Filed 7/15/24 T.R.K. v. V.V. CA2/6

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION SIX

T.R.K.,

Petitioner and Appellant,

v.

V.V.,

Respondent.

2d Civ. No. B326455

(Super. Ct. No. 20FL-0151)

(San Luis Obispo County)

T.R.K. (father) appeals from the denial of his request to 

modify a visitation order concerning T.K., his minor daughter. 

V.V. (mother) had opposed the modification. On appeal, father 

raises a variety of contentions, including that the trial court 

abused its discretion in denying the request. Because the trial 

court applied the incorrect standard in evaluating father’s 

request to modify visitation, we will reverse and remand. 
2

FACTUAL AND PROCEDURAL BACKGROUND

Father and mother have a daughter T.K., born July 2018. 

After hearings in November 2020, Judge Ginger Garrett awarded 

temporary sole custody of T.K. to mother, subject to father’s Zoom 

and supervised in-person visits. Father did not participate in

those hearings despite being given notice. 

On June 2, 2021, the court held a trial to determine child 

custody, parenting time, and attorney’s fees and costs. Father 

did not appear. A log of visits between September 10, 2020, and 

March 16, 2021, showed that father missed or canceled over 50 

visits with T.K. during that period. Father had not contacted or 

visited T.K. since February 1, 2021. 

A custody evaluation by Dr. Suzanne Dupée concluded 

father had a significant substance abuse problem, coupled with 

mental health issues and criminal behavior. Father did not 

participate in the evaluation.

The court found applicable Family Code section 3044, 

which created a rebuttable presumption of sole custody for 

mother given father’s past instances of domestic violence against 

her. In November 2017, father punched mother in the eye. In 

December 2017, father put a gun to mother’s head and 

interrogated her about T.K.’s paternity. He fired a handgun in 

mother’s presence. The court concluded no evidence rebutted the 

section 3044 presumption and awarded sole legal and physical 

custody of T.K. to mother. 

The court ordered no visitation “unless and until [father] 

completes a psychological evaluation and files a petition for 

visitation with the Court showing changed circumstances.” The 

court noted father’s inconsistent presence in T.K.’s life could 

cause attachment, anxiety, and mood issues. It concluded: “The 
3

first step in assuming a parenting role is to provide an evaluation 

by a psychologist or psychiatrist as to [father’s] current level of 

mental health issues and substance abuse. The fact that [father] 

may suffer from mental health issues is not a reason to deny him 

visitation; his inconsistent behavior toward his daughter’s best 

interest is.” 

On June 17, 2021, the same day the judgment was entered, 

father filed a request to modify the visitation order and a motion 

for reconsideration. On July 16, 2021, he filed an amended 

request, adding requests for joint legal and physical custody and 

for changes to a domestic violence order. 

In September 2021, the case was reassigned to Judge 

Matthew Guerrero. In October 2021, father challenged Judge 

Guerrero pursuant to Code of Civil Procedure sections 170.6 and 

170.3. The Judicial Council assigned an independent judge to 

rule on the challenge. Finding no grounds for disqualification,

she denied it in an order filed on December 13, 2021. 

On December 15, 2021, the court, not finding a change in 

circumstances, denied father’s request for modification of custody 

and visitation. 

In May 2022, father filed a request to modify the visitation 

order, which he amended in August 2022. Father’s supporting 

declaration stated he had completed a 90-day inpatient treatment 

program. Attached was a letter from Ventura Recovery Center. 

It stated father successfully completed their 90-day substance 

abuse treatment program in April 2022, during which he was 

randomly drug tested three to four times a week, breathalyzed 

daily, and attended daily AA meetings. 

On September 22, 2022, the court denied without prejudice

father’s request to modify visitation. The court advised father 
4

that Judge Garrett’s June 2021 order gave him “the path to [his]

visitation.” The court indicated father needed to provide random 

drug testing. The court directed father to obtain psychological 

records from the treatment program he completed. The court 

also suggested father approach county mental health with a copy 

of the June 2021 order to obtain a psychiatric examination.

Prior to the hearing, father had provided a witness list 

including the professional supervisor, Donna Phalen, and an AA

sponsor, Robert Blume. The court declined to hear testimony 

from Phalen at the September 22, 2022 hearing; no one 

mentioned Blume. The court scheduled a December 15, 2022 

“review hearing” and told father he did not “have to bring in any 

witnesses.” Findings and orders were entered on November 15, 

2022. 

On December 2, 2022, father filed a declaration with 

exhibits, including negative drug tests, psychological records 

from Ventura Recovery Center, and documentation of enrollment 

with Ventura County Behavioral Health.1

At the review hearing on December 15, 2022, the court 

found father had “not met the criteria . . . Judge Garrett set out 

in order to make a change that would amount to a material 

change.” The court stated it had “not found a significant change 

in circumstances to warrant a custody change.” 

A formal order filed January 18, 2023, stated father “has 

not demonstrated a material change in circumstances warranting 

any change to the custody orders set forth in the Judgment filed 

1 To facilitate our review on the merits, we grant father’s 

motion to augment the record. (Cal. Rules of Court, rule 

8.155(a).)
5

June 17, 2021. His requests for modification to those orders are

denied.” Father appeals.2

DISCUSSION

Father contends that in denying his request to modify 

visitation, the court applied the wrong legal standard. We agree.3

We review modification of visitation orders for abuse of 

discretion. (See In re Marriage of Burgess (1996) 13 Cal.4th 25, 

32.) “The precise measure is whether the trial court could have 

reasonably concluded that the order in question advanced the 

‘best interest’ of the child. We are required to uphold the ruling if 

it is correct on any basis, regardless of whether such basis was 

actually invoked.” (Ibid.) We review the trial court’s factual 

findings for substantial evidence. (Johnston-Rossi v. Rossi (2023) 

88 Cal.App.5th 1081, 1087.) 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 [the] order.” (F.T. v. L.J. (2011) 194 

Cal.App.4th 1, 16.) The record must “affirmatively show[]” the 

trial court misunderstood its discretion. (Id. at p. 26.)

2 Although the notice of appeal states father is appealing 

orders entered on “11/25/23” and “1/19/23,” it appears father

refers to the orders dated November 15, 2022, and January 18, 

2023. Father’s appeal is timely only as to the January 2023 

order. (Cal. Rules of Court, rule 8.104(a).)

3 We decline mother’s invitation to dismiss the appeal 

under the disentitlement doctrine. (See In re A.G. (2012) 204 

Cal.App.4th 1390, 1399.) Father’s conduct does not warrant that 

response.
6

A party seeking to modify a permanent custody order must 

show “a significant change of circumstances . . . .” (Montenegro v.

Diaz (2001) 26 Cal.4th 249, 256.) This changed circumstances 

rule, however, does not apply when a party seeks only a visitation 

modification “not amounting to a change from joint custody to 

sole custody, or vice versa.” (In re Marriage of Lucio (2008) 161 

Cal.App.4th 1068, 1072.) Changes in visitation are instead

subject to the child’s best interest standard. (Id. at p. 1080.) 

“When determining the best interest of the child, relevant factors 

include the health, safety and welfare of the child, any history of 

abuse by one parent against the child or the other parent, and 

the nature and amount of contact with the parents.” 

(Montenegro, at p. 255; see also Fam. Code, § 3011.)

Given that father requested only a visitation change, the 

changed circumstances rule does not apply. The best interest 

standard governs. The court applied the wrong standard.

4 At the 

hearing, the court stated: “I have not found a significant change 

in circumstances to warrant a custody change.” In its formal 

order, the court similarly found father “has not demonstrated a 

material change in circumstances warranting any change to the 

custody orders.” However, father was not seeking a custody 

change. He requested modification of the visitation order to 

allow supervised and Zoom visitation. In light of the court’s 

express invocation of the incorrect standard, we are unable to 

presume it knew and properly applied the law. (Evid. Code, 

§ 664; cf. Ross v. Superior Court (1977) 19 Cal.3d 899, 913.)

We cannot conclude the error was harmless. During a long 

colloquy at the September 2022 hearing, the court complimented

4 At the September 2022 hearing, mother’s counsel also 

argued father needed to show changed circumstances. 
7

father on his demeanor, stating: “I really want to acknowledge 

the progress that I can see with you.” The court directed father 

to “bring and show us” records from his substance abuse 

treatment program and psychological treatment. It suggested 

father “go to your County Mental Health” with copies of the prior 

order to “see what they can do for you.” The court also instructed 

father to “bring . . . evidence of your testing, your random [drug]

testing.” 

Father substantially complied with these directives. He 

submitted: (1) records of a February 2022 psychiatric evaluation, 

with notes from a clinical session in April 2022; (2) documents 

evidencing enrollment in a substance abuse treatment program 

in October 2022, reflecting that he “is making excellent progress”; 

(3) proof of several negative drug tests taken in October and 

November 2022; and (4) a letter from Ventura County Behavioral 

Health confirming an appointment for a psychiatric evaluation on 

December 14, 2022. 

At the December 2022 hearing, the court provided an 

indicated ruling that father “has not met the criteria that Judge 

Garrett set out in order to make a change that would amount to a 

material change,” but added: “I do also recognize that [father is] 

making significant progress . . . but all the boxes aren’t checked.” 

After argument, the court adopted its indicated ruling, stating: “I 

have not found a significant change in circumstances to warrant 

a custody change,” once again adding that father “is making 

valiant efforts and moving – and attempting to make positive life 

changes.” Thus, there was no indication the court considered 

evidence of the factors relevant to the child’s best interest. 

Instead, it focused solely on whether father had complied with 

the judgment. 
8

On this record, we are unable to determine whether the 

court would have reached the same decision had it applied the 

correct standard—the best interest of the child. 

Because we will remand to allow the court to reconsider 

father’s request applying the best interest of the child standard,

we need not reach father’s remaining contentions. However, we 

note that his claims of insufficient notice of the June 2021 trial, 

judicial bias, and violations of the Americans with Disabilities 

Act (ADA) are all forfeited. He failed to appeal the 2021 order 

(Reyes v. Kruger (2020) 55 Cal.App.5th 58, 67), he never raised 

any ADA claim regarding the September or December 2022 

hearings (see In re M.S. (2009) 174 Cal.App.4th 1241, 1252), and 

denial of his judicial disqualification motion required a timely 

petition for writ of mandate (Code Civ. Proc., § 170.3, subd. (d)),

which he did not file. 

Finally, although the 2021 order provided for “no 

visitation” unless father “completes a psychological evaluation 

and files a petition for visitation . . . showing changed 

circumstances,” we reiterate that the standard for modification of 

visitation is not changed circumstances but the child’s best 

interest. On remand, the court should consider all relevant,

current circumstances—whether or not father has completed a 

psychological evaluation—when determining what orders will 

best serve T.K.’s interests.5 Judge Garrett’s 2021 delineation of 

5 Father argued he did not have the ability to pay for 

certain services, such as a psychological evaluation. If the court 

still believes the evaluation is necessary to determine whether 

supervised visitation would be in T.K.’s best interest, under 

Family Code section 3112, subdivision (a), the trial court must 

“inquire into the financial condition” of a parent and ascertain 

whether he or she is “able to pay” the expense of an investigation, 
9

what constitutes changed circumstances is not binding on any 

future judge who considers the case. (See Anne H. v. Michael B. 

(2016) 1 Cal.App.5th 488, 497 [prior judge’s “comment . . . not 

binding in any manner” on future judge].)

DISPOSITION

The postjudgment order denying father’s request for 

modification of the visitation order is reversed. The matter is 

remanded for the court to consider the request under the best 

interest of the child standard. The parties shall bear their own 

costs on this appeal. (Cal. Rules of Court, rule 8.278(a)(5).)

NOT TO BE PUBLISHED.

CODY, J.

We concur:

GILBERT, P.J.

BALTODANO, J.

report, or evaluation that is being undertaken by a courtappointed investigator or evaluator.
10

Matthew G. Guerrero, Judge

Ginger Garrett, Judge

Superior Court County of San Luis Obispo

____________________________________

T.R.K. (father), in propria persona, for Petitioner and 

Appellant.

Tardiff Law Offices, Neil Tardiff for Respondent V.V.

(mother).