1 Filed 3/19/14 In re A.H. CA4/2 NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 APPELL ATE 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 so le 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 h earing. We affirm the judgment.2 PROCEDURAL HISTORY In September 2005, the family court orde red Mother and Father to have “joint legal and physical child custody.” On Marc h 20, 2007, the family court ordered Father to have sole legal and physical custody of A.H. 1 On January 25, 2012, th e family court held a h earing concerning Mother’s request to modify the child custody and vi sitation orders. At the hearing, Mother explained, “I still have 50 percent legal cust ody, and I still have the primary residence.” Mother said, “So there n eeds to be a trial here because I’v e 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 fam ily court held a hearing to settle a dispute regarding the rulings at the January 25 he aring. The court said, “What we’re here [for] today is to decide and determine what was actually or dered by this Court on January 25th.” Mother again asserted that Fa ther 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 physi cal 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.”

1 We take judicial notice of the “Findi ngs and Order After Hearing” filed in the Riverside County Superior Court on March 20, 2007, in case No. TED006074. (Evid. Code, § 452, subd. (d).)3 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 eviden tiary 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 th e 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 le gal custody but also that the modification was in the child[’s] best in terests. [Citation.]” ( Id. at p. 114.) In su m, there needs to be an evidentiary hearing before a court modifies a legal custody order. In the instant case, Father was given so le legal custody of A.H. on March 20, 2007. Therefore, when the court ordered Fath er 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
2007.4 Additionally, it appears Mother’s argumen t at the family court was based upon the mistaken idea that sole le gal custody had never been awar ded to Father. Mother was not asserting changed circumstances requi red modifying the legal custody order. Rather, Mother was asserting the court ha phazardly 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 conduc t 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 di d not change the legal custody order, and (2) Mother did not raise a changed circumst ances argument, there was no need for the family court to conduct an ev identiary hearing. Accordingl y, we conclude the family court did not err. After this court took judicial notice of the 2007 Findings and Order After Hearing, Mother provided supp lemental briefing. In the supplemental briefing, Mother asserts the March 2007 Findi ngs and Order After Hearing was prepared by Father’s counsel and the legal custody aspect of th e document does not accurately reflect the family court’s 2007 orders, i.e., the reporte r’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 He aring until it was read aloud at a 2012 hearing. The Findings and Order After Hearing bears a Ma rch 20, 2007, file st amp 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)5 [60 days to file a notice of appeal].) In su m, the time for Mother to appeal any alleged errors in the 2007 order has passed. Therefor e, we conclude the fa mily court correctly elected to not conduct an ev identiary hear ing in 2012. DISPOSITION The judgment is affirmed. The partie s are to bear their own costs on appeal.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS

MILLER J.

We concur:

RAMIREZ P. J.

RICHLI J.