Filed 9/28/26 Marriage of Evans and Rayford CA1/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION THREE
In re the Marriage of VERONICA
MARIA EVANS and LA'MARCOS
JULIAN RAYFORD.
VERONICA MARIA EVANS,
Petitioner and Appellant, A172454
v.
(Alameda County
LA’MARCOS JULIAN RAYFORD,
Super. Ct. No. HF23144057)
Defendant and Respondent.
Veronica Maria Evans (Mother) appeals the trial court’s February 6,
2025 order granting increased child visitation to La’Marcos Julian Rayford
(Father). This court requested letter briefing from the parties on the
appealability of the challenged order, which is memorialized in the trial
court’s Findings and Order After Hearing filed on April 7, 2025. The parties
filed the requested briefing, which we have considered. We conclude the
order is not appealable and dismiss the appeal.
FACTUAL AND PROCEDURAL BACKGROUND
Mother and Father are the parents of a child born in 2020. In June
2023, Mother filed a petition for dissolution. During the pendency of the
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dissolution proceedings, the trial court issued interlocutory custody and
visitation orders governing Father’s visitation time, which are recounted
below.
On November 15, 2023, the trial court granted joint legal and joint
physical custody of the child and ordered that “Father’s timeshare shall be
progressive.” Specifically, beginning on November 18, 2023, the child “shall
be in Father’s care on Saturdays, Tuesdays, and Thursdays from 10:00 AM to
4:00 PM.” (Id., ¶ 2) Then beginning on February 3, 2024, the child “shall be
in Father’s care from Saturday at 10:00 AM to Sunday at 4:00 PM, in
addition to the Tuesday and Thursday visits.” This visitation schedule
remained in effect through February 6, 2025.
On August 5, 2024, Mother filed a Request for Order (“RFO”) seeking,
among other things, a finding of abuse and a grant of relief under Family
Code section 3044 (“section 3044”1), temporary emergency orders regarding
child custody modification pending a hearing to grant sole legal custody to
Mother, and modification of order granting visitation to Father. That same
day, the court issued an order that, as relevant here, ordered the parties to
mediation and scheduled a hearing for September 11, 2024.
1 Section 3044 provides in pertinent part: “(a) Upon a finding by the
court that a party seeking custody of a child has perpetrated domestic
violence within the previous five years against the other party seeking
custody of the child, . . . , or against a person in subparagraph (A) of
paragraph (2) of subdivision (a) of Section 3011 with whom the party has a
relationship, there is a rebuttable presumption that an award of sole or joint
physical or legal custody of a child to a person who has perpetrated domestic
violence is detrimental to the best interest of the child, pursuant to Sections
3011 and 3020. This presumption may only be rebutted by a preponderance
of the evidence. [¶] (b) To overcome the presumption set forth in subdivision
(a), the court shall find that paragraph (1) is satisfied and shall find that the
factors in paragraph (2), on balance, support the legislative findings in
Section 3020.”
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On September 11, the trial court held a hearing and made a finding of
abuse by Father against Mother in October 2022. The court did not find
sufficient evidence of abuse towards the child, but it acknowledged the abuse
towards Mother implicated the presumption of detriment under section 3044.
The court modified its previous custody order and awarded Mother sole legal
and physical custody, but otherwise kept the existing visitation order in
place. The court denied Mother’s request for supervised visitation for Father,
emphasizing the lack of any evidence that Father had abused the child, but
indicated it would reconsider if such evidence were to surface from Child
Protective Services (“CPS”).
At a subsequent hearing on November 6, 2024, the court granted a two-
year domestic violence restraining order (“DVRO”) that expires on November
6, 2026. The court deferred consideration of modifications to the custody
order and Mother’s request to add other protected persons to the DVRO,
indicating it would await further information regarding the status of the CPS
investigations.
On February 6, 2025, the trial court conducted another hearing on the
existing DVRO and custody and visitation. Mother had requested that the
child be added to the DVRO as a protected party and that Father’s visitation
be supervised, while Father sought a 50-50 parenting schedule. After
hearing from the parties and the child’s appointed counsel, the court made
the following orders. First, it declined to add the child to the DVRO because
there was no information from CPS that would support the addition. Second,
it denied Father a 50-50 timeshare because he had not yet rebutted section
3044’s presumption of detriment. Nonetheless, the court granted Father one
additional overnight each weekend, resulting in an increased weekend
schedule of Saturday at 10:00 a.m. to Monday at 10:00 a.m., while
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maintaining the existing 10:00 a.m. to 4:00 p.m. visitation each Tuesday and
Thursday. These orders were memorialized in the court’s Findings and
Order After Hearing (“FOAH”) filed on April 7, 2025 (“the April 7 FOAH”).
Mother appealed the order increasing Father’s visitation as reflected in
the April 7 FOAH.
DISCUSSION
A. The Visitation Order in the April 7 FOAH is Not Appealable
As the Supreme Court explains, “[t]he right to appeal is wholly
statutory.” (Dana Point Safe Harbor Collective v. Superior Court (2010) 51
Cal.4th 1, 5; see Luo v. Volokh (2024) 102 Cal.App.5th 1312, 1325 [“appellate
courts have no jurisdiction to consider appeals that are not statutorily
authorized”].) In this regard, the Code of Civil Procedure provides in relevant
part: “An appeal, other than in a limited civil case, may be taken from any of
the following: [¶] (1) From a judgment, except an interlocutory judgment,
other than as provided in paragraphs [not relevant here], . . . . [¶] (2) From an
order made after a judgment made appealable by paragraph (1).” (Code Civ.
Proc., § 904.1, subd. (a)(1), (2), italics added.)
Mother offers no statutory or other authority holding that interlocutory
custody and visitation orders are appealable, and section 904.1 contains no
such suggestion. (See Lester v. Lennane (2000) 84 Cal.App.4th 536, 557–565
(Lester); see also Banning v. Newdow (2004) 119 Cal.App.4th 438, 456
[interim custody orders are not appealable].) Indeed, as the Lester court
notes, “[t]he very nature of such orders compels the swiftest possible review
of any challenge. The writ process, not the appeal process, is the way to get
that review.” (Lester, at p. 565.) Mother’s citations to In re Marriage of
Skelley (1976) 18 Cal.3d 365 (reduction of temporary spousal support was
appealable) and In re Marriage of Lafkas (2015) 237 Cal.App.4th 921
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(discussing community property and transmutation issues) do not suggest
otherwise.
Mother’s opening brief nonetheless states: “This appeal is taken from
an order modifying child custody and visitation by expanding Father’s
parenting time to include an overnight visit, which is appealable as an order
made after judgment under Code of Civil Procedure section 904.1(a)(2).” We
cannot agree.
Mother does not claim that a judgment appearing on the mandatory
FL-250 Judicial Council custody and support form has been executed and
filed, and no such form appears in the record on appeal. Mother, however,
argues the April 7 FOAH custody ruling is an appealable post-judgment
order following the court’s September 11, 2024 order (memorialized in the
October 1, 2024 FOAH), which had awarded her sole legal and physical
custody with certain visitation to Father. But as far as we can tell, the
visitation orders in both the October 1, 2024 FOAH and the April 7 FOAH
reflected interlocutory or interim rulings in response to the parties’ various
RFOs.
Not only does Mother’s appellate opening brief refer to several of the
custody and/or visitation orders as “temporary” or “interim”, but the record
contains a declaration executed by Mother on September 4, 2024 in which she
requested that the court “Order temporary sole custody to [Mother] with
temporary professional supervised visitation to [Father],” or in the
alternative, visitation that modified the non-supervised visitation schedule
then in place. (Italics added.) Though the court ordered sole physical and
legal custody to Mother at the September 11, 2024 hearing as she requested,
it declined to order supervised visitation in view of information that had not
been received from CPS. Instead, the court maintained the existing non-
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supervised visitation order pending further input from CPS. It also
appointed counsel for the child and continued the RFO regarding custody to
November 25, 2024. All this makes amply clear that the September 11, 2024
visitation rulings were not final but remained subject to future evidentiary
showings and possible visitation scheduling changes.
The same is true for the orders made at the February 6, 2025 hearing.
The court declined to grant Father’s motion to restore joint custody, stating it
was “not at the point” yet where it felt the section 3044 presumption had
been rebutted. The court further indicated it would not, at that hearing,
consider the child’s potential entry into preschool as a component of the
visitation schedule but would await future input about that. In short, the
record demonstrates that the visitation rulings in the October 1, 2024 FOAH
and the April 7 FOAH constituted nonappealable interlocutory orders that
were made in response to the existing available information and in
anticipation of future developments.
On a final note, Mother cites the order this court filed on March 19,
2025 as evidence that the April 7 FOAH is appealable. As relevant here, our
order observed that Mother purported to appeal from a February 6, 2025
unsigned minute order following a hearing on the parties’ requests for
various orders. Because the minute order was not itself an order but
indicated the trial court had directed counsel for the child to prepare an
FOAH, our March 19 order indicated we were “considering dismissing this
appeal for lack of an appealable order” and gave Mother the opportunity to
file a signed FOAH following the February 6, 2025 hearing. On April 7, 2025,
Mother filed with this court the trial court’s signed April 7 FOAH, and on
April 8 we construed Mother’s appeal to have been taken from that FOAH
and allowed the appeal to proceed. In Mother’s view, her filing of the signed
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April 7 FOAH, as well as our April 8 order, established the legal
appealability of the order. That is incorrect.
As our March 19 order explicitly stated, “If an appealable judgment or
order is timely filed with this court, we will construe the appeal to have been
taken from the appealable judgment or order. [Citations.]” (Italics added.)
Thus, while Mother was able to file a signed FOAH, and we allowed the
appeal to proceed at that point, the question remains whether that order is
appealable as a legal matter. As explained above, Mother has not
demonstrated the April 7 FOAH represents an appealable order under the
terms of Code of Civil Procedure section 904.1. Nor has she submitted any
case law suggesting that an interim or interlocutory visitation order such as
the one here is appealable.
In sum, we have no jurisdiction to consider Mother’s purported appeal.
B. Treatment as a Petition for Writ of Mandate is Not
Warranted
Though we conclude the April 7 FOAH is not appealable, we note our
“discretion to treat a purported appeal from a nonappealable order as a
petition for writ of mandate” in “unusual circumstances.” (H.D. Arnaiz, Ltd.
v. County of San Joaquin (2002) 96 Cal.App.4th 1357, 1366–1367.) But
treating “ ‘a nonappealable order as a writ should only be granted under
extraordinary circumstances, “ ‘compelling enough to indicate the propriety of
a petition for writ . . . in the first instance. . . .’ [Citation.]” ’ ” (Id. at p. 1367.)
“Routine granting of requests to treat improper appeals as writs where there
are no exigent reasons for doing so would only encourage parties to burden
appellate courts with reviews of intermediate orders.” (Estate of Weber (1991)
229 Cal.App.3d 22, 25.)
Here, Mother has not requested that we exercise our discretion to treat
her appeal as a writ petition. More importantly, neither her briefing nor the
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record itself suggests the presence of extraordinary or exigent reasons that
warrant our doing so. The record demonstrates that the trial court has been
diligent in monitoring and addressing the visitation issues that have
constantly arisen in this case and has indicated its intent to continue doing
so.2 We therefore decline to treat Mother’s appeal as a writ petition.
DISPOSITION
The appeal is dismissed. In the interests of justice, the parties shall
bear their own costs on appeal. (Cal. Rules of Court, rule 8.278(a)(5).)
_________________________
Fujisaki, J.
WE CONCUR:
_________________________
Tucher, P. J.
_________________________
Rodríguez, J.
Evans v. Rayford (A172454)
2 On June 2, 2025, Mother filed a request for judicial notice of a letter
dated February 11, 2025 from the child’s therapist to the child’s counsel; a
screenshot showing the February 11, 2025 letter was posted in the therapist’s
client portal on that date; a May 20, 2025 trial court order appointing new
counsel for the child; and the trial court’s September 11, 2024 order
appointing the child’s original counsel. Although our conclusion that we have
no jurisdiction to consider Mother’s purported appeal renders the request for
judicial notice moot, we further note that none of these documents appears
relevant to the February 6, 2025 hearing whose findings are challenged
(indeed, three of the documents post-date that hearing) and, in any event, the
September 1, 2024 order is already included in the clerk’s transcript. The
request for judicial notice is denied.
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