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Filed 3/19/14 In re A.H. CA4/2 

NOT TO BE PUBLISHED IN OFFICIAL REPORTS 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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT 

DIVISION TWO 

J.M., 

 Plaintiff and Respondent, 

v. 

L.H., 

 Defendant and Appellant. 

 E055783 

 (Super.Ct.No. TED006074) 

 OPINION 

 APPEAL from the Superior Court of Riverside County. Bradley O. Snell, 

Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.) Affirmed. 

 L.H., in pro. per., for Defendant and Appellant. 

 No appearance for Plaintiff and Respondent. 

 L.H. (Mother) and J.M. (Father) share a daughter, A.H. In March 2012, the 

family court ordered, “Father shall have sole legal custody of the child.” Mother 

contends the family court erred by ordering Father to have sole legal custody of A.H. 

without conducting an evidentiary hearing. We affirm the judgment. 
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PROCEDURAL HISTORY 

 In September 2005, the family court ordered Mother and Father to have “joint 

legal and physical child custody.” On March 20, 2007, the family court ordered Father 

to have sole legal and physical custody of A.H.1

 On January 25, 2012, the family court held a hearing concerning Mother’s 

request to modify the child custody and visitation orders. At the hearing, Mother 

explained, “I still have 50 percent legal custody, and I still have the primary residence.” 

Mother said, “So there needs to be a trial here because I’ve been trying to tell the courts 

for five years that there is a problem here and something has gone wrong.” The family 

court concluded, “The father does have sole physical and legal custody for the child.” 

On March 15, 2012, the family court held a hearing to settle a dispute regarding 

the rulings at the January 25 hearing. The court said, “What we’re here [for] today is to 

decide and determine what was actually ordered by this Court on January 25th.” 

Mother again asserted that Father was never given sole legal custody of A.H., so there 

needed to be a hearing regarding legal custody. In figuring out the specifics of the order 

adopted on January 25, the family court said, “And I’m writing in father shall have 

primary custody.” Father’s attorney said, “Okay. Your Honor, if you look at Section 

2A, it says ‘The parents shall have joint physical custody. At the last hearing, this Court 

indicated ‘I find the father has sole legal and sole physical custody.’ So I would just 

request that you put that in the mediation recommendation.” 

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 We take judicial notice of the “Findings and Order After Hearing” filed in the 

Riverside County Superior Court on March 20, 2007, in case No. TED006074. (Evid. 

Code, § 452, subd. (d).) 
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The court responded, “And that is what the Court had previously ordered.” 

Mother asked, “So he just gets full custody and legal custody just based on that? There 

was never a hearing for him to have that. It just automatically goes to him?” The court 

responded, “That is what the Court has ordered, ma’am.” 

DISCUSSION 

 Mother contends the family court erred by awarding Father full legal custody of 

A.H. without conducting an evidentiary hearing. We disagree. 

 In order to change a legal custody order, there must be “‘a persuasive showing of 

changed circumstances affecting the child.’” (In re Marriage of McLoren (1988) 202 

Cal.App.3d 108, 112, citing In re Marriage of Carney (1979) 24 Cal.3d 725, 730.) The 

family court must also consider the best interests of the child. (Id. at p. 113.) So, the 

person advocating for the change in legal custody has “the obligation of producing 

evidence and, based on that evidence, of persuading the court not only that 

circumstances now warrant[] granting her legal custody but also that the modification 

was in the child[’s] best interests. [Citation.]” (Id. at p. 114.) In sum, there needs to be 

an evidentiary hearing before a court modifies a legal custody order. 

 In the instant case, Father was given sole legal custody of A.H. on March 20, 

2007. Therefore, when the court ordered Father to have sole legal custody of A.H. at 

the January 25, 2012, hearing, the court was not changing or modifying the legal 

custody order. The court continued the same order that had been in place since March 

2007. 
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Additionally, it appears Mother’s argument at the family court was based upon 

the mistaken idea that sole legal custody had never been awarded to Father. Mother was 

not asserting changed circumstances required modifying the legal custody order. 

Rather, Mother was asserting the court haphazardly changed A.H.’s custody status 

without a hearing. Since Mother was not alleging changed circumstances, there was no 

need for the family court to conduct an evidentiary hearing. (See In re Marriage of 

Dunn-Kato & Dunn (2002) 103 Cal.App.4th 345, 348 [evidentiary hearings require 

evidence of changed circumstances].) 

In sum, since (1) the family court did not change the legal custody order, and 

(2) Mother did not raise a changed circumstances argument, there was no need for the 

family court to conduct an evidentiary hearing. Accordingly, we conclude the family 

court did not err. 

After this court took judicial notice of the 2007 Findings and Order After 

Hearing, Mother provided supplemental briefing. In the supplemental briefing, Mother 

asserts the March 2007 Findings and Order After Hearing was prepared by Father’s 

counsel and the legal custody aspect of the document does not accurately reflect the 

family court’s 2007 orders, i.e., the reporter’s transcript does not reflect Father was 

awarded full legal custody. Mother contends she did not learn about the erroneous 2007 

Findings and Order After Hearing until it was read aloud at a 2012 hearing. The 

Findings and Order After Hearing bears a March 20, 2007, file stamp from the family 

court. Accordingly, if Mother wanted to raise issues relating to the Findings and Order 

After Hearing, then she needed to do so in 2007. (See Cal. Rules of Court, rule 8.406(a) 
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[60 days to file a notice of appeal].) In sum, the time for Mother to appeal any alleged 

errors in the 2007 order has passed. Therefore, we conclude the family court correctly 

elected to not conduct an evidentiary hearing in 2012. 

DISPOSITION 

 The judgment is affirmed. The parties are to bear their own costs on appeal. 

 NOT TO BE PUBLISHED IN OFFICIAL REPORTS 

MILLER 

J. 

We concur: 

RAMIREZ 

 P. J. 

RICHLI 

 J.