Chalmers v. Hirschkop (213 Cal. App. 4th 289, 2013)

Opinion

KLINE, P, J.

Tiela Chalmers and Michael F., the biological parents of Eliana F, entered into a contract to share custody of Eliana. At the time of Eliana’s birth, Tiela was in a relationship with Lisa Hirschkop. In 2008, after Tiela and Lisa had terminated their relationship, Lisa filed a request as a stepparent pursuant to Family Code section 3101 for visitation with Eliana. The court’s order on October 23, 2008, denied Lisa’s petition (the 2008 order), and found that she had failed to meet the burden of proof required to override the parents’ joint decision regarding visitation.

Subsequently, the parents further restricted Lisa’s access to Eliana and Lisa filed a motion to modify the 2008 order. She also asked the trial court to require Eliana to testify or be examined. The court denied Lisa’s request to have then 10-year-old Eliana testify and denied her motion to modify the 2008 order.

Lisa appeals the order denying her request to modify the 2008 order. She claims, among other things, that the trial court did not apply the law correctly and that the court was obligated to conduct an evidentiary hearing. She also contends that the court abused its discretion by terminating jurisdiction over custody issues.

We hold that a stepparent cannot request a modification of a prior court order that denied visitation under section 3101, subdivision (a). Once the trial court denies on the merits a stepparent’s request for visitation under section 3101, subdivision (a), no legal authority permits the court to consider a modification of this final order. We also are not persuaded by Lisa’s other arguments and affirm the judgment.

BACKGROUND

Tiela and Michael began meeting with each other to discuss having a baby together by artificial insemination. Michael and Tiela entered into a coparenting contract on April 2, 2000, and agreed to joint legal and physical custody of their child. Michael and Tiela’s child, Eliana, was bom in 2001.

In March 2000, after Tiela and Michael had agreed to have a baby together, Tiela and Lisa became involved in a romantic relationship. Tiela and Lisa registered as domestic partners in 2003. From 2001 until 2006, Lisa was a stepparent to Eliana.

Tiela and Lisa separated in May 2006. A little less than one year later, in April 2007, Tiela filed a petition in the superior court for dissolution of the domestic partnership. Judgment was entered dissolving the domestic partnership on December 18, 2007.

On January 24, 2008, a little less than one month after judgment was entered dissolving the domestic partnership, Lisa filed a motion for stepparent visitation of Eliana. Lisa filed an amended motion for visitation on August 8, 2008; she also requested attorney fees, costs, and an injunctive order. Tiela opposed the motion and Michael filed a declaration in support of Tiela’s opposition to Lisa’s motion.

The trial court held a hearing on Lisa’s motion on September 16, 2008. Counsel for Lisa argued that Lisa was a stepparent and it was in Eliana’s best interests to spend time with her. The court noted that both legal parents agreed with limited visitation and both objected to increasing visitation to 15 hours a week, which was what Lisa sought. Counsel for Lisa argued that the visitation offered was not reasonable because the parents could at any point in time completely eliminate all visitation. The court responded that Lisa was requesting legal rights due a parent and emphasized that Lisa was not a legal parent.

At the hearing, the trial court denied Lisa’s motion for visitation. The court explained: “This is not a situation where, as the court said before, [Lisa] has a right or stands on the footing as a parent. She is being provided access to the child. She may consider it limited access, but that’s the prerogative of the parents. And she may not like that, but we’re not in a situation where the parents have completely cut her out of the child’s life, [f] And in fact, they, as parents, have the responsibility and the duty to make decisions that they determine, jointly, are in this child’s best interest. They have done so and this court is not going to interfere with that. The court respects that. And in fact, applauds the fact that parents can make those decisions without the necessity of the court imposing its view in a situation where the court doesn’t know the child.”

The court elaborated: “And what [Lisa] wants the court to do is simply step over all of these regulations where the parents are working in unison and making determinations and have a custody evaluation, which is completely unwarranted, and allow her more access to the child when both parents are disagreeing. And she’s not established that there is a detriment. And that’s what she needs to do in this situation, as the court reads the law. [