Filed 10/17/23 M.R. v. M.P. CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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. 

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

M.R.,

Petitioner and Appellant,

v.

M.P.,

Respondent.

 D080247

 (Super. Ct. No. ED87165)

APPEAL from a judgment of the Superior Court of San Diego County, 

David M. Rubin, Judge. Affirmed as modified. 

M.R., in pro. per., for Petitioner and Appellant.

Cage & Miles and John T. Sylvester for Respondent. 

M.R. (Father) appeals from a family court order denying his request to 

move A.P.R., the child he shares with M.P. (Mother), to Sacramento. Father 

had been splitting time between Sacramento, where he is from and works, 

and San Diego, where A.P.R. lives and attends school. After weighing 

various factors, included those required under In re Marriage of LaMusga

(2004) 32 Cal.4th 1072, 1101 (LaMusga), the trial court denied Father’s 

request because it found that moving A.P.R. away from San Diego, the place 
2

of his “daily social network,” would be “disruptive” and not in his best 

interest. 

The trial court modified custody and visitation to: (1) adjust for 

Father’s move; (2) give Mother sole legal custody over medical decisions about 

A.P.R.’s short stature, a source of major conflict between the parents; and 

(3) order A.P.R. and his parents to enroll in individual therapy to address 

Father and Mother’s high-conflict parenting. The trial court denied Father’s 

motion for a new trial. 

Father argues that the trial court erred when issuing these orders. 

Mother contends that Father waived all rights to appellate review by failing 

to present evidence that supports the trial court’s findings and order. While 

true as to some points, we choose to address the merits of the appeal unless 

waived on other grounds. We affirm the judgment with one modification for 

the reasons explained below. 

On the move-away request, the trial court properly assumed Father 

would move to Sacramento and crafted a custody plan accordingly. Father’s 

challenge to the overall move-away analysis amounts to a disagreement over

the weight given to the evidence and LaMusga factors, which is the province 

of the trial court and not subject to reassessment on appeal. 

As for legal custody, we conclude that substantial evidence supports the 

findings and the order advances A.P.R.’s best interest. Father faults the trial 

court for relying on allegedly false and contradicted medical expert evidence, 

but contradicted evidence may support a judgment and we do not reassess 

witness credibility on appeal. For similar reasons, we conclude that the trial 

court properly denied Father’s motion for new trial based on related

additional evidence. 
3

Although the trial court made the findings required to order A.P.R. and 

his parents to attend individual counseling, the open-ended order exceeded 

the statutory time limit of one year. (§ 3190, subd. (a).) 

Lastly, we disagree with Father’s due process claims based on privacy 

violation and gender bias. Father waived his argument that the trial court 

violated his privacy and penalized him for asking Mother to get an abortion,

and failed to show how the trial court’s brief reference to this issue affected 

the judgment. As for gender bias, the non-waived examples Father cited are

not extreme facts that would rise to a due process violation. 

We therefore modify the judgment to limit the duration of the 

court-ordered therapy to one year and affirm the judgment as modified. 

I.

A.

Mother and Father dated briefly in Sacramento. After Mother moved 

back to San Diego, she learned she was pregnant. According to Mother, 

Father told her “several times” that he wanted her to terminate the 

pregnancy. But Father later expressed his desire and took steps to be “part 

of [A.P.R.]’s life.” Since A.P.R.’s birth, Father’s physical custody has 

increased to 50%, much spent in San Diego. 

In September 2021, when A.P.R. was nine years old, Father filed a 

request to move the child to Sacramento. Father practices law in 

Sacramento, and he has turned down work opportunities because of his 

frequent travel to San Diego. According to Father, A.P.R. would benefit from 

living in Sacramento because it “has far more extracurricular activity 

opportunities.” Mother opposed the move. The parties presented evidence at 

trial in late 2021. 
4

B.

Testimony at the move-away trial established that A.P.R. lives and 

attends school in San Diego. He generally spends one week at a time with 

each parent. His friends or relatives live near his Mother’s home. At school, 

A.P.R. has a “very good group of friends” and is “thriving.” He also enjoys a 

“close” relationship with his paternal family in Sacramento. 

Father and Mother, however, rarely see eye-to-eye on parenting 

decisions. 

C.

A.P.R.’s medical care is a source of “major conflict,” particularly related 

to his height and vaccinations. 

1.

When A.P.R. was six months old, pediatric genetics specialist Mark 

Nunes initially gave him a dual diagnosis of either hypochondroplasia or 

familial short stature. Hypochondroplasia—one of 180 known forms of 

skeletal dysplasia, or dwarfism—is a “mild” version with “no therapy or 

treatment or medical intervention” during childhood. Familial short stature 

is a “variation of normal” that would mean A.P.R. will be on the shorter side

because his mother, grandmother, and great-grandmother are 5’, 4’8”, and 

4’11”, respectively. 

The testing that A.P.R. underwent did not yield any positive indication 

of skeletal dysplasia. A.P.R., according to pediatric geneticist Billur 

Moghaddam and her review of A.P.R.’s records, has “not displayed a 

recognizable syndrome or skeletal dysplasia.” His genetic test for 

hypochondroplasia came back “negative.” Moghaddam typically recommends 

that children presented with short stature undergo a “standard workup” to 

test for certain enzyme deficiencies, thyroid hormones, kidney disease, and 
5

Celiac disease. A.P.R. completed the enzyme and thyroid tests, both of which 

“came back normal.” Although A.P.R. did not take the other two tests, to 

Moghaddam’s knowledge, he does not present with other symptoms 

associated with kidney function issues or Celiac disease. Moghaddam 

assessed A.P.R.’s bone age and found it “about two years behind his 

chronological age.” Delayed bone age can signal that A.P.R. is a “late 

bloomer” or might have a “subtle kidney disease or a number of skeletal 

dysplasias.” To Nunes, the bone age graph results “confirmed that there was 

no therapy or treatment that [A.P.R.] would benefit from.” 

Father and Mother disagree about whether to continue testing A.P.R.

for height-related issues. Father, on the one hand, wants to continue testing 

for other types of skeletal dysplasia. He relies on Moghaddam’s testimony 

that the “purpose” of obtaining a diagnosis is to learn about “any potential 

additional health issue” related to the condition and “hopefully avoid it.” 

Mother, on the other hand, sees no “medical necessity” to “continuing to run 

test after test” based on information from Nunes and pediatrician Theodore 

Ng. Based on A.P.R.’s growth velocity and short maternal line, Nunes now 

believes that he is “normal.” Because A.P.R. presents no indication of “any 

distress or any problems,” Ng thinks that testing falls within parental 

discretion. Neither he nor Nunes believe that further testing is necessary 

because it would not change A.P.R.’s current medical treatment. Father 

considers Mother’s approach “real casual towards potential medical issues.” 

2.

Vaccines present another conflict point. When A.P.R. was younger, 

Mother initially hesitated to get him a flu shot due to a mercury-based 

preservative in the vaccine. As she investigated, Mother sent Father a link 

to an article from an “anti-vaccine” website, which prompted Father to accuse 
6

her of “anti-vaccine beliefs.” Mother disputes this label and professes no 

issue with vaccines. Ng confirmed that A.P.R. is “fully vaccinated,” and he 

does not consider Mother an “anti-vaxxer.” 

D.

In addition, the parties’ disagreements have disrupted A.P.R.’s 

continuity of medical care and created uncertainty about his education. 

Father pays for A.P.R.’s health insurance and private school tuition. A.P.R.

had Kaiser health insurance from birth until 2019, when Father decided to 

cancel it, which required A.P.R. to change healthcare providers. For school, 

Mother feels “stuck between a rock and a hard place” because Father 

“threatens” to stop paying tuition “if he’s dissatisfied with something.” 

E.

After hearing the evidence and arguments, the trial court weighed the 

LaMusga and other factors, concluded it was not in A.P.R.’s best interest to 

move to Sacramento, and thus denied Father’s request. The trial court 

determined that most of A.P.R.’s “daily social network” is in San Diego and it 

would be “disruptive” to move him away from the place where he had lived 

most of his life. The trial court briefly noted Father’s early request that 

Mother terminate the pregnancy in the context of Mother’s “initial reluctance 

to share parenting time,” but found that issue “mostly resolved” by trial 

because “both parents will foster frequent contact with the other.” 

The trial court also issued a custody and visitation plan. Relevant 

here, it gave the parties joint physical custody. It largely maintained the 

parties’ current physical custody arrangement of one week on, one week off 

until Father moves. Once Father moves, A.P.R. will spend the bulk of his 

school holidays with Father in Sacramento. During the school year, Father 

will care for A.P.R. in San Diego 11 days a month. If Father cannot exercise 
7

his full 11-day visit, he may waive it with advance notice to Mother. If 

A.P.R.’s school transitions to remote learning, Father may spend that time 

with A.P.R. in Sacramento. 

Under the order, the parties share joint legal custody except for medical 

decisions about A.P.R.’s height. Mother received sole legal custody “for 

purposes of health and medical care decisions concerning [A.P.R.’s] short 

stature.” The trial court found that “genetic and other testing revealed

[A.P.R.] does not have dwarfism” and Father’s “continued focus on [A.P.R.’s]

short stature is not helpful” to the child. Regarding the flu vaccine dispute,

the trial court concluded that Mother’s “reluctance . . . did not reflect general 

hostility to vaccines nor medical science,” but rather a desire to know more as 

“a first-time mother.” It warned, however, that “[w]ere there to be another 

instance in which [Mother] chose to block a recommended vaccination[,] a 

court would likely need to revisit that finding.” 

In addition, the trial court ordered A.P.R., Father, and Mother to each 

attend individual therapy. While too young to reliably opine about where he 

wants to live, A.P.R. “is old enough to be aware that his parents do not get 

along.” That “tension” is negatively “impacting” him. Ng opined that A.P.R.

would “very much” benefit from mental health counseling given the 

“contentious” parenting situation. The trial court directed A.P.R.’s therapy to 

focus on “helping [A.P.R.] adjust to his emotional state and his parents’ high 

conflict parenting.” Father and Mother’s therapy would focus on “[h]igh 

conflict parenting; improving communication skills, and anything else the 

therapist deems relevant.” The trial court observed that the parents’ therapy 

“may give each an insight into better ways to talk to one another about 

[A.P.R.].” The order did not set an end date for A.P.R.’s therapy and 

committed Father and Mother to participate “until released by the therapist.” 
8

To pay for A.P.R.’s therapy, the trial court required Mother to select 

therapists covered by Father’s insurance and obligated the parties to evenly 

split any “costs not covered by insurance.” Elsewhere in the statement of 

decision, the trial court noted that Father pays “significant private school 

tuition” and is a “much higher income earner” than Mother. 

Finally, the trial court rescinded the Montenegro status of the custody 

orders, which would require a “significant change in circumstances” to modify 

(Montenegro v. Diaz (2001) 26 Cal.4th 249, 256 (Montenegro)), to give the 

parties and court “more flexibility in this dynamic situation.” 

F.

Even before receiving the final statement of decision, Father moved for 

a new trial. Relevant to this appeal, Father sought a new trial based on 

(1) additional evidence related to Nunes’ credibility, including a post-trial 

declaration from a non-party patient who accused Nunes of “making false 

accusations and being dishonest in the medical records”; and (2) “an aftervisit summary from [A.P.R.’s] current geneticist showing that genetic testing 

did not disprove the presence of a skeletal dysplasia.” The trial court denied 

the motion. 

Three months after filing his appellate reply brief, Father moved to 

augment the record with exhibits related to legal custody and Nunes’ 

credibility. Mother opposes the motion. 

II.

Father appeals multiple aspects of the trial court’s order. First, he 

argues that the trial court abused its discretion when it denied the 

move-away request because it (1) did not treat Father’s plan to relocate 

seriously and (2) improperly weighed and analyzed the move-away factors. 

Second, he disputes the decision to give Mother sole legal custody over 
9

medical decisions about A.P.R.’s height as (1) premised on a factually 

inaccurate finding; (2) based on false and misleading evidence from Nunes; 

and (3) not in A.P.R.’s best interest given Mother’s alleged anti-vaccination 

beliefs. Relatedly, Father appeals the denial of his motion for new trial based 

on evidence about legal custody and Nunes’ credibility. Third, Father objects 

to the court-ordered individual therapy as noncompliant with Family Code 

section 3190. Fourth, he accuses the trial court of violating due process by 

disregarding Father’s “constitutional rights to privacy” and displaying 

prejudicial gender bias in favor of Mother.

We address Mother’s waiver argument before turning to Father’s 

grounds for appeal. 

A.

Mother argues that Father waived his right to appellate review because 

he “fails to summarize both the favorable and unfavorable evidence” from 

most witnesses and “relies primarily on his own testimony to support his 

arguments.” 

An appellant challenging the sufficiency of the evidence must 

affirmatively demonstrate error. (Rayii v. Gatica (2013) 218 Cal.App.4th 

1402, 1408.) To do so here, Father must set forth all material facts and 

evidence, including facts and evidence damaging to his position. (Ibid.) 

When an opening brief states only evidence favorable to the appellant’s 

position and ignores evidence supporting the judgment or finding, we may 

treat any substantial evidence contention as waived and presume the record 

contains evidence to support the trial court’s factual findings. (In re Marriage 

of Fink (1979) 25 Cal.3d 877, 887.) 

While we agree with Father that he need not summarize evidence 

irrelevant to the issues on appeal, he must identify and address the evidence 
10

that supports the aspects of the judgment he challenges. For certain 

arguments, however, Father presents a one-sided view of the evidence, 

omitting any unfavorable evidence. Father’s challenge to the accuracy of the 

trial court’s findings and the resulting order giving Mother sole legal custody 

over health and medical care decisions about A.P.R.’s short stature is one

example. Although Father cites to the sections of the statement of decision

addressing this topic, he fails to cite any record evidence that supports the 

trial court’s findings, such as testimony about A.P.R.’s likely familial short 

stature and how his further testing is unlikely to change his medical 

treatment. Similarly, Father cites evidence about Mother’s purported 

“anti-vaccination beliefs” without acknowledging trial testimony to the 

contrary. 

Although the deficiencies in Father’s presentation of facts arguably 

justify waiver, we exercise our discretion to nonetheless address the merits of 

the appeal, except where, as noted below, other grounds justify waiver. (In re 

Marriage of Brooks (2019) 33 Cal.App.5th 576, 588.) As a result, we need not

address Father’s reply arguments about waiver. 

B.

Father challenges the move-away order on two main grounds. First, he 

argues that the trial court abused its discretion by not treating Father’s plan 

to relocate “seriously” and, consequently, not actually awarding joint physical 

custody. Second, he challenges the overall move-away analysis as “flawed.” 

We review custody and visitation orders under the deferential abuse of 

discretion test. (In re Marriage of Burgess (1996) 13 Cal.4th 25, 32 

(Burgess).) When, as here, parents share joint physical custody and one 

parent intends to move, the trial court decides what post-move custody 

arrangement serves the child’s best interest. (Id. at p. 40, fn. 12.) On appeal, 
11

we ask if the trial court could have “reasonably concluded” that the order 

“advanced the ‘best interest’ of the child.” (Id. at p. 32.) We must uphold the 

ruling if it is correct on “any basis,” even one not mentioned by the trial court. 

(Ibid.) 

On a move-away request, the trial court considers the following 

non-exhaustive list of factors: (1) the child’s interest in stability and 

continuity in the custodial arrangement; (2) the distance of the move; (3) the 

child’s age; (4) the child’s relationship with both parents; (5) the relationship 

between the parents, including their ability to communicate and cooperate 

effectively and their willingness to put the child’s interests above their own; 

(6) the child’s wishes, if mature enough; (7) the reasons for the proposed 

move; and (8) the extent to which the parents currently share custody. 

(LaMusga, supra, 32 Cal.4th at p. 1101.) “The weight to be accorded to such 

factors must be left to the court’s sound discretion.” (Id. at p. 1093.) 

1. 

Father’s first argument centers on the first LaMusga factor of the 

child’s interest in stability. The trial court found that this factor “weighs 

evenly”—not for or against allowing A.P.R. to move to Sacramento with 

Father—because the parents equally shared physical and legal custody and 

“[t]hat part of the child sharing arrangement will not be disturbed.” After 

Father moves, A.P.R. will spend certain school breaks and holidays in 

Sacramento. In addition, during the school year, the order permits Father to 

spend 11 days a month with A.P.R. in San Diego, an option he can waive with 

advance notice if he is unable to exercise some or all of that time. Father 

asserts that these optional 11 days in San Diego show that the trial court did 

not take his request to relocate seriously and did not in fact award joint 

physical custody. We disagree.
12

To start, the custody order reflects that the trial court accepted 

Father’s plan to relocate. The trial court “must treat the plan as a serious 

one” and decide custody issues on the assumption that the parent is moving. 

(F.T. v. L.J. (2011) 194 Cal.App.4th 1, 22.) Here, the trial court created a 

custody plan to cover the time both before and after Father moves to 

Sacramento expressly because it “ha[d] to assume the move away is going to 

occur.” That Father has the option to waive any portion of the 11-day visit he 

cannot exercise shows that the trial court expected Father to reside and work 

in Sacramento. The trial court reinforced that point when it allowed A.P.R. 

to spend those 11 days in Sacramento if his school transitioned to fully 

remote learning. Thus, contrary to Father’s assertion, this case is not like

F.T. v. L.J., where the trial court abused its discretion because it “assume[d]” 

the father would not move if it denied the request. (F.T. v. L.J., at p. 22.) 

Next, Father argues that the trial court’s order “appears to be contrary 

to law” because the “only way” to maintain joint physical custody is if Father 

uses his 11 days a month in San Diego. Even setting aside the fact that 

Father first raised this point in his reply brief, the point is arguably still 

waived because Father cites no legal authority that precludes a court from 

offering a relocating parent optional time with the child in the child’s home 

location. (See Badie v. Bank of America (1998) 67 Cal.App.4th 779, 784-785 

(Badie).) 

Even if we accept Father’s premise that the trial court erred by finding 

that the post-move arrangement would not disturb the parties’ equal share of 

time with A.P.R., Father does not show how that error affected the outcome. 

Regardless of how the trial court decided the move-away request, A.P.R.

would have to spend the school year in a city where one parent does not 

reside. The optional 11 days in the trial court’s order reflects an attempt to 
13

serve the child’s best interest in terms of spending significant time with each 

parent while recognizing the child’s need to spend the school year in one 

location, the relative proximity of Sacramento to San Diego, and the reality 

that remote working options could allow Father to spend some of his physical 

custody time in San Diego. We conclude that the trial court did not abuse its 

discretion on this basis. 

2. 

Second, Father claims that the trial court’s “overall move[-]away 

analysis was flawed.” Specifically, he challenges: (1) the finding that A.P.R.

is “equally bonded to both parents”; (2) how the trial court compared the 

parents’ history of animosity; (3) that the court considered moving A.P.R. to 

Sacramento would be disruptive; (4) the purported insufficient emphasis on 

A.P.R.’s lack of extracurricular activities in San Diego; (5) the analysis of the 

parents’ “tumultuous and unpredictable” communication and inability to put 

A.P.R.’s interests first; (6) the alleged failure to analyze grandparents who 

reside with A.P.R. in San Diego1; and (7) that the court “did not take 

Mother[’]s behavior for making false, serious allegations serious[ly] enough.” 

In essence, Father disagrees with how the trial court weighed the 

evidence and factors. But as the reviewing court, we do not reweigh the 

evidence or assess the credibility of witnesses. (Pope v. Babick (2014) 

1 Father does not offer any legal authority that requires the trial court to 

analyze grandparents residing with the child. Instead, he quotes an expert 

from LaMusga who testified about the risk that the mother’s relative might 

“ ‘foment the anger’ ” and contribute to the deterioration of the father’s 

relationship with the children. (LaMusga, supra, 32 Cal.4th at p. 1084.) 

Here, however, the trial court addressed any similar concern when it 

observed the “stress put on [A.P.R.]” by family members and friends 

“denigrating” the parents and thus ordered the parties to “not allow any 

others to make negative statements about the other parent, or that parent’s 

family or friends, in [A.P.R.]’s presence or hearing.” 
14

229 Cal.App.4th 1238, 1246 (Babick).) Nor can we weigh the factors 

differently than the trial court did in its sound discretion. (LaMusga, supra, 

32 Cal.4th at p. 1093 [“The Court of Appeal erred in substituting its 

judgment for that of the superior court.”].) However strongly Father 

disagrees, the trial court was entitled to adjudicate the facts as it saw 

appropriate based on its review of the evidence and observations of the 

witnesses’ testimony and demeanor, and we do not reweigh the evidence on 

appeal.

That the record may contain evidence supporting Father’s claims is 

irrelevant to our role on appeal, which is limited to assessing the sufficiency 

of the evidence supporting the judgment. (Babick, supra, at p. 1245.) Here, 

the trial court considered the appropriate factors and found that all were 

neutral or not applicable except for two. In the end, the trial court found that 

A.P.R. should remain in San Diego because most of his “daily social network

is here” and it would be “disruptive” to move A.P.R. away from the place 

where he had lived most of his life. The record supports these factual 

findings. A.P.R. lives and attends school in San Diego. Friends and relatives 

live nearby, and he is “thriving” at school, where he has a “very good group of 

friends.” Since A.P.R. started school in fall 2017, Father has spent

substantial time with him in San Diego. This evidence could reasonably lead 

the trial court to conclude that moving to Sacramento would disrupt A.P.R.’s

strong San-Diego-based routines and relationships. Father’s arguments to 

the contrary, many of which lack legal support, do not persuade us that the 

trial court abused its direction.

C.

Next, Father contends that the trial court abused its discretion when it 

awarded Mother sole legal custody for “health and medical care decisions 
15

concerning [A.P.R.’s] short stature.” Father’s appeal of the order denying his

motion for new trial centers on evidence related to this issue, so we address 

those arguments at the end of this section. 

Like physical custody, we review legal custody for abuse of discretion to 

see if the order advances the child’s best interest. (Burgess, supra, 13 Cal.4th 

at p. 32.) On appeal, we view the evidence in the light most favorable to the 

judgment. (Crawford v. Southern Pac. Co. (1935) 3 Cal.2d 427, 429 

(Crawford).) To that end, we draw all reasonable inferences in support of the 

trial court’s ruling and defer to its express or implied findings when 

supported by substantial evidence, even if contradicted by other evidence.

(Ibid.) 

1.

Father first challenges the sufficiency of the evidence for the trial 

court’s finding that “genetic and other testing revealed [A.P.R.] does not have 

dwarfism.” Father interprets this statement to mean the trial court found 

that A.P.R. tested negative for all types of dwarfism, also known as skeletal 

dysplasia. He is correct that no doctor said that A.P.R. tested negative for all 

180 known forms of skeletal dysplasia. But we can—and thus must—

reasonably infer that the trial court meant that the testing A.P.R. underwent 

did not indicate that he has skeletal dysplasia. In other words, A.P.R. has 

not tested positive for skeletal dysplasia. Substantial evidence supports this 

finding. A.P.R. tested negative for hypochondroplasia, the type of skeletal 

dysplasia that doctors first suspected he might have. A.P.R.’s other tests 

“came back normal,” and he does not present with other symptoms that 

might indicate kidney function issues or Celiac disease, two conditions he has 

not tested for. Thus, as the trial court found, the genetic and other testing 

A.P.R. underwent did not show he had skeletal dysplasia. 
16

2.

Father also faults the court for “trusting” Nunes over Moghaddam. 

Relatedly, Father contends that Nunes presented “false and misleading 

evidence” about A.P.R.’s medical condition. These arguments boil down to 

questioning Nunes’ credibility and the admissibility of his testimony, which 

we review for abuse of discretion. (In re Sims (2021) 67 Cal.App.5th 762, 

777.) Father originally pressed for independent review, but effectively 

conceded in his reply brief that the abuse of discretion test applies here. 

The trial court alone makes witness credibility determinations. (In re 

Sims, supra, 67 Cal.App.5th at p. 777.) “[W]e are precluded from reweighing 

credibility.” (Ibid.) Father questioned Nunes’ veracity before and during 

trial, which allowed the trial court to make an informed decision when 

considering his testimony. To the extent the trial court found Nunes credible 

and relied on his testimony, we will not disturb that assessment. 

“[A]ny substantial evidence, contradicted or uncontradicted,” warrants 

affirming the judgment. (Crawford, supra, 3 Cal.2d at p. 429, italics added.) 

As a result, it makes no difference that Moghaddam’s testimony “directly 

contradicted” some of Nunes’, as Father claims. The trial court found that 

Father’s “continued focus on [A.P.R.]’s short stature is not helpful to [A.P.R.]” 

and gave Mother sole legal custody for related medical decisions. Substantial 

evidence supports that conclusion. For example, neither Nunes nor Ng 

believed additional testing related to A.P.R.’s short stature was necessary 

because it would not change his medical treatment. Because A.P.R. presents 

no indication of “any distress or any problems,” Ng opined that the testing 

falls within parental discretion. Based on A.P.R.’s personal and familial 

medical history, Nunes testified that A.P.R. “is a normal child” with “nothing 

to test for.” Thus, even though Moghaddam (and Father) would prefer 
17

additional testing for different forms of skeletal dysplasia, other evidence 

supports the trial court’s decision to give Mother the right to decline such 

testing. Granting Mother the sole right to make those decisions resolves one 

of the “major conflict areas” between the parents. Doing so will hopefully 

reduce their “domestic battling,” which would advance A.P.R.’s best interest. 

3.

Finally, Father questions the trial court’s judgment because Mother 

has “advocated anti-vaccine beliefs” “in the past,” which Father implies 

makes her unfit to oversee A.P.R.’s medical care as it relates to height. He 

focuses on Mother’s initial hesitancy to give A.P.R. a flu shot due to concern 

about a mercury-based preservative in the vaccine. 

The trial court considered that evidence and concluded that Mother’s 

“reluctance with the flu vaccine did not reflect general hostility to vaccines 

nor medical science.” That finding, too, is supported by substantial evidence. 

Although at that time Mother sent Father a link to an article from an “antivaccine” website, at trial she disclaimed being a “non-vax[x]er” or having any 

problem with vaccines generally. Pediatrician Ng confirmed that A.P.R. is 

“fully vaccinated” and testified that he would not label Mother as an “antivaxxer.” Thus, the trial court could reasonably conclude that giving Mother 

sole legal custody on this issue would advance, not harm, A.P.R.’s best 

interest. 

The trial court’s custody order came with guardrails. The trial court 

cautioned that, “[w]ere there to be another instance in which [Mother] chose 

to block a recommended vaccination[,] a court would likely need to revisit 

that finding.” It also rescinded the Montenegro status of the custody orders to 

give the parties and court “more flexibility in this dynamic situation.” These 
18

actions reflect the “child-centered” nature of the court’s ruling, which was 

designed with A.P.R.’s best interests in mind. 

4.

Father appeals the denial of his motion for new trial based on 

additional evidence related to Nunes’ credibility and “an after-visit summary 

from [A.P.R.’s] current geneticist showing that genetic testing did not 

disprove the presence of a skeletal dysplasia.” We do not disturb a ruling on 

a motion for new trial “except on a manifest and unmistakable abuse of [the 

court’s] discretion.” (Develop-Amatic Engineering v. Republic Mortgage Co.

(1970) 12 Cal.App.3d 143, 151.) 

To start, Father waived this point because, despite citing the general 

law governing motions for new trial, he failed to explain “with reasoned 

argument” why the additional evidence warranted a new trial. (Badie, supra, 

67 Cal.App.4th at pp. 784-785.) 

Regardless, the cited evidence does not show the trial court

unmistakably abused its discretion when it denied a new trial. Because we 

agree that the record indicates that A.P.R. has not tested negative for all 

known forms of skeletal dysplasia and instead view the trial court’s 

statement to mean that A.P.R. has not tested positive for this condition, the 

after-visit summary does not undermine the ultimate findings or order. The 

only other new post-trial evidence that Father offered was a declaration from 

a patient with no connection to this case who accused Nunes of “making false 

accusations and being dishonest in the medical records.” That evidence goes 

to Nunes’ credibility. For the reasons discussed above, we do not reassess 

witness credibility on appeal. Therefore, the trial court did not abuse its 

discretion by denying the motion for new trial. 
19

In light of this conclusion, we deny Father’s opposed motion to augment 

the record with documents related to the legal custody issue and Nunes’ 

credibility, as substantial evidence already in the appellate record supports

the trial court’s findings and order on legal custody and any implied 

credibility finding about Nunes. 

* * *

Rather than demonstrating abuse, Father essentially disagrees with 

the trial court’s factual findings and determination of what served A.P.R.’s

best interest in terms of medical decisions about his short stature. On 

appeal, Father reargues facts favorable to his trial positions. We 

acknowledge Father’s strong beliefs stem from a desire to “know what’s going 

on” in case A.P.R. experiences any future health issues. But it is not our role 

to reweigh the evidence or decide witness credibility anew. (Babick, supra,

229 Cal.App.4th at p. 1246.) Substantial evidence supports the trial court’s 

findings and its order advances A.P.R.’s best interest, and thus we find no 

abuse of discretion. 

D. 

Turning to the court-ordered counseling, Father disputes that the trial 

court complied with Family Code section 3190. He argues that the trial court 

did not provide the reasons why it found the section 3190 criteria met and 

“failed to limit the therapy order to one year as is statutorily required.” We 

conclude that the trial court set forth the required findings in the statement 

of decision but its order exceeded section 3190’s time limit. 

The court may “require” parents and minor children to participate in 

mental health counseling. (Fam. Code, § 3190, subd. (a).) Before issuing 

such an order, the court must find and “set forth reasons why” it found that: 

(1) the dispute poses a “substantial danger” to the best interest of the child; 
20

(2) the counseling is in the best interest of the child; and (3) the financial 

burden created by court-ordered counseling does not “otherwise jeopardize” a 

party’s other financial obligations. (Id., subd. (d).) 

Although the trial court did not expressly invoke section 3190, its 

statement of decision contains the required findings. First, it found that the 

parents’ “domestic battling” imposes a substantial danger to A.P.R. because 

he “is old enough to be aware that his parents do not get along” and the 

tension is currently “impacting” him and “may have lasting consequences” on 

him. Second, the trial court found that counseling would best serve A.P.R.’s 

interests because it will focus on “helping [A.P.R.] adjust to his emotional 

state and his parents’ high conflict parenting” and his parents’ therapy “may 

give each an insight into better ways to talk to one another about [A.P.R.].” 

Third, the court’s findings implicitly include that the counseling’s financial 

obligation will not jeopardize the parents. The court noted that Father pays 

“significant private school tuition” and is a “much higher income earner” than 

Mother, so therapy is less likely to overburden him financially. The court 

ordered the parties to pay half of A.P.R.’s therapy costs “not covered by 

insurance,” but directed Mother to select in-network therapists for A.P.R.

ostensibly to keep the out-of-pocket costs down. By doing so, it fixed the cost 

and apportioned it between the parties, a point that Father concedes. 

(§ 3190, subd. (c).) Thus, the trial court made the section 3190 findings to 

support involuntary therapy. 

The trial court, however, exceeded the time limit set by section 3190. A 

court cannot require counseling to last “more than one year.” (§ 3190, 

subd. (a).) The Legislature imposed an automatically expiring time limit as a 

“procedural safeguard” to involuntary counseling. (In re Katherine M. (1994) 

27 Cal.App.4th 91, 99-100.) Here, the court did not set an end date for 
21

A.P.R.’s therapy and committed Father and Mother to participate “until 

released by the therapist.” An order that requires indefinite counseling 

“cannot stand.” (Id. at p. 100.) Accordingly, we modify the judgment in the 

disposition below to correct this error. 

E.

Lastly, Father accuses the trial court of violating due process by 

disregarding his “constitutional rights to privacy” and displaying prejudicial

gender bias in favor of Mother. We address each point in turn. 

First, Father claims that the trial court “penalized” him for purportedly 

asking Mother to abort her pregnancy. He does not explain how the passing

reference in the statement of decision to Mother’s testimony that Father 

suggested she “terminate” the pregnancy amounts to a state constitutional 

privacy violation. He therefore waives the point. (Badie, supra, 

67 Cal.App.4th at pp. 784-785.) Nor, if we consider the merits, does Father 

explain how any aspect of the trial court’s order hinged on that fact. The trial 

court mentioned it in the context of Mother’s “initial reluctance to share 

parenting time,” which it found “mostly resolved” by trial. Following trial, 

however, the court found that “both parents will foster frequent contact with 

the other.” Consequently, the reference to abortion does not appear to have 

affected the trial court’s move-away order. 

Second, Father asserts that the trial court “engaged in gender bias.” 

His due process claim of judicial bias is subject to an “exceptionally stringent 

standard,” reaching reversable error only when “ ‘extreme facts’ demonstrate 

a probability of actual bias.” (Schmidt v. Superior Court (2020) 

44 Cal.App.5th 570, 588-589 (Schmidt).) For example, in In re Marriage of 

Iverson (1992) 11 Cal.App.4th 1495, 1502 (Iverson), gender bias 

“contaminated” the balance of the case. The court relied on gendered 
22

stereotypes when it doubted the woman’s testimony that her husband 

proposed to her because she was a “lovely” “girl” with “nothing going for her 

except for her physical attractiveness,” and noted that a wealthy, less 

attractive man would not “buy the cow when you get the milk free.” (Id. at 

pp. 1498-1500.) 

Father does not identify similarly extreme instances of gender bias 

here. In his opening brief, he points to the trial court’s findings about: 

(1) Mother’s initial reluctance to share time with A.P.R. because Father 

asked her to terminate the pregnancy; (2) how Mother first hesitated about 

the flu shot, not out of “general hostility to vaccines,” but because she wanted 

to know more as “a first-time mother”; (3) continuity of A.P.R.’s medical 

insurance; and (4) Mother’s uncertainty about if and when Father may decide 

to stop paying A.P.R.’s “significant” private school tuition. We do not 

consider other examples first raised in reply and offered without explaining 

or providing legal authority as to why they show gender bias. (See Raceway 

Ford Cases (2016) 2 Cal.5th 161, 178; Badie, supra, 67 Cal.App.4th at 

pp. 784-785.) The findings we do consider reflect “[m]ere expressions of 

opinion” about the individuals in this case, “based on observation of the 

witnesses and evidence,” and “do not demonstrate judicial bias.” (Schmidt, 

supra, at p. 589.) Father—not the trial court—injects charged language to 

argue that these findings reflect a view of women generally and Mother 

specifically as “distraught,” “less intelligent,” “unable” to obtain medical care 

or “financially support herself,” and “not strong” enough to “control [her] 

emotions.” We do not see such an “outdated view of the female sex” in the 

parts of the record that Father cites or elsewhere in the record. 
23

III.

We modify the judgment to limit the duration of the parties’ and 

A.P.R.’s court-ordered therapy to one year. After issuance of the remittitur, 

neither the parties nor A.P.R. will be required to participate in therapy 

beyond one year absent a further order of the court. (See § 3190, subd. (e).) 

Nothing in this opinion shall preclude the parties from continuing to 

participate voluntarily in individual therapy or from jointly agreeing to 

voluntarily continue A.P.R.’s therapy or re-enroll him in therapy. 

We affirm the judgment as modified above. The parties shall bear their 

own costs on appeal. 

CASTILLO, J.

WE CONCUR:

HUFFMAN, Acting P. J.

BUCHANAN, J.