Filed 7/29/14 Certified for publication 8/6/14 (order attached)

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION ONE

J.M.,

Plaintiff and Appellant,

v.

G.H.,

Defendant and Respondent.

 B242123

 (Los Angeles County

 Super. Ct. No. BF037073)

APPEAL from a judgment of the Superior Court of Los Angeles County, 

Robert A. Schnider, Judge. Affirmed.

Cuneo & Hoover, Sarah J. Hoover; Law Offices of Robert S. Gerstein and 

Robert S. Gerstein for Plaintiff and Appellant.

Honey Kessler Amado and Kristin L. Smith for Defendant and Respondent.

___________________________
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J.M. appeals from a judgment on reserved issues granting joint physical custody of 

his son Joey to J.M. and G.H., Joey’s mother, and allowing her to take Joey with her to 

live in Israel during the school year. Finding no abuse of discretion, we affirm.

BACKGROUND

We use the parties’ first names to simplify and humanize our opinion in this 

intensely contested custody case. (In re Marriage of Smith (1990) 225 Cal.App.3d 469, 

475, fn. 1.)

J.M. (Jonathan) and G.H., an Israeli citizen, met in 1996 and soon were living 

together. They never married. When G. gave birth to Joey in September 2005, Jonathan 

signed a voluntary declaration of paternity and the birth certificate. The couple separated 

in late 2007, when Joey was two, and Jonathan moved into another house in the summer 

of 2008, while G. and Joey were in Israel visiting G.’s family. In July 2008 Jonathan 

married Michelle H., and lives with her and her son, his stepson Ryan. Before Michelle 

H., Jonathan had been married to three other women, and Jonathan has three adult

children from two of those earlier marriages.

In July 2009, when Joey was nearly four, Jonathan filed a petition to establish his 

paternity of Joey, requesting joint legal and physical custody and reasonable visitation. 

In October 2009, he filed an order to show cause requesting sole legal custody and shared 

physical custody (with primary custody to him), after G. and Joey returned from a 

summer 2009 trip to Israel three weeks after the agreed-upon date of September 3, 2009. 

In response, G. requested sole legal and physical custody of Joey, with the right to move 

to Israel with Joey, and reasonable visitation for Jonathan in the United States and Israel. 

She represented that her visa to remain in the United States was set to expire in 

November 2010.

After hearing in March 2010, the trial court granted the paternity petition as to 

status only, reserving all other issues. The parties agree that a June 2010 interim order 

divided physical custody equally. Appellant’s appendix (Jonathan’s) contains an 

unsigned (and explicitly temporary) custody order proposed by G. In June 2011, the 
3

parties stipulated to the appointment of a privately compensated temporary judge for all 

purposes.

On March 2, 2012, after 12 days of trial, the trial court issued a 29-page amended 

statement of decision on the bifurcated issues, making factual findings, awarding 

Jonathan and G. joint legal and physical custody of Joey, and allowing G. to relocate to 

Israel with Joey during the school year. Joey was to live with Jonathan during most of 

the summer and longer school holidays, as well as during visits in Israel.

The court acknowledged that Jonathan and G. shared custody equally, both were 

competent parents, and Joey was well bonded to both. Two parents living in the same 

location would be ideal for Joey, but as G. had indicated her intent to relocate, the 

standard was Joey’s best interest under those circumstances. “[S]o long as the court does 

not find that the party intending to move is moving in bad faith, instead of assessing what 

would be the very best circumstances for the child, the court must determine how the 

child’s interest will best be served by that living arrangement which causes him the least 

detriment after one parent moves away.” Based on the evidence, including an expert 

child custody evaluation by Dr. Anthony Aloia and the testimony at trial, both Jonathan 

and G. were “fully adequate to care for [Joey’s] organizational, educational[,] social, 

emotional, physical and moral needs,” so “the tipping factor becomes comparing the level 

of detriment the child will suffer under each scenario.”

Gal had returned late from Israel with Joey after the summer of 2009 because G.’s 

father was diagnosed with cancer, and she wished to stay with her family until tests were 

completed. While the court found this “entirely reasonable,” it noted that G. could also

have accommodated Jonathan’s offer to fly to Israel and bring Joey back. G. showed “a 

sense of ownership of the child on her part and her determination to do things the way 

she chose rather than acting more cooperatively.” Nevertheless, this did not damage 

Joey. Further, there was no showing that G. would not comply with future orders, as she 

did return with Joey after her family obligations were met and allowed Jonathan 

immediate time with Joey, and had always returned with the child each time they had 

traveled to Israel.
4

The court also found that as soon as the parties separated in late 2007, G. 

expressed her desire to return to Israel and her family to raise Joey. Still, Jonathan paid 

for a lawyer to help G. get a green card and permanent resident status in the United 

States. When the support she received from Jonathan fell below what she considered 

adequate, she decided to return to Israel and stopped her efforts. G.’s current

immigration status requires her to leave the United States when the custody case is 

concluded.

The court found that G. was not negligent in abandoning her immigration claim, 

because “the claim itself was probably based on false contentions.” G. admitted that she 

had falsely stated that she attended Tel Aviv University and had been a captain in the 

Israeli army (although she did serve). As her qualifying work was with one of Jonathan’s 

companies, he would be in a position to disclose the misrepresentations, and would use 

that power to control her. G. simply did not wish to remain in the United States as a 

permanent resident, and had good faith reasons to relocate to a country where she could 

obtain employment independent of Jonathan, be near her family for emotional and 

financial support, and find a better environment to raise Joey.

The court found a variety of events (including the false statements on the visa 

application) showed G.’s “situational ethics and [that she] will deviate from truth if it is 

in her interest.” G. had taken prizes that she had not won at a charity picnic, and 

encouraged Joey to say he was six to get on a ride at Legoland when he was a few 

months shy of that age. None of these events, however, was directly related to her 

parenting. Joey, who had been primarily raised by G., had been troubled by lying about 

his age, which showed that he had internalized a positive value system.

An earlier order had required G. and Jonathan to use a website 

(Ourfamilywizard.com) to communicate about Joey. While G. used the website less than 

Jonathan and often did not respond to his frequent and detailed emails, the court found 

“generally credible that the email system was simply too difficult for her in the way it 

was established,” given her dyslexia and ADHD (established by an expert’s declaration). 

Although G. smoked, there was no evidence that she did so in the presence of the child. 
5

The parties’ tendency to “engage in mutual verbal combat” was not inflicted on or shared 

with Joey. G.’s and Michelle’s mutual animosity showed no alienation of Joey or 

attempts to interfere with each other’s relationship with him.

Jonathan also intended to move away from his house in Beverly Hills (to Santa 

Barbara, La Jolla, or Carmel), which diminished his ability to provide stability in physical 

surroundings. Whichever parent Joey lived with, Joey would experience a new home, 

school, and friends. A move to Israel would reduce his time with his stepbrother Ryan, 

and the court weighed that detriment against the greater detriment if he were not 

permitted to relocate to Israel with his mother.

The court found no evidence that G. had mental health or disability issues causing 

harm to Joey. As to the parties’ considerable attempts to raise issues regarding each 

other’s character, Dr. Aloia had testified that Joey was “an exceptional child,” and as 

Joey had spent more time with G., whatever character defects she might have did not 

produce a negative effect. Dr. Aloia had testified that she was a “good competent and 

acceptable parent.” While G. alleged misbehavior by Jonathan in his interactions with 

her, no evidence showed that he behaved inappropriately with Joey, and Jonathan was 

equally acceptable as a parent.

Neither parent would fail to cooperate with court orders. Jonathan would “without 

hesitation” foster G.’s and Joey’s relationship. Although G. had shown some controlling 

behavior, she also had tried to encourage Jonathan’s participation in Joey’s life and to 

share information with Jonathan, and would do so in the future. G. has a tendency to “lie 

or shave the truth in circumstances that she perceives [to be] to her benefit but that are 

not generally harmful to others.” She was the more controlling in her relationship with 

Jonathan, and had a sense of dominion over Joey, but the evidence did not show that she 

tried to alienate Joey from Jonathan, instead consistently showing that she wished to 

involve Jonathan in Joey’s life. “The court does not believe that [Gal] will use her larger 

timeshare to keep important information from [Jonathan] or attempt to exclude him from 

the child’s life or attempt to alienate the child from him.”
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Joey would suffer detriment from the move “without question,” so the court must 

seek the custody schedule that gives him the least detriment. Significant evidence 

showed that his connection to G. was stronger. Dr. Aloia had testified that Joey’s 

emotional connection to G. would tip the balance in G.’s favor if he had to choose, and 

the court had gleaned from undisputed testimony the strength of Joey’s relationship with

G., supported by G.’s history of providing Joey’s primary care.

Joey had already lived in Israel for longer periods of time with G., was fluent in 

Hebrew and accustomed to the Israeli lifestyle, and the presence there of significant 

family members was an additional positive factor. Jonathan would not be “‘losing 

custody.’” Although his time-share would decrease, it would still be as much as 25 to 40

percent including visits to Israel, which Jonathan could afford.

“This was obviously a close and difficult case and the basis of the court[’]s 

decision is a somewhat slender reed on which to base such a momentous change. 

However, change must occur in the life of the child and his parents and whether the scale 

is tipped heavily or only lightly, the court must rule in the direction where it tips.”

The court reviewed and summarized its findings under In re Marriage of LaMusga 

(2004) 32 Cal.4th 1072 (LaMusga) and In re Marriage of Condon (1998) 62 Cal.App.4th 

533 (Condon), and provided details of the order for joint legal and physical custody.

The court entered judgment on May 17, 2012. Jonathan filed a motion to set aside

and modify the custody order, alleging that he had just discovered that G. had been 

driving (sometimes with Joey in the car) on a California driver’s license that had been 

suspended on November 26, 2010, following a drunk driving arrest and vehicle impound

in October 2010. G. responded that she had been pulled over in October 2010 but there

had been no arrest and no charges filed. G. had a valid international license, and she had

learned for the first time when she received Jonathan’s motion that her California license 

had been suspended. She immediately went to the Department of Motor Vehicles, which 

confirmed that there was no case against her and her alcohol level had been well within 

legal limits, lifted the suspension, and issued her an interim California license.
7

At a hearing in August 2012, G. testified that in October 2010 she had been pulled 

over and taken to a highway patrol station, where she had been tested and told that her

blood alcohol level was very low. She showed the officer a temporary California license, 

which was returned to her. She had not been given a ticket, or told that her California 

license would be suspended. The court stated that it believed G. had a valid temporary 

California license at the time she was stopped, that G. had not been arrested (based on the 

DMV’s setting aside of the suspension), that G.’s description of what occurred when she 

was stopped was correct, and that although she had been driving on a suspended license

(once her California license was suspended, all other licenses were suspended as well), 

she could reasonably have believed that she had a valid license to drive (as she also 

believed her Florida and international licenses were valid). Joey’s care had not suffered. 

The court also declined to set aside its judgment based on G.’s failure to advise Jonathan 

about Joey’s ongoing swimming lessons that summer.

In an order filed November 13, 2012, the trial court denied the motion to set aside 

and to modify. Jonathan filed this timely appeal.

DISCUSSION

The trial court noted that each party disputed multiple issues and incidents 

reflecting poorly on the character and parenting ability of the other, most of which were 

not central to its findings. Similarly, such incidents (which Jonathan continues to 

discuss) do not control our decision.

I. The trial court was not required to make findings under Family Code1section 

3048.

Jonathan argues that the court failed to make necessary findings regarding whether 

measures were necessary to prevent G. from abducting Joey. Section 3048, subdivision 

(b)(1), requires eight such findings in a custody order when “the court becomes aware of 

facts which may indicate there is a risk of abduction of a child.” Jonathan points out that 

 

1 All further statutory references are to the Family Code unless otherwise 

indicated.
8

the 2010 temporary custody order (by a different judge) states that “because of [Gal’s] 

immigration status, the Court has a responsibility to make a 3048 order,” but the 

temporary order also “makes no finding that there is a risk that [Gal] would violate the 

court orders.” The judge who presided over trial concluded in the 2012 statement of 

decision that there was no showing that G. was unlikely to comply with future custody 

orders or was likely to refuse to return Joey to the United States during Jonathan’s 

appointed custody times. G. had traveled to Israel a number of times with Joey and had 

always returned, and in 2009, when her father was diagnosed with cancer, she returned 

with no compulsion when her family obligations were satisfied. Nevertheless, the court 

did require G. to register the judgment with the Israeli court system and to stipulate to 

continuing jurisdiction of the California court, and ordered that G. (who did not have the 

financial resources to post a bond) would forfeit all child support if she failed to comply 

with any court order, as provided under section 3048, subdivisions (b)(2)(B) and 

(b)(2)(H).

No findings under section 3048, subdivision (b)(1) were required given the trial 

court’s finding that there was no risk that G. would abduct Joey.

II. The trial court imposed adequate protective measures.

Jonathan argues that the court imposed “grossly inadequate” protections for 

international relocation in violation of Condon, supra, 62 Cal.App.4th 533. Condon 

established that a child’s best interest in an international relocation case requires

guaranteed enforceability of the California custody order in the foreign country (there, 

Australia). (Id. at p. 547.) The court of appeal concluded that the trial court erred in 

failing to guarantee enforceability, and on remand the judgment must require a

concession to California’s continuing jurisdiction, and must create sanctions to enforce 

that concession: “At a minimum, such sanctions should include the posting of an 

adequate monetary bond within [the relocating parent’s] means and the potential 

forfeiture of all or some support payments upon proof [the parent] is disregarding 

essential terms of the court order or has violated the concession of jurisdiction by 
9

pursuing modification of the California order in the [foreign country’s] courts.” (Id. at 

p. 562.)

Here, the order included a requirement that before leaving California for Israel, G. 

must file a stipulation consenting to California’s continuing jurisdiction and further 

stipulate that she would not file any action seeking modification in any but a California 

court; she also must file the stipulation in the Israeli courts. G. was further required to 

register the judgment with the Israeli court system and submit and file proof of such 

registration. The court found that G. did not have adequate resources to establish a bond. 

Therefore, the court ordered that 15 days after Jonathan filed a declaration contending 

that G. violated any custody order, all child support would be deposited into a trust 

account established and owned by Jonathan with G. as a beneficiary, to be used to pay for 

the costs of any litigation; anything left over would be paid to G.

Jonathan argues that the absence of a bond is fatal. He does not dispute the court’s 

finding that G. did not have the resources to post a bond, however, and Condon refers to a 

bond within the relocating parent’s means. (Condon, supra, 62 Cal.App.4th at p. 562.) 

Condon also contemplates another possibility, “whether or not the move-away parent has 

the funds to post a substantial bond,” in the form of terminating or reducing child support 

payments if the custodial parent attempts to frustrate the custody order and the foreign 

court refuses to enforce it. (Id. at p. 548.) Under the circumstances in Condon (where 

the mother had once moved the children to France and had defied a court order by 

removing the children to Australia without allowing any access to the father), the court of 

appeal commented that registration of the California custody order with Australia, does 

not provide “absolute protection.” The children were Australian citizens and residents, 

and had previously resided for long periods of time in Australia. A court would likely 

consider them “‘settled’” there, and so would not make an order requiring their return to 

California. (Id. at pp. 557, 559–560.) In this case, however, the court found that G. 

could not afford to post a bond, and the circumstances do not show the same risk as in 

Condon that a court would fail to enforce the California order.
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The trial court’s order in In re Marriage of Abargil (2003) 106 Cal.App.4th 1294

(Abargil) required the mother moving to Israel to register the judgment in the Israeli

courts and file her stipulation consenting to the judgment and California’s continuing 

jurisdiction in the Israeli courts. “[T]he judgment had teeth to compel [her] adherence 

because it required her to post a bond or other surety to ensure her compliance,” 

consistent with Condon’s provision that a “court may fashion creative mechanisms such 

as bond and cut off of financial support to ensure overseas compliance.” (Id. at p. 1300.) 

There was no provision for forfeit of support in the event of violation, and the court did 

not require such a sanction on remand. (Id. at pp. 1303–1304.) The court here took the 

circumstances into account and given that G. could not afford to post a bond, the order 

imposed a reasonable sanction should she fail to comply with the court’s custody order, 

allowing Jonathan to keep his support payments in trust 15 days after he filed a 

declaration alleging a violation.

Jonathan also argues that the court should have imposed four additional 

conditions, none of which he supports with authority. The trial court did not abuse its 

discretion in declining to go beyond what Condon requires.

III. The custody order was not an abuse of discretion.

We review the custody order for an abuse of discretion, measuring “whether the 

trial court could have reasonably concluded that the order in question advanced the ‘best 

interest’ of the child.” (In re Marriage of Burgess (1996) 13 Cal.4th 25, 32 (Burgess).) 

No matter the reasoning of the trial court, we must uphold the ruling if it is correct on any 

basis. (Ibid.) We draw all reasonable inferences in support of the court’s ruling and 

defer to the court’s express or implied findings when supported by substantial evidence.

(In re Marriage of Catalano (1988) 204 Cal.App.3d 543, 548.) We may reverse if the 

trial court applied improper criteria or misunderstood the law, as then the court has not 

properly exercised its discretion. (F.T.v. L.J. (2011) 194 Cal.App.4th 1, 15.)

Jonathan appeals from an initial permanent custody order. “In an initial custody 

determination, the trial court has ‘the widest discretion to choose a parenting plan that is 

in the best interest of the child.’ ( . . . § 3040, subd. (b).) It must look to all the 
11

circumstances bearing on the best interest of the minor child.” (Burgess, supra, 13 

Cal.4th at pp. 31–32.) “In addition, in a matter involving immediate or eventual 

relocation by one or both parents, the trial court must take into account the presumptive 

right of a custodial parent to change the residence of the minor children, so long as the 

removal would not be prejudicial to their rights or welfare. ( . . . § 7501 . . . .)” (Id. at 

p. 32.)

The Family Code has no preference or presumption regarding any arrangement for 

custody and visitation, and “under . . . section 7501, the ‘general rule [is that] a parent 

having child custody is entitled to change residence unless the move is detrimental to the 

child.’” (Burgess, supra, 13 Cal.4th at p. 35.) “A trial court may consider the extent to 

which the minor children’s contact with their noncustodial parent will be impaired by 

relocating. In so doing, however, it is not restricted to any particular formula for contact

or visitation; nor is it required to make a custody determination that preserves 

the . . . status quo.” (Id. at p. 36.) “The dispositive issue is, accordingly, not whether 

relocating is itself ‘essential or expedient’ either for the welfare of the custodial parent or 

the child, but whether a change in custody is ‘“essential or expedient for the welfare of 

the child.”’” (Id. at p. 38.) A change is essential or expedient if it is in the child’s best 

interest. (LaMusga, supra, 32 Cal.4th at p. 1098.)

A. The trial court considered Joey’s best interest.

Jonathan argues that the trial court applied the wrong standard in making the 

custody order, neglecting the best interest standard and focusing entirely on the relative 

detriment to Joey of awarding primary physical custody to G. or to Jonathan. The 

statement of decision belies that claim. The trial court began by stating that in making 

the initial permanent custody order, it had the broadest discretion to determine what 

arrangement would be in Joey’s best interest. In the abstract, Joey’s best interest would 

be served if neither G. nor Jonathan were to relocate and if they continued to share 

custody equally. Given the circumstance of G.’s return to Israel, “the court must base its 

order on the child’s best interest under those circumstances,” determining “how the 

child’s interest will best be served by that living arrangement that causes him the least 
12

detriment after one parent moves away.” The court also considered the detriment to 

Joey’s relationship with Jonathan’s stepson Ryan and stepmother Michelle. Joey was 

closely bonded to both parents, and “[h]e will suffer detriment from the move without 

question. Thus, the court order should be for a schedule that gives him the least 

detriment.” Joey’s connection to G. was stronger, so “he would suffer more detriment by 

losing that connection to his mother for the longer period of time.”

The court’s discussion of detriment does not mean it did not base its order on

Joey’s best interest. When one parent proposes a move, “it is within the wide discretion 

of the superior court to order a change in custody based upon such detriment [to the 

relationship between the child and the noncustodial parent], if such a change is in the best 

interests of the children in light of all the relevant factors.” (LaMusga, supra, 32 Cal.4th 

at p. 1095.) In this case, the parents could not continue to share physical custody equally. 

The court was correct to consider whether Joey’s relationship with G. would suffer more

detriment if Joey stayed behind while G. moved to Israel, leaving Jonathan with the 

larger share of physical custody, or if Joey’s relationship with Jonathan would suffer 

more detriment if Joey moved to Israel with G., leaving G. with the larger share of 

physical custody. Acknowledging that this was a delicate and difficult decision, the court 

concluded that Joey’s closer bond with G. meant that he would suffer a greater detriment 

if she were the parent with a lesser share of physical custody, and given all the 

circumstances discussed in the lengthy statement of decision, it was in Joey’s best interest 

to reside primarily with G. in Israel.

The trial court in F.T. v. L.J., supra, 194 Cal.App.4th 1 declined to address the 

question of which custody arrangement would be in the child’s best interests, 

“misunderstanding and/or avoiding the fundamental question before it.” (Id. at p. 22.) 

Further, the trial court erroneously required the moving parent to show that the planned 

relocation was necessary, and focused excessively on the detriment to the child’s 

relationship with the nonmoving parent without considering the detriment to the child’s 

relationship with the relocating parent if the child stayed behind. (Id. at p. 23.) The court 

of appeal found an abuse of discretion for those reasons and others, including that 
13

insufficient evidence supported some of the trial court’s findings. (Id. at p. 25.) F.T. v. 

L.J. does not require us to find an abuse of discretion, as here the trial court understood 

and applied the proper standard.

B. The trial court made the necessary findings.

Under the “heart-wrenching circumstances” in move-away custody cases, the “law 

is not amenable to inflexible rules.” (LaMusga, supra, 32 Cal.4th at p. 1101.) Our 

Supreme Court listed eight factors “[a]mong [those] that the court ordinarily should 

consider” in relocation cases when deciding whether to modify custody. (Ibid.)

Jonathan argues that the trial court failed to make a finding regarding Joey’s 

“interest in stability and continuity in the custodial arrangement.” (LaMusga, supra, 32 

Cal.4th at p. 1101.) To the contrary, the court considered Joey’s interest in a stable 

arrangement throughout the statement of decision, noting that Jonathan’s intent to 

relocate meant that even in California there would be an effect on the stability of Joey’s 

physical surroundings, and that given Joey’s closer bond with G., emotional stability 

would be best achieved if Joey spent the school year with G. in Israel. Jonathan reargues 

the evidence, but substantial evidence supports this finding.

We easily reject Jonathan’s next argument (that the court failed to make findings 

regarding “the reasons for the proposed move”). (LaMusga, supra, 32 Cal.4th at 

p. 1101.) Citing its own conclusions and Dr. Aloia’s findings, the court concluded that

G. “has valid good faith reasons for her wish to relocate. She wishes to be near her 

family in a country where she can obtain employment not associated with [Jonathan], 

where she will not be as dependent upon [Jonathan], where she can obtain emotional and 

financial support and where she believes she will find a better environment for raising the 

child.” These findings are based on substantial evidence, and we must remember that 

there is no dispute that G.’s immigration status requires her to return to Israel when the 

custody litigation is at an end. The court “may consider whether one reason for the move 

is to lessen the child’s contact with the noncustodial parent” (id. at p. 1100, italics added), 

but “in the end the trial court was not persuaded. In its statement of decision, the court 
14

did not find [the moving parent’s] motives to be impure. All conflicts in the evidence are 

drawn in favor of the judgment.” (Niko v. Foreman (2006) 144 Cal.App.4th 344, 364.)

Jonathan faults the trial court for not finding which parent was most likely to 

ensure that Joey would have frequent and continuing contact with both parents. This is 

not a factor in LaMusga, supra, 32 Cal.4th 1072, but a factor to be considered in whether 

to grant sole custody to either parent under section 3040 (a)(1), which is not in issue here. 

Nevertheless, the trial court did conclude that even before court involvement G. had 

attempted to “include and involve” Jonathan in Joey’s life, and she would not use her 

larger time-share to exclude Jonathan, showing “a willingness to take all necessary and 

proper steps to maintain [Jonathan’s] connection with” Joey. Dr. Aloia initially 

expressed some concern in his report, but after he reviewed additional information, he 

testified that he had no serious concerns that G. would not foster a relationship with 

Jonathan if Joey moved to Israel with G. G.’s difficulties with email were not evidence 

that she intended not to foster a relationship between Joey and Jonathan.

Jonathan argues that the court did not find compelling circumstances to justify 

Joey’s separation from his stepbrother, Michelle’s son Ryan. In a move-away case where 

the trial court split the parents’ four biological children, allowing two to move with the 

mother while two remained with the father, both parents argued that separating the 

siblings was an abuse of discretion. (In re Marriage of Williams (2001) 88 Cal.App.4th 

808, 811–812 (Williams).) The court of appeal agreed that the trial court abused its 

discretion when it “‘split the babies’” and made no findings regarding the adverse effect

on the children, with no testimony, psychological evaluations, or evidence about the bond 

between the siblings or how the separation would affect their best interests. (Id. at 

p. 813.) Such a split required the trial court to articulate “compelling circumstances.” 

(Id. at pp. 814–815.) Similarly, in a custody dispute after a mother with primary physical 

custody of two biological brothers moved to another county, the court awarded custody 

of one brother to the mother and one to the father, with no testimony or evidence 

regarding the needs of the brothers or their relationship (counsel represented that one 

brother was autistic, which the father argued had a negative effect on the other child’s 
15

development). (In re Marriage of Heath (2004) 122 Cal.App.4th 444, 447–448 (Heath).) 

The court of appeal relied on Williams to conclude that where the record was silent as to 

the “potential detriment of their separation,” there was no proof of “compelling 

circumstances,” making it an abuse of discretion to separate the children based on 

“[s]peculation by lawyers, conflicting argument on behalf of parents, and ‘hunches’ of 

judges.” (Heath, supra, 122 Cal.App.4th at p. 450.) Detriment also could not be 

presumed from the alleged disability of one of the brothers. (Ibid.) The court reversed 

and ordered separate counsel appointed for each brother. (Id. at p. 452.) No case has 

extended the reasoning in Williams and Heath to stepsiblings.

We decline to apply the “compelling circumstances” requirement to this case. 

Ryan, who is four years older than Joey, is not Joey’s biological sibling. We grant 

Jonathan’s request for judicial notice of his adoption of Ryan in October 2013, but this 

postjudgment alteration in Jonathan’s legal relationship with Ryan does not change 

Joey’s relationship with Ryan for the purpose of our analysis. Joey was born in 

September 2005. Jonathan married Michelle in July 2008, when Joey was nearly three

and G. had primary physical custody. Jonathan has had equal physical custody of Joey 

since June 2010, when Joey was nearly five.

Unlike in Williams and Heath, there was ample evidence and testimony regarding 

the boys’ relationship. Dr. Aloia testified at trial that Joey’s close relationship with Ryan 

was very important, and breaking that bond would be a detriment, but was not the 

primary issue: “Take Ryan out of this. He’s not a parent.” The bond had strengthened 

since his initial report 15 months ago and the boys were now “virtually inseparable.”

Nevertheless, Dr. Aloia foresaw no difficulty for Joey in resuming that close relationship

when he returned to California for Jonathan’s portion of custody. The trial court took the 

evidence into account in determining Joey’s best interest, recognizing that Joey was close 

to Ryan and the move would reduce their time together, mitigated by Joey’s substantial 

time with Jonathan and the ability to communicate electronically.

Equating the relationship of a stepsibling with whom a child has spent half of his 

time since the age of five with that between a child and his biological sibling would be 
16

inappropriate, and requiring compelling circumstances to separate stepsiblings would 

affect all cases in which the subject of a custody dispute has a blended family. The court 

appropriately evaluated the evidence regarding the boys’ relationship, and was not 

required to find compelling circumstances to allow their separation during the time that

G. and Joey reside in Israel.

Jonathan points out that the trial court failed to make a specific finding regarding

G.’s willingness to put Joey’s interests above her own. While this is one of the eight 

factors in LaMusga, supra, 32 Cal.4th at p. 1101, among those that a trial court ordinarily 

should consider, the absence of a specific finding does not mean that the custody decision 

was an abuse of discretion.

Finally, Jonathan argues that the trial court failed to determine which parent would 

be a better moral role model, and that the court failed to determine which parent would 

“best serve Joey’s interest in becoming a well-educated and competent adult.” He cites 

no legal authority requiring those specific findings, and so we do not consider his 

arguments. (Abargil, supra, 106 Cal.App.4th at p. 1300.)

IV. The trial court did not abuse its discretion in refusing to set aside the 

judgment.

The same abuse of discretion standard applies to our review of the denial of 

Jonathan’s motion to set aside the judgment, with Jonathan bearing the burden to make 

“‘a clear showing of an abuse in the exercise of such discretion.’” (Roberts v. Roberts 

(1966) 245 Cal.App.2d 637, 639.)

Jonathan argues that the trial court “compounded its prior errors” in failing to set 

aside the judgment based on the new evidence regarding the suspension of G.’s 

California driver’s license. We described above the court’s findings, which are based on 

substantial evidence, that the license had been suspended in error and G. did not know 

about the suspension. Jonathan has not shown that the denial of the motion to set aside 

was an abuse of discretion.
17

DISPOSITION

The judgment is affirmed. Costs are awarded to respondent.

JOHNSON, J.

We concur:

CHANEY, Acting P. J.

WILEY, J.*

 

*

Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant 

to article VI, section 6 of the California Constitution.
Filed 8/6/14

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION ONE

J.M.,

Plaintiff and Appellant,

v.

G.H.,

Defendant and Respondent.

 B242123

 (Los Angeles County

 Super. Ct. No. BF037073)

 CERTIFICATION AND

 ORDER FOR PUBLICATION

The opinion in the above-entitled matter filed July 29, 2014, was not certified for 

publication in the Official Reports. For good cause it now appears that the opinion 

should be published in the Official Reports and it is so ordered.

CHANEY, Acting P. J. JOHNSON, J. WILEY, J.*

 

* Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant 

to article VI, section 6 of the California Constitution.