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Filed 2/16/16 Stovall v. Cox CA1/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for 

publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication

or ordered published for purposes of rule 8.1115. 

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION THREE

JEANNA STOVALL,

Plaintiff and Appellant,

v.

KIERAN A. COX,

Defendant and Respondent.

A144769

(Alameda County

Super. Ct. No. AF12639961)

Appellant Jeanna Stovall, appearing in propria persona, appeals from an order 

awarding her and respondent Kieran A. Cox joint physical and legal custody of their now 

four-year-old son and denying Stovall’s request to move to Illinois with the child. She 

contends the court abused its discretion in determining that the custody order was in the 

child’s best interest. Cox has not filed an appellate brief. We find no error and shall 

affirm the court’s order.

Factual and Procedural Background

In July 2012, Stovall filed a petition to establish that Cox was the father of her son. 

In January 2013, the court found that Cox is the child’s father and ordered supervised 

visitation. Thereafter, the court issued an order setting Cox’s child support at $1,577 per 

month and his share of the child care costs at $744 per month. In a prior opinion, this 

court found that the trial court had abused its discretion in calculating Cox’s income and 

remanded for recalculation. (Stovall v. Cox (Nov. 24, 2014, A140942) [nonpub. opn.].)

While the child support order was pending on appeal, the issues of custody, 

timeshare and Stovall’s request to move to Illinois were tried before the court. Following 
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six days of trial, the court issued a final custody order awarding Stovall and Cox joint 

physical and legal custody of their son and denying Stovall’s request to move 

permanently with the child to Illinois. The trial court concluded that shared custody of the 

child in California was in the child’s best interests. The court found that both parents had

a close relationship with their son and that “each parent has strengths and weaknesses and 

each parent has parenting traits that will benefit [the child].” The court also found that the 

child had extended family in both California and Illinois, but that his ties to his family in 

California, and his paternal grandmother in particular, were stronger.

Stovall filed a timely notice of appeal.1

Discussion

“California’s statutory scheme governing child custody and visitation 

determinations is set forth in the Family Code[2]. . . . Under this scheme, ‘the 

overarching concern is the best interest of the child.’ [Citation.] For purposes of an 

initial custody determination, section 3040, subdivision (b), affords the trial court and 

the family ‘ “the widest discretion to choose a parenting plan that is in the best 

interest of the child.” ’ [Citation.] When the parents are unable to agree on a custody 

arrangement, the court must determine the best interest of the child by setting the 

matter for an adversarial hearing and considering 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.” (In re Marriage of Brown & Yana (2006) 37 Cal.4th 947, 955-956.) On 

appeal, custody orders are reviewed for an abuse of discretion, and the trial court's 

factual findings are reviewed under the substantial evidence standard. (In re Marriage 

of Fajota (2014) 230 Cal.App.4th 1487, 1497.)

The record in this case provides ample support for the court’s factual findings 

and these findings, in turn, support the court’s exercise of discretion in ordering joint 

 

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Stovall’s request for judicial notice of a transcript of a hearing occurring after the filing 

of the notice of appeal and the findings and order entered following the hearing is denied. 

2 All statutory references are to the Family Code unless otherwise noted.
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custody of the child and requiring that the child remain in California. Stovall’s 

arguments to the contrary are not persuasive.

Stovall notes correctly that the trial court found that Cox had unreasonably and 

intentionally missed visits with his son “in order to prove a point in this ongoing legal 

battle.” The court cited testimony that Stovall had requested that the time of Cox’s 

visits be modified from 5:00 p.m. to 5:30 p.m. to accommodate her work schedule, but 

that Cox refused to cooperate and would arrive at 5:00 p.m. and leave prior to 5:30 

“knowing that [his son] was on his way . . . to visit him.” The court explained that this 

behavior “exemplifies a lack of flexibility, stubbornness . . .and rigidity that are 

contrary to the best interests of [the child].” The court also found, however, that 

Stovall had similarly engaged in behavior that demonstrated her “lack[] of empathy 

and most importantly did not put the interests of [her child] above her personal 

agenda.” The court cited, as an example, mother’s ungrounded refusal to allow the 

paternal grandmother to supervise a visit between the child and Cox on Father’s Day.

Stovall cites the trial court’s finding that Cox was responsible for frustrating her 

attempts to Skype with her son when the child was in California and she was in 

Illinois, but ignores the trial court’s finding that both parties shared the blame for the 

utter failure of visitation between Cox and his son when the child was in Illinois with 

Stovall. Ultimately, the court observed that “[n]otwithstanding the court’s belief that 

each party in this matter has the capacity to be a good, maybe even an excellent parent 

. . . , their inability to communicate as co-parents and their lack of ability and/or 

willingness to put [the child’s] interests above their individual interests is very 

disturbing to the court. Unfortunately, each party is on a vendetta to destroy the other 

party and this vendetta has taken priority in this matter and had had a direct impact on 

the well-being of [their son.]” Given what appears to be shared responsibility for the 

inability to co-parent, the court did not abuse its discretion in ordering joint custody. 

Stovall also faults the court for proceeding to trial without the benefit of an expert 

child custody evaluation. Under section 3111, subdivision (a), “In any contested 

proceeding involving child custody or visitation rights, the court may appoint a child 
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custody evaluator to conduct a child custody evaluation in cases where the court 

determines it is in the best interests of the child.” The child custody evaluation under 

section 3111 “is an expert investigation and analysis of the health, safety, welfare, and 

best interest of children.” (Cal. Rules of Court, rule 5.220(c)(3).) Among other things, it 

includes a meeting with each child and observations of parent-child interaction. (See Cal. 

Rules of Court, rule 5.220(d)(2)(C) & (e)(2)(B).) Although a family court may appoint a 

child custody evaluator, there is no authority requiring it to do so. (Harris v. Harris

(1960) 186 Cal.App.2d 788, 801.)

In this case, an expert was designated by the court in June 2013 to conduct a 

custody evaluation and evaluate the move-away issue. In September 2013, an order was 

entered directing Cox’s attorney to contact the expert and arrange for the evaluation 

before a hearing set for December 6. On December 6, 2013, the evaluation had not been 

conducted and the court set a hearing for March 31, 2014, to review the custody 

evaluation. The court also set a trial date for June 2, 2014. As of March 7, the custody 

evaluation still had not been completed. The parties were advised that the trial would take 

place as scheduled with or without the custody evaluation.3The trial court noted in its 

statement of decision that it “did not have the benefit of receiving evidence from the 

court appointed child custody evaluator . . . which hopefully would have provided more 

evidence to this court about the bond between [the child] and each of his parents and 

 

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Stovall’s suggestion that the court did not warn the parties they would proceed without 

an evaluation and to the contrary, stated that he “could not try [the] case without a 

custody evaluation” is based on a complete distortion of the transcript. While the trial 

judge did express his frustration that the custody evaluation had not been started and 

stated, “We’re not going to have a trial in June if we don’t have a custody evaluation,” he 

also stated, “All I’m saying, we could have a trial without a custody evaluation, more 

than happy to have that. Do you want to do that? Come in June, put on your evidence, 

and I’ll make the call.” In any event, at the conclusion of the hearing, after lengthy 

arguments, the court clearly advised the parents that he was “hoping this evaluation gets 

done because we’re going to go to trial in June, with or without it. This is a case that 

needs to get resolved.” He then reiterated, “I’m maintaining my order that Dr. Roberto is 

the evaluator in this case. But I’m going to make it clear this case goes to trial in June, 

with or without the custody evaluation.”
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more evidence as to the special relationship that [the child] may have enjoyed with each 

of his parents.” 

Stovall was given more than adequate time to arrange for the custody evaluation 

prior to trial, but failed to do so. Although Cox undoubtedly shared responsibility for that 

failure, Stovall was responsible for marshalling her evidence and could have had her 

relationship with her son evaluated separate and apart from Cox. Moreover, it is unclear 

how the absence of the evaluation harmed Stovall. Although the court acknowledged that 

it received “limited evidence as to the relationships between [the child] and his mother” 

and that Stovall “was somewhat aloof in describing [her son] and very short on details 

and focus in describing her relationship with him,” she was still awarded 50 percent

custody. A glowing evaluation of her relationship with her child would not likely have 

altered the custody arrangement, considering the court also found that Cox has a strong 

bond with his son. Under these circumstances, the court did not abuse its discretion in 

proceeding to trial without an expert’s opinion. 

Next, Stovall contends the order must be reversed because Cox’s custody of the 

child was not lawfully acquired. (See Burchard v. Garay (1986) 42 Cal.3d 531, 536

[“[I]n view of the child’s interest in stable custodial and emotional ties, custody lawfully 

acquired and maintained for a significant period will have the effect of compelling the 

noncustodial parent to assume the burden of persuading the trier of fact that a change [in 

custody] is in the child's best interests.”].) She argues, “Here there is evidence to support 

that the trial court judge made a hasty order allowing [Cox] to go to Illinois and take the 

child out of [Stovall’s] custody for a period of 45 days, without speaking to [Stovall]. 

This was all done because [Cox] informed the trial court that [Stovall] had kidnapped his 

son and in essence fled to Illinois. However, none of that was true.” She suggests that the 

court “used this ‘stolen’ time as a part of the time he considered during the issuance of 

his tentative decision that showed the bond between the child and his father.” Again, 

Stovall’s argument is based on a distortion of the record. The true facts are as follows: 

On September 12, 2013, Stovall was given permission by the court to move 

temporarily to Illinois. Cox was provided visitation one weekend a month in California 
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and as frequently as possible in Illinois. On April 3, 2014, after months of failed attempts 

at visits between Cox and his son in California and the court’s increasing frustration with 

the parents, the court issued an order clearly setting out the terms of visitation, including 

who should pay for which plane tickets. On April 17, after the scheduled visitation did 

not occur as result of another disagreement between the parents, Cox filed an ex parte 

application seeking primary physical custody of the child. On April 25, the court issued 

an order modifying custody and visitation. The court awarded Cox temporary physical 

custody of the child pending the hearing scheduled for May 20. On May 8, Cox 

apparently went to Illinois and took the child back to California. At the hearing on May 

20, the court explained that temporary physical custody was transferred to the father

because of the complete breakdown in visitation. The judge explained that with only 12 

days until the start of the trial, he wanted the child to stay in California. Mother was 

welcome to visit in California as frequently as possible. Nowhere in the record did the 

court suggest that its order was based on Stovall’s alleged kidnapping of the child and it

does not appear that the court was operating under such impression.

Stovall also contends the court erred in finding that Cox had overcome the 

presumption against joint custody for perpetrators of domestic violence. Section 3044, 

subdivision (a) provides, “Upon a finding by the court that a party seeking custody of a 

child has perpetrated domestic violence against the other party seeking custody of the 

child or against the child or the child’s siblings within the previous five years, there is a 

rebuttable presumption that an award of sole or joint physical or legal custody of a child 

to a person who has perpetrated domestic violence is detrimental to the best interest of 

the child, pursuant to Section 3011. This presumption may only be rebutted by a 

preponderance of the evidence.” In determining whether the presumption set forth in 

subdivision (a) has been overcome, the court shall consider, among other factors, 

“Whether the perpetrator of domestic violence has demonstrated that giving sole or joint 

physical or legal custody of a child to the perpetrator is in the best interest of the child.” 

(§ 3044, subd. (b)(1).)
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Here, the court found that a restraining order had been entered against Cox so that 

the section 3011 presumption applies, but that Cox had rebutted the presumption based

on evidence that joint custody was in the child’s best interest. The court explained that 

Cox “was a very active parent since the birth . . . having daily parenting responsibilities 

. . . up until the domestic violence incident,” he and his son enjoy a “very strong and 

close bond” and that the child “will suffer emotional harm if he and [Cox] do not have 

significant custodial time with each other.” The court described Cox as “a competent, 

loving and caring caretaker” who has “parental qualities that benefit” his son. The court 

also found that Cox had completed a 52-hour domestic violence class and a parenting 

class. We find no abuse of discretion in the trial court’s finding that Cox had rebutted the 

section 3011 presumption. 

Disposition

The order is affirmed. 

_________________________

Pollak, J.

We concur:

_________________________

McGuiness, P. J.

_________________________

Jenkins, J.