Mom seeks joint custody in California Divorce Court but Gets More

Is it possible for a divorce judge in California to give someone something that they didn’t even ask for?  Apparently, the answer is yes, according to a recent case by the California Court of Appeal:  Marriage of R.K. v. G.K. (2025) 25 DJDAR 7033.

In R.K., things were not o.k.  First, the parties got divorced in July 2021.  Based on the parties’ agreement, Father was given sole legal and sole physical custody of their young daughter.  There was also to be professional supervision of Mother’s visitation, as Mother had a history of substance abuse.

But just a few months later, Mother filed a post-judgment request for order (“RFO”) seeking joint legal and joint physical custody of their daughter, who was about five years old at that time.

A three-day evidentiary hearing took place a while later.  Somehow, there was no documentation of what the judge decided.  Part of this was because the parties did not hire a court reporter to transcribe the proceedings.  So, we really do not know what happened.  Nevertheless, in August 2023, Mother filed a declaration reminding the court that the parties were (apparently) awarded joint legal custody.  Mother also stated that the parties “continue(d) to have joint legal custody” of their daughter and that at the hearing the previous year, the court had ordered “a shared parenting plan.”  Finally, Mother stated that “[Father]” has moved to a remote area of California, while denying me phone contact with our daughter. . . . The current order provides insufficient . . . time for me to maintain a relationship.”

Then, on November 6, 2023, the judge issued a 23-page ruling, which he called a “tentative decision”.  In the ruling, the judge said that Father “is high conflict,” that he “has denied 80 % of the court-ordered electronic communications”, and that he “has consistently, wrongfully, and unilaterally cancelled and denied in-person visitation between the minor child” and her mom.

The judge was not done, stating that Father had “acted as a gatekeeper, violated the parental rights of [Mother], and did not act “in the best interest of the minor child in denying the visitation.”  The court also said that Father had, “as a pattern of conduct, violated the Court’s orders”; his “testimony during trial, and representations to the Court since trial, (had) not been credible”; and that the mother was “the parent most capable of facilitating frequent and continuing contact within the meaning of Family Code § 3020”.

The judge also stated that Father had “proven that [h]e is incapable or unwilling to facilitate frequent and continuing contact with the minor child and the non-custodial parent”; that he “has intentionally delayed the legal proceedings by making not-credible representations to the Court” and that he “is deeply suspicious and accusatory of other people, which is determinantal to facilitating reasonable co-parenting”.  The judge also stated that Mother “has historically made more reasonable efforts to coparent,” she had “over two years sobriety and is continuing in treatment,” and that Father “improperly tried to influence the Court proceedings in his attempt” to have the professional supervisor who supervised visitation between Mother and Daughter “change his report;”

Based on all of this, Mother did not get joint custody; rather, she was given sole physical custody of Daughter, effective December 16, 2023.

Father appealed, arguing that he was never given notice that Mother was seeking full custody at the hearing in November 2022.  His argument was that all he was given notice of was that Mother was seeking an upgrade to joint physical custody.  That would be a pretty good argument, but Father lost at the Court of Appeal because he failed to object to the scathing November 6, 2023, tentative ruling by arguing that the trial judge (or Mother) denied him notice.  Thus, the justices, by a 3-0 vote, said that Father had waived his “lack of notice” or “due process” argument.

But the appeals court said that even if Father had preserved his argument about a lack of notice, he would have lost.  The reasoning was that “Mother’s Request sought joint physical custody of Daughter.  This placed Father on notice that physical custody of Daughter (in general) was at issue.”  (Italics and commentary added.)  The 12-page opinion said that in light of the damning findings made by the trial judge, “the trial court could lawfully, in the exercise of its discretion and without giving express notice to Father, consider whether to award Mother more than she had requested and grant her sole physical custody”.  And even if Father was “surprised” by the trial court’s ruling, he was on notice and “he could have raised his due process contentions in the trial court by simply objecting to the sole custody ruling in some manner.”  But he did not do this at any time, and then a judgment, prepared by Mother’s lawyer, was filed on January 3, 2024, two months after the tentative decision.

Father made a number of other arguments to the Court of Appeal, including that the judge’s order violated the general principle that courts are supposed to keep siblings together.  But the justices noted that Daughter’s so-called siblings were not siblings but stepsiblings.  And, going back to the same issue discussed above, Father never addressed the issue of the stepsiblings in the time between the issuance of the tentative ruling and the judgment.

How do you sum up what happened?  The first mistake was that there was no court reporter, or maybe when Father appealed he did not include a transcript.  In any event, the appeals court could not decide whether there was enough evidence to support the judge’s findings.  Accordingly, the justices had to assume that the evidence for these findings was adequate, because it was Father’s burden, as the appealing party, to show that insufficient evidence supported the findings.  And how do you do that if there is no transcript?  Talk about a catch-22 issue.

So the Court of Appeal had to basically assume the truth of the findings, and while there may be some judge out there who would have ruled differently even with the same findings, the findings were clearly enough for this judge to order a “swap” – a complete change of custody in which Mother went from having a minority of the time with her daughter and having that time professionally supervised, to becoming the sole physical custodian of the child.

In the end, we really do not know what the trial judge’s attitude about due process was.  He may not have thought about it, only to have Father waive the issue by not objecting to the decision before the judgment was entered.  Or he may silently have thought about it but figured that custody in general was at issue, both parties were present, and thus his decision was “fair game.”  Another thought is that a minor’s welfare was at issue here, and judges, with the power of the robe, are going to try to do the right thing and not get hung up in technicalities.

Of course, if Father had not done some or all of the things the judge found that he had done, none of this would be an issue and he probably would still be the custodial parent, as only three months had passed since the underlying divorce judgment – usually not enough time to justify a change in custody absent a showing of “changed circumstances”.

So, if you are going through a custody matter in California divorce court, don’t assume anything.  Be on your best behavior, be prepared, pay for a court reporter, and be sure to have a skilled San Diego family lawyer, preferably someone licensed in California as a Certified Family Law Specialist.  (Of course, if you have a child or children and you are not with the other parent anymore, you should try to be on your best behavior, even if there is no custody matter pending.)

The R.K. decision was ordered by the justices to be published.  So even though the case arose from a decision of the San Luis Obispo County Superior Court, the decision is binding on all trial courts in California.