011 [setting forth best interest factors].) The court must also consider "which parent is more likely to allow the frequent and continuing contact with the noncustodial parent." (§ 3040, subd. (a)(1).) The court has the "widest discretion to choose a parenting plan that is in the best interest of the child" (id., subd. (c)), and may ultimately "award custody either to both parents (joint or shared custody) or to only one parent (sole custody)." (Brown, at p. 956.)
"It is always a difficult task for a trial judge to make a custody determination, but the degree of difficulty increases significantly when one parent decides to move to a distant location and seeks to relocate the child." (Niko v. Foreman (2006) 144 Cal.App.4th 344, 362 (Niko).) "A custody decision allowing one parent to move the children out of the state necessarily interferes with the other parent's ability to have frequent and continuing contact with them" and "`is one of the most serious decisions a family law court is required to make.'" (In re Marriage of Seagondollar (2006) 139 Cal.App.4th 1116, 1119.) Different standards apply to move-away requests depending on whether the parent seeking to relocate with the child has sole or joint physical custody.
If a parent with sole physical custody seeks to move away with a child, that parent has the presumptive right to do so and does not have to prove that such a move is necessary. (In re Marriage of LaMusga (2004) 32 Cal.4th 1072, 1078 (LaMusga); In re Marriage of Burgess (1996) 13 Cal.4th 25, 37-38 (Burgess); § 7501, subd. (a).)
A different standard applies to move-away motions when the parents have joint physical custody. (Burgess, supra, 13 Cal.4th at p. 40, fn. 12; LaMusga, supra, 32 Cal.4th at p. 1089, fn. 3.) In joint custody cases, custody may be modified "if it is shown that the best interest of the child requires modification.'" (Burgess, at p. 40, fn. 12, quoting § 3087.) The relocating parent does not have a presumptive right to change the child's residence in such cases; nor does the other parent bear the burden of showing substantial changed circumstances (i.e., that the move will be detrimental to the child) to change the custody arrangement. (Niko, supra, 144 Cal.App.4th at pp. 363-364.) Instead, in joint custody cases when the status quo is no longer viable, the trial court must review de novo what physical custody arrangement is in the best interest of the child. (Id. at p. 364; Mark T. v. Jaimie Z. (2011) 194 Cal.App.4th 1115, 1124 (Mark T.); see Burgess, at p. 40, fn. 12; LaMusga, at p. 1089, fn. 3.) For example, in Brody v. Kroll (1996) 45 Cal.App.4th 1732 (Brody), the court concluded the trial court erred in a joint custody case where it did not determine de novo whether it was in the child's best interest "to give the mother virtual sole custody and allow her to take the child to Connecticut." (Id. at p. 1737.) By contrast, in Niko, the court concluded the trial court properly determined de novo whether the proposed relocation in a joint custody case would serve the child's best interest. (Niko, at p. 364.)
Thus, the applicable legal standard for addressing a move-away motion depends on whether the relocating parent has sole or joint physical custody of the child at the time he or she files the motion. Under the Family Code, "`[s]ole physical custody' "refers to an arrangement in which the child resides with and is under the supervision of one parent, subject to the court's power to order visitation. (§ 3007.) "`Joint physical custody,' "by contrast, refers to an arrangement in which each of the parents have "significant periods of physical custody," and physical custody is "shared by the parents in such a way so as to assure a child of frequent and continuing contact with both parents." (§ 3004.)
Critically, whether parents have sole or joint physical custody is determined by the parties' actual practice. A court evaluates whether the parents in fact share joint physical custody or, instead, whether one parent has sole physical custody with visitation rights to the other. (In re Marriage of Biallas (1998) 65 Cal.App.4th 755, 759-760.) For example, in LaMusga the mother had been awarded "`primary physical custody'" while the father had visitation for a few hours two nights per week and overnight visits on alternating weekends. (LaMusga, supra, 32 Cal.4th at pp. 1081-1082.)
Finally, in looking at the existing custody arrangement for purposes of determining the appropriate legal standard, the trial court must evaluate whether there is a final judicial custody determination in place. In Montenegro v. Diaz (2001) 26 Cal.4th 249 (Montenegro), the Supreme Court recognized that as a practical matter, "many stipulated custody orders are not intended to be final judgments." (Id. at p. 258.) "[A] stipulated custody order is a final judicial determination for purposes of the changed circumstance rule only if there is a clear, affirmative indication the parties intended such a result." (Id. at pp. 258, 259 [neither of two stipulations on custody was a final custody determination; one specifically stated it was temporary, and the other did not use the words "`final,'" "`permanent,'" or "`judgment'"].) Where there is no final judicial custody determination, the changed circumstance rule does not apply and neither parent must show that the proposed move would be detrimental to the child. (F.T. v. L.J. (2011) 194 Cal.App.4th 1, 19-20 (F.T.).) Instead, the court must evaluate de novo what physical custody arrangement would be in the child's best interest, in light of the proposed move. (Id. at p. 22; Mark T., supra, 194 Cal.App.4th at p. 1124.)
We apply the deferential abuse of discretion test to review custody and visitation orders. (F.T., supra, 194 Cal.App.4th at p. 14.) However, "a discretionary order based on the application of improper criteria or incorrect legal assumptions is not an exercise of informed discretion and is subject to reversal even though there may be substantial evidence to support that order." (Id. at p. 16.) "If the record affirmatively shows the trial court misunderstood the proper scope of its discretion, remand to the trial court is required to permit that court to exercise informed discretion with awareness of the full scope of its discretion and applicable law." (Ibid.)
In granting Mother's move-away motion to Georgia, the court reasoned,
The court made no determination as to whether relocation would serve K.M.'s best interest. As we explain, the trial court did not apply the correct legal standard.
The 2009 judgment of dissolution attached a marital settlement agreement in which the parties agreed to joint legal custody. As to physical custody, K.M. would reside primarily with Mother "while Father is deployed," with reasonable child sharing when Father was in the United States. This agreement appears to envision modification after Father returned from deployment, and we question whether it is properly considered a final custody determination under Montenegro, supra, 26 Cal.4th 249. (Compare Richardson, supra, 102 Cal.App.4th at pp. 951, 952 [stipulation incorporated into dissolution judgment for mother to have "`primary physical custody'" and father to have "`reasonable visitation'" explicitly envisioned further resolution of "custody and visitation issues" and therefore was not a final judicial determination of custody] with Jane J. v. Superior Court (2015) 237 Cal.App.4th 894, 898, 902 [parties' conduct demonstrated intent for custody arrangement in marital settlement agreement to be final].)
Mother and Father modified their physical custody arrangement over the years due to their respective deployments. In 2011, when Mother sought to move with K.M. to South Korea for a three-year assignment, the parties agreed to adopt the FCS mediator's recommendation for K.M. to reside "primarily" with Father 70 percent of the time but spend school holidays with Mother. We likewise question whether this agreement can be considered a final custody determination under Montenegro. (See F.T., supra, 194 Cal.App.4th at p. 19 [no final custody determination existed at the time of the move-away motion where parties had stipulated to adopt FCS recommendations "`without prejudice to either party'"].)
Despite our reservations, the parties agreed at oral argument that the 2009 and 2011 custody arrangements both reflected final judicial custody determinations, and we will accept that agreement for purposes of this appeal.
In Keith R., parents had joint legal and physical custody over their daughter pursuant to a temporary order. (Keith R., supra, 174 Cal.App.4th at pp. 1051, 1054.) The court then issued a domestic violence restraining order against the father and directed the mother to have sole legal and physical custody. (Id. at pp. 1051-1052.) When the mother later sought to relocate with their daughter, the court applied the changed circumstance rule based on the premise that she had sole custody. (Id. at pp. 1053-1054.) The appellate court reversed, concluding the trial court had used the wrong legal standard. (Id. at p. 1054.) As the Court of Appeal explained:
Thus, the August 2015 emergency order did not amount to a final judicial custody determination. Instead, the parties' 2011 stipulation would appear to be the operative final custody determination for purposes of evaluating Mother's move-away requests.
Under the 2011 stipulation, K.M. primarily resided with Father in California while Mother was deployed overseas. The arrangement gave Father 70 percent physical custody (largely during K.M.'s school calendar), with K.M. spending summer breaks, spring breaks, and alternate Thanksgivings with Mother, and the parties sharing equal custody during winter breaks. Because the parties' actual practice, rather than their use of terminology, determines whether a parent has sole or joint physical custody (Biallas, supra, 65 Cal.App.4th at pp. 759-760), the question becomes whether this arrangement amounted to sole physical custody for Father or joint physical custody. In Condon, a custody arrangement in which the children spent all school holidays with their father in California, amounting to 12 out of 52 weeks per year, while primarily living with their mother in Australia during the school year was deemed to be joint physical custody. (Condon, supra, 62 Cal.App.4th at p. 552.) Faced with similar facts, we conclude the parties shared joint physical custody of K.M. pursuant to the 2011 stipulation.
In a joint custody move-away case, the trial court considers a parent's move-away request de novo, evaluating what physical custody arrangement is in the best interest of the child in light of the proposed relocation. (Niko, supra, 144 Cal.App.4th at p. 364; Brody, supra, 45 Cal.App.4th at p. 1736.) Because Mother and Father shared joint physical custody under the 2011 stipulation, neither parent bore a burden of showing the move would be detrimental to K.M. (Niko, at pp. 363-364.)
By requiring that Father prove detriment, the trial court did not apply the correct legal standard in granting Mother's move-away motion to Georgia. "[I]f a trial court's decision is influenced by an erroneous understanding of applicable law or reflects an unawareness of the full scope of its discretion, it cannot be said the court has properly exercised its discretion under the law." (F.T., supra, 194 Cal.App.4th at p. 25.) By relying on the emergency custody order issued immediately before Mother's move-away motion, the court improperly elevated a temporary custody order to a final determination that changed K.M.'s physical custody. (Keith R., supra, 174 Cal.App.4th at p. 1054.) We therefore reverse the April 2016 move-away ruling, as well as the subsequent June 2016 move-away ruling that relied on the April ruling, and remand for the court to reconsider Mother's move-away requests under the correct legal standard.
On remand, the court must evaluate Mother's move-away requests de novo, considering whether relocating with Mother (either to Georgia or Germany) would serve K.M.'s best interest. In making that determination, the court should address the factors set forth in section 3011, in particular the effect of its prior finding that Father abused K.M. in August 2015, which we affirm in this decision. (See § 3011, subds. (a) & (b)(1).) Section 3020, subdivision (a) declares as state policy "that the perpetration of child abuse or domestic violence in a household where a child resides is detrimental to the child." Although it is also state policy to ensure that children have "frequent and continuing contact with both parents" (id., subd. (b)), this interest does not override the interest in ensuring "the health, safety, and welfare of the child and the safety of all family members" (id., subd. (c)). On the other hand, the court should consider Father's willingness to change his methods of discipline and the extent to which his actions since the April 2016 move-away order are consistent or inconsistent with those expressed intentions. Because this case involves disputed facts and the exercise of the trial court's discretion, we do not intend to dictate or suggest any particular outcome on remand. (F.T., supra, 194 Cal.App.4th at p. 28, fn. 14; Keith R., supra, 174 Cal.App.4th at p. 1057.)
Mother requested sole legal and physical custody in her August 2015 move-away motion and reiterated her request at the hearing. The court's April 2016 ruling cites the emergency custody order and applies the sole custody standard, indicating the court may have believed the custody issue had been addressed. Given the ambiguity we have noted as to the finality of the 2009 and 2011 stipulations on custody, we recommend the trial court request supplemental briefing from both parties on remand regarding whether the anticipated order on Mother's move-away motion is to reflect a final judicial custody determination. And when it issues its move-away ruling, we likewise suggest that the court expressly indicate whether the resulting custody arrangement constitutes a final judicial custody determination. Pertinent here, section 3044 establishes a rebuttable presumption against awarding joint or sole physical or legal custody to a parent who has recently "perpetrated domestic violence" on the child. (Id., subd. (a).)
A final word about proceedings on remand. Father argues the trial court must hold a new and full hearing on permanent custody and move-away, as the court ordered in Keith R. However, in that case, the court granted the move-away order based on a temporary custody order, "without affording Father an opportunity to meaningfully rebut the section 3044 presumption." (Keith R., supra, 174 Cal.App.4th at p. 1056.) On remand, the Keith R. court directed the trial court to give Father "the opportunity to introduce evidence pertinent to the best interests of the child," including "evidence about the nature of Father's relationship with Daughter, his ability and willingness to care for her, the extent, if any, to which he poses a risk of physical and emotional abuse, his receptivity to being a `friendly parent,' and Daughter's needs for more than marginalized parental relationships." (Id. at p. 1057.)
Here, by contrast, Father was not precluded from introducing evidence relevant to K.M.'s best interest. Father, his wife Cheryl, and family friends presented evidence regarding the strength of Father's bond with K.M. and Father's concern for K.M.'s well-being.
Finally, we reject Father's request to order K.M. to be returned to California pending further proceedings on move-away. To promote stability and minimize disruption in young K.M.'s life, the trial court may, in its discretion, allow the child to remain in Mother's physical custody pending ultimate resolution of her move-away requests.
The portions of the April 18, 2016 and June 15, 2016 orders granting Mother's move-away requests to Georgia and Germany, respectively, are reversed. The matter is remanded for reconsideration of Mother's move-away requests, consistent with the views expressed in this opinion. In all other respects, the April 18, 2016 and June 15, 2016 orders are affirmed.
In the interests of justice, the parties shall bear their own costs on appeal.
McCONNELL, P. J. and HALLER, J., concurs.
