I. INTRODUCTION

In 2017, a judgment was entered pursuant to Family Code1 section 2024

dissolving the marriage of William K. and Claudia K.2 The judgment included a final

custody order providing for joint physical and joint legal custody of their two minor

children. William remarried and moved to Oregon; Claudia remarried and remained in

California; and the two made informal arrangements with respect to dividing their time

with the children.

In May 2022, Claudia and her new husband were involved in a domestic violence

incident while the children were present in the home. Law enforcement intervened, an

emergency protective order and criminal charges were filed against Claudia’s husband,

and an investigation was initiated by the relevant child protective services agency. When

William learned that Claudia had let her husband back into the home following the

expiration of the emergency protective order, he filed a petition seeking modification of

the custody order to permit the children to move to Oregon and to grant him full physical

custody of the children.

After conducting a trial on the petition, including days of live testimony by both

parties, the trial court granted William’s petition and modified the custody order to grant

1 Undesignated statutory references are to the Family Code.

2 Because this case involves a potential victim in a criminal proceeding, the protected parties in a domestic violence related restraining order, and children in proceedings under the Family Code, we refer to the parties by first name and last initial to protect their privacy and their children’s privacy. (Cal. Rules of Court, rule 8.90(b)(1), (4).) Additionally, because the parties share the same last name, we will refer to each party by first name only for clarity; no disrespect is intended.

2 William full physical custody and to permit the children to move to Oregon. Claudia

appeals, arguing the trial court abused its discretion in modifying the existing custody

order. We find no abuse of discretion in the record and affirm the order.

II. BACKGROUND

A. Procedural History

In 2017, a judgment was entered dissolving the marriage of William and Claudia.

The judgment included a final custody order that awarded William and Claudia joint

legal and joint physical custody of their two minor children with a reasonable right of

visitation to the party not exercising physical custody at any given time.

In July 2022, William and Claudia filed competing petitions requesting

modification of the existing custody order. William’s petition requested the trial court

grant him sole physical custody of the children while maintaining joint legal custody;

whereas Claudia’s petition requested the trial court grant her sole physical and sole legal

custody of the children. In response to the competing petitions, the trial court set the

matter for a noticed hearing. The hearing spanned the course of multiple days in which

the trial court received numerous documents and heard live testimony from both Claudia

and William.

B. Declarations in Support of Petitions

In support of his petition, William submitted a declaration attesting that he now

resided in Oregon and that, up to this point, the parties had informally worked out how to

divide their custody time. Generally, the children would spend their time with Claudia

when their physical presence in school was required, but they would spend time with

3 William during extended weekends, holidays, summers, and remote learning during the

COVID-19 pandemic. William had recently been informed that the children were home

during a domestic violence incident, which resulted in the arrest of Claudia’s husband,

criminal charges being filed against Claudia’s husband, and the opening of an

investigation by child protective services. William recounted various comments from

both his children suggesting that this may not have been an isolated incident.

In support of her petition, Claudia submitted a declaration attesting that her

children were currently in Oregon and that William had failed to return the children to

California on a previously agreed upon date. Claudia attested that the children spend the

majority of the year with her and have never lived permanently outside of California.

Claudia acknowledged there had been an incident in May 2022 with her husband in

which the “authorities were involved,” but she asserted that the children did not directly

witness the incident because “they were in their bedroom when the incident occurred.”

She further acknowledged that child protective services initiated an investigation as a

result of the incident but stated that the investigation had now concluded without any

further action. She stated that her husband has since returned to the home.

C. William’s Testimony

William testified that, after his separation from Claudia, the two reached an

informal agreement regarding how best to divide their custody time. Generally, the

children would stay with Claudia during the academic school year and stay with William

whenever their physical presence at school was not needed—including weekends,

extended weekends, holiday breaks, summer break, and a period of time during the

4 COVID-19 pandemic when they were required to utilize remote learning. At the end of

2021, William remarried and moved to Oregon, but the informal agreement regarding

custody time continued, with the children spending their spring and summer breaks with

William.

In May 2022, William received an unexpected call from Claudia informing him

that he would be contacted by child protective services regarding an “altercation” at

Claudia’s home. Claudia did not share any details, and William assumed it was a minor

altercation. However, over the summer break, the children began to share more with

William regarding the incident, describing a situation where they heard loud arguing

between Claudia and her husband and witnessed Claudia “beaten up and bloodied” after

the argument. He researched the incident and discovered a police report that suggested

that the incident involved a baseball bat and charges of assault with a deadly weapon

filed against Claudia’s husband.

William contacted Claudia and learned that she had let her husband back into the

home while the children were away for the summer, and that she intended to bring the

children on a camping trip with her husband. William testified he became concerned

because Claudia appeared to be brushing off a serious domestic violence incident.

According to William, both children expressed their desire to stay in Oregon until a new

custody arrangement could be worked out. He attempted to enroll his children in therapy

to address any unresolved trauma from the incident, but he only managed to place the

children on a waiting list.

William testified that, when he drove the children back to California at the end of

5 their summer break, the children expressed fear upon seeing vehicles belonging to

Claudia’s husband parked outside of Claudia’s home. Claudia took no action to enroll

the children in therapy until urged to do so by William and, even then, Claudia only

agreed to family therapy sessions in which Claudia would be present.

With respect to any proposed move to Oregon, William acknowledged that his

children were still trying to navigate their relationship with his new wife, but that the

children had good relationships with their stepsiblings. He had consulted with the local

school district and confirmed that it could accommodate his children’s educational and

developmental needs.

D. Claudia’s Testimony

Claudia testified that in May 2022, she and her husband were involved in a

domestic violence incident in which her husband punched her in the mouth, grabbed a

baseball bat, and threw the baseball bat at her “side.” She admitted that the incident

resulted in the issuance of an emergency restraining order and the filing of criminal

charges against her husband for inflicting physical injury on a spouse in violation of

Penal Code section 273.5 and assault with a deadly weapon in violation of Penal Code

section 245. However, Claudia testified that she had since been notified that the district

attorney did not intend to pursue the charges. When asked by the trial court whether she

was cooperating with the district attorney in pressing the charges, Claudia provided

6 inconsistent answers.3

Claudia conceded that she previously experienced “issues” in her current marriage

resulting in her husband moving out for a period of time in 2021. She also conceded that

the May 2022 incident was not the first time law enforcement had been called to her

home as the result of arguments with her husband. However, she opined that prior

incidents did not involve domestic abuse because her husband had “never hit” her and

was “never arrested.” Claudia acknowledged that her children had been present in the

home during past incidents of domestic violence, but she stated that her children were

never physically harmed and never directly witnessed any of the incidents. However,

when pressed, she also conceded that any domestic violence within a home can be a form

of abuse to the children, that her children witnessed the results of domestic violence in

her home, and that the children saw her bloodied face following the May 2022 incident.

Claudia admitted that she let her husband back into the family home about one

week after the May 2022 domestic violence incident, despite representing in her

declaration that she waited a period of months before letting her husband back into the

home. Claudia insisted that she only let her husband back into the home after “there

[were] rules set,” which included a prohibition against drinking alcohol in the home or

around the children. However, she also testified that she did not believe her husband ever

3 Specifically, the trial court asked: “Are you cooperating with pressing charges against [your husband]?” In response, Claudia initially answered: “No, . . . charges have never been up to the victim to either press or drop.” When asked a second time, Claudia responded, “Yes,” she was cooperating but conceded that, at the same time, she would like her husband back in her home.

7 had a problem abusing alcohol “up until” the May 2022 incident. Claudia testified that

her husband was now enrolled in a substance abuse treatment program, but she admitted

that he did not seek treatment until after Claudia learned of William’s intent to seek

modification of the custody order. She further opined that she did not actually believe

her husband needed such treatment and that he was only doing it in response to the

pending custody dispute.

Claudia conceded that she did not attempt to provide her children with any therapy

or counseling until months after the May 2022 incident, but she expressed her belief that

such measures would not be helpful because her children “have gone through so much

trauma” and simply needed to spend more time with their mother. Claudia further

conceded that there were times when her children would be at home alone with her

husband.

With respect to the request to move the children to Oregon, Claudia asserted that

her children were emotionally and verbally abused by William’s wife. In support, she

recounted various instances in which the children reported that William’s wife made

comments that the children found uncomfortable or insulting. However, Claudia

admitted she had no personal knowledge of any of these instances and had never raised

the issue with the court prior to the request for modification of child custody. Claudia

also testified that her children had extensive family support in California—including

maternal grandparents, maternal uncles and aunts, and 16 first cousins—and that her

children had “lifelong” school friends in California; but, she also acknowledged that her

children got along with their stepsiblings in Oregon.

8 Finally, Claudia was repeatedly asked about a phone conversation with one of her

children in July 2022. When asked about specific statements made during the

conversation, Claudia repeatedly stated that she could not “recall” any of them. A

recording of the phone conversation was introduced as impeachment evidence and

showed that Claudia repeatedly told her children they had been “kidnapped” by William

and repeatedly attempted to shame the children for expressing their desire to stay in

Oregon.

E. Ruling and Order

On April 19, 2023, the trial court made findings and issued its order regarding the

request for modification of custody. The trial court (1) found that William met his

burden to show a material change in circumstances that would justify revisiting the

existing custody order; (2) found that the best interest of the children warranted

modification of the existing custody order; and (3) modified the custody order to grant

William full physical custody of the children and permit the children to move their

residence to Oregon. With respect to the best interest of the children, the trial court made

specific factual findings that: (1) the children’s interest in stability and continuity of the

existing custody agreement weighed against granting modification; (2) the children’s

health, safety, and wellbeing weighed in favor of granting the modification; (3) Claudia’s

inability to put the children’s interests above her own individual interests weighed in

favor of granting the modification; and (4) all other relevant factors were neutral and did

9 not weigh in favor or against modification.4 Claudia appeals from the order.

III. DISCUSSION

A. General Legal Principles, Standard of Review, and Issues Presented

“Where . . . there is a final custody determination in place, a postjudgment request

to modify custody requires the moving party to demonstrate not just the best interest of

the child but changed circumstances. [Citation.] ‘Under the so-called changed

circumstance rule, a party seeking to modify a permanent custody order can do so only if

he or she demonstrates a significant change of circumstances justifying a modification.’ ”

(Johnston-Rossi v. Rossi (2023) 88 Cal.App.5th 1081, 1087; In re Marriage of Brown &

Yana (2006) 37 Cal.4th 947, 956.) Absent a showing of changed circumstances, the trial

court has no occasion to reconsider the existing custody order, regardless of whether

evidence might suggest modification would be in the best interest of the children. (In re

Marriage of C.D. & G.D. (2023) 95 Cal.App.5th 433, 436-438.)

If a change of circumstances is shown, the trial court then considers all relevant

factors in determining whether modification of the custody order will be in the best

interests of the children. (In re Marriage of McKean (2019) 41 Cal.App.5th 1083, 1089-

1090; In re Marriage of Brown & Yana, supra, 37 Cal.4th at p. 960 [“If the noncustodial

parent makes the required initial showing . . . , the court is then obligated to ‘perform the

4 When stating its reasons, the trial court specifically reviewed factors such as: the distance of the proposed move to Oregon; the minor children’s expressed preferences; the children’s relationship with both parents; the reasons for William’s move to Oregon; the potential impact of any move on the children’s relationship with either parent; the impact of the proposed move on the children’s health and educational needs; and the current custodial arrangement.

10 delicate and difficult task of determining whether a change in custody is in the best

interests’ of the child.”].) Generally, in making this best-interest determination, the trial

court should consider factors such as: (1) the health, safety, and welfare of the child;

(2) any history of abuse by one parent or any other person seeking custody; (3) the nature

and amount of contact with both parents; and (4) substance abuse by either parent.

(§ 3011; In re Marriage of Burgess (1996) 13 Cal.4th 25, 31-32.) However, the statutory

factors are nonexclusive, and the trial court “must look to all the circumstances bearing

on the best interest of the minor child.” (Burgess, at pp. 31-32.)

When a proposed modification involves moving the children’s residence out of

state, the trial court also considers factors such as “the child’s interest in stability and

continuity in the custodial arrangement; the distance of the move; the child’s age; the

child’s relationship with both parents; 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; the child’s wishes

if the child is mature enough for such an inquiry to be appropriate; the reasons for the

proposed move; and the extent to which the parents currently share custody.” (In re

Marriage of Brown & Yana, supra, 37 Cal.4th at pp. 960-961; In re Marriage of C.T. and

R.B. (2019) 33 Cal.App.5th 87, 106 [listing factors].)

“The Court of Appeal applies an abuse of discretion standard of review to the trial

court custody ruling.” (In re Marriage of C.T. & R.B., supra, 33 Cal.App.5th at p. 97.)

However, “[t]he abuse of discretion standard is not a unified standard; the deference it

calls for varies according to the aspect of a trial court’s ruling under review. The trial

11 court’s findings of fact are reviewed for substantial evidence, its conclusions of law are

reviewed de novo, and its application of the law to the facts is reversible only if arbitrary

and capricious.” (Haraguchi v. Superior Court (2008) 43 Cal.4th 706, 711-712; In re

Marriage of DeSouza (2020) 54 Cal.App.5th 25, 33 [same]; In re Marriage of Nakamoto

& Hsu (2022) 79 Cal.App.5th 457, 469 [same].)

In this case, Claudia generally asserts that the trial court abused its discretion in

modifying the existing custody order, but the precise nature of her claim is unclear from

the opening brief. Nevertheless, none of Claudia’s arguments suggest the trial court erred

by applying an incorrect legal standard, and our own review of the record shows that the

trial court applied the legal principles we have detailed above.5 Thus, we proceed to

analyze whether the trial court’s factual findings are supported by substantial evidence

and whether its application of the law to the facts was arbitrary or capricious. As we

explain, we find nothing in the record to suggest the trial court abused its discretion on

either of these grounds.

B. Substantial Evidence Supports the Trial Court’s Factual Findings

In her opening brief, Claudia argues that the trial court “erred in its assessment of

[her] response to the children’s trauma” and drew inferences that were “unwarranted and

not substantiated by the broader context of the situation” regarding her response to a

5 The trial court made a finding that William met his initial burden to show a material change in circumstances, warranting reconsideration of the existing custody order; made a separate finding that the best interests of the children supported modification of the order; and listed each of the relevant factors identified in the case law in conducting its best interest analysis.

12 pattern of domestic disputes; and she urges us to “reconsider the trial court’s

interpretation of [her] actions and decisions.” Claudia also suggests that the trial court’s

decision was erroneous in that it failed to adequately consider the health, safety, and

welfare of the children. We interpret these arguments as a challenge to the trial court’s

factual findings that the health, safety, and welfare of the children, as well as Claudia’s

inability to place her children’s interests above her own, were both factors that weighed

in favor of modification of the existing custody order.6 However, we conclude that

substantial evidence in the record supports the trial court’s factual findings on these

points.

Claudia conceded in her declaration and testimony that there was a domestic

violence incident in May 2022 that resulted in the issuance of an emergency restraining

order, the filing of criminal charges against her husband, and the initiation of an

investigation by the relevant child protective services agency. She admitted that the

6 The opening brief does not suggest that any other factual findings were erroneous. However, to the extent that Claudia intended to challenge other factual findings, we would conclude that she has failed to meet her burden on appeal to show error. On appeal, “ ‘we presume that the record contains evidence to sustain every finding of fact,’ ” and “ ‘[i]t is the appellant’s burden to demonstrate that it does not.’ ” (Ashby v. Ashby (2021) 68 Cal.App.5th 491, 512.) Thus, “ ‘ “ ‘[a] party who challenges the sufficiency of the evidence to support a particular finding must summarize the evidence on that point, favorable and unfavorable, and show how and why it is insufficient. [Citation.]’ [Citation.] . . . ‘He cannot shift this burden onto respondent, nor is a reviewing court required to undertake an independent examination of the record when appellant has shirked his responsibility in this respect.’ ” ’ ” (Ibid.; In re Marriage of Marshall (2018) 23 Cal.App.5th 477, 487.) Claudia’s opening brief makes no attempt to summarize any of the documentary or testimonial evidence presented to the trial court. Absent such a summary, she has not met her burden on appeal to show that any factual finding was unsupported by substantial evidence.

13 children witnessed the aftermath of this incident and witnessed her face “blood[ied],” and

she conceded that domestic violence within a home presented a risk of danger to children

in the home.7 Throughout her testimony, Claudia alluded to a pattern of recurring

domestic disputes with her husband, acknowledging that at one point the disputes were so

great that her husband moved out of the home for a period of time, and that the May 2022

incident was not the only time law enforcement had been called to her home. Finally,

Claudia conceded that she let her husband back into the home only a week after the

incident, and that her work schedule necessitated that the children spend periods of time

alone in the home with her husband. This was substantial evidence upon which the trial

court could rely to conclude that removing the children from Claudia’s home would

promote their health, safety, and welfare.

Additionally, Claudia conceded during her testimony that she never initiated steps

to seek therapy or counseling for her children, despite acknowledging that “they have

gone through so much trauma.” Both Claudia and William testified that she enrolled her

children in therapy only at the urging of William and, even then, Claudia would only

agree to family therapy sessions in which she was present. Claudia also testified that she

7 We observe that, even if Claudia had not conceded this point, the trial court would have been justified in drawing this inference. As is firmly recognized in case law: “[e]ven if a child suffers no physical harm due to domestic violence, a ‘cycle of violence between . . . parents constitute[s] a failure to protect [a child] “from the substantial risk of encountering the violence and suffering serious physical harm or illness from it.” ’ ” (In re V.L. (2020) 54 Cal.App.5th 147, 156; F.T. v. L.J. (2011) 194 Cal.App.4th 1, 28 [ Even when a statutory presumption involving domestic violence does not arise, domestic violence in the home is a relevant factor in determining whether “it is in [the child’s] best interests to grant [a] motion to move away with [the child] . . . or to change the established custody arrangement . . . .”].)

14 let her husband back into the family home only after setting strict rules regarding alcohol

consumption, but later asserted that her husband did not have a serious drinking problem,

and later admitted that her husband agreed to enroll in an alcohol abuse treatment

program only because of the pending child custody proceedings. Finally, the trial court

heard a recorded conversation between Claudia and her daughters in which Claudia

repeatedly spoke ill of William, accused William of “kidnapping” the children, and

attempted to shame her children for expressing any desire to stay in Oregon. This was

substantial evidence upon which the trial court could rely to reasonably conclude that

Claudia was unwilling to place her children’s interests above her individual interests.

While Claudia asserts that the trial court drew the wrong inferences from the

evidence before it,8 on review for substantial evidence, “ ‘the power of an appellate court

begins and ends with the determination as to whether, on the entire record, there is

substantial evidence, contradicted or uncontradicted, which will support the

determination, and when two or more inferences can reasonably be deduced from the

facts, a reviewing court is without power to substitute its deductions for those of the trial

court. . . [I]t is of no consequence that the trial court believing other evidence, or

drawing other reasonable inferences, might have reached a contrary conclusion.’ ” (In re

Marriage of Goodwin-Mitchell & Mitchell (2019) 40 Cal.App.5th 232, 239.) Thus, the

8 Specifically, Claudia contends that the trial court “erred in its assessment”, “mischaracteriz[ed]” and “misconstrue[ed]” the evidence regarding Mother’s actions as well as drew inferences that were “unwarranted . . . by the broader context of the situation” in a way that “overlooks the nuance[e]” of the situation, encouraging this court to “reconsider the trial court’s interpretation” of the evidence.

15 fact that the trial court could have drawn competing inferences from the evidence does

not establish a lack of substantial evidence warranting reversal.

C. The Trial Court’s Application of the Law to the Facts Was Not Arbitrary or

Capricious

Claudia also argues that the trial court’s decision “minimized the significance of

the stable and nurturing environment that [Claudia] had consistently provided” and

“disrupted the children’s established patterns of care and emotional bonds” in a manner

“contrary to the public policy that underscores the importance of continuity and stability

in custody arrangements.” We interpret these arguments as a challenge to the trial court’s

application of the law to the facts when deciding what weight to afford the relevant

factors. However, under the abuse of discretion standard, the trial court’s application of

the law to the facts warrants reversal only if arbitrary and capricious. (In re Marriage of

Nakamoto & Hsu, supra, 79 Cal.App.5th at p. 469; S.Y. v. Superior Court (2018)

29 Cal.App.5th 324, 333-334 [“even if we disagree with the trial court’s determination,

we uphold the determination so long as it is reasonable”].) As we explain, we cannot

conclude that the trial court’s determination in this case was arbitrary, capricious, or

unreasonable under the circumstances.

Here, the trial court found that two established factors weighed in favor of

granting William’s request for sole physical custody of the children including: (1) the

health, safety, and welfare of the children; and (2) Claudia’s unwillingness to put her

children’s interests above her individual interests. It found that the stability and

continuity of the current custody arrangement weighed against modification, and that the

16 remaining factors were neutral. Thus, in determining whether modification of the

custody order would serve the children’s best interest, the trial court was required to

weigh competing factors.

In this case, a greater number of factors weighed in favor of modification. But

more importantly, one of the factors that weighed in favor of modification was the health,

safety, and welfare of the children. As Claudia acknowledges on appeal, the health,

safety, and welfare of the children is statutorily recognized as the trial court’s “primary

concern in determining the best interests of children when making any orders regarding

the physical or legal custody . . . of children.” (§ 3020, subd. (a).) Thus, it was not

unreasonable for the trial court to consider this factor as having more weight than the

countervailing factor of stability and continuity when reaching its ultimate decision.

Where the primary factor of health, safety, and welfare weighed in favor of modification

and a greater number of factors weighed in favor of modification compared to the factors

that weighed against modification, we cannot conclude that the trial court exercised its

discretion in an arbitrary or capricious manner. Absent a showing that the trial court’s

weighing of factors was arbitrary, capricious, or exceeded the bounds of reason, Claudia

has not established that the trial court abused its discretion in its application of the law to

the facts.

17

IV. DISPOSITION

The order is affirmed. Respondent to recover costs on appeal.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

FIELDS

J.

We concur:

RAMIREZ

P. J.

CODRINGTON

J.

18