Filed 10/7/26 Marriage of Michelle N. and David N. CA6
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SIXTH APPELLATE DISTRICT
In re the Marriage of MICHELLE and H053610
DAVID N. (Monterey County
Super. Ct. No. 21FL000590)
MICHELLE N.,
Respondent,
v.
DAVID N.,
Appellant.
Appellant David N. (father) and respondent Michelle N. (mother) are the parents
of one child, I.N. In 2025, mother filed a request for order (RFO) seeking to modify
father’s visitation with I.N.1 The family court granted mother’s request and limited
father’s in-person contact with I.N. to professionally supervised visitation.
Father now appeals from the modified visitation order. He argues the family court
erred by denying his request for a hearing with live testimony under Family Code2
section 217, failing to make statutory findings that the visitation order was in I.N.’s best
1
Pursuant to California Rules of Court, rule 8.90, we refer to the parties by their
first names and last initials, and to their minor child by initials only. (Cal. Rules of
Court, rule 8.90(b)(1), (11).) No disrespect is intended.
2
Subsequent undesignated statutory references are to the Family Code.
interests, and misapplying section 3044. Father also contends the family court’s
evidentiary considerations were improper. We disagree and affirm.
I. FACTUAL AND PROCEDURAL BACKGROUND
We derive our factual summary from the limited clerk’s transcript.3 Mother (who
is not participating in this appeal) and father were married for four and a half years.
Their marriage was dissolved in 2021 through a judgment incorporating a marital
settlement agreement.
Mother obtained a restraining order against father in September 2021 pursuant to
the Domestic Violence Prevention Act (§ 6200 et seq.). In July 2022, the family court
awarded mother sole legal and physical custody of I.N. after an evidentiary hearing.
According to mother, the court also found that the section 3044 presumption applied and
was not rebutted by father. Mother’s restraining order was renewed in January 2024 and
expires in 2028.4
In May 2024, the family court modified the restraining order’s visitation
provisions. Pursuant to that modification, father was permitted unsupervised visitation
with I.N. along with telephone or video calls during noncustodial periods according to a
specified schedule.
3
We deny father’s request for judicial notice of a certified minute order
(Monterey County Superior Court Case no. MS338235A) dismissing father’s convictions
for inflicting corporal injury on a spouse/cohabitant (Pen. Code, § 273.5, subd. (a)) and
disturbing the peace (id., § 415), pursuant to Penal Code section 1203.4. “[W]e
‘generally do not take judicial notice of evidence not presented to the trial court’ and will
do so only in ‘exceptional circumstances.’ ” (Ross v. Seyfarth Shaw LLP (2023)
96 Cal.App.5th 722, 746.) No such exceptional circumstances are presented here.
4
We previously granted father’s motion to augment the record to include his
declaration dated January 10, 2024, and its attached exhibits, which appears to have been
filed by father in opposition to mother’s January 2024 application to renew the original
2021 restraining order.
2
A. MOTHER’S REQUEST TO MODIFY THE VISITATION ORDER
In January 2025, mother filed an RFO to modify the visitation order. She also
submitted an ex parte application for temporary emergency orders, requesting that
father’s contact with I.N. be limited to professionally supervised visitation until the RFO
hearing. The family court granted mother’s request for temporary orders and set the RFO
for hearing on shortened time.
Mother alleged in her supporting declaration that father was experiencing
paranoia, was unstable, and had exposed I.N. to information about the parents’ conflict.
She described receiving messages from father in which he expressed feeling unsafe
conducting custody exchanges in Monterey County and stated that strangers had yelled at
him and wanted to kill him. He also believed the Marina Police Department, Monterey
County Sheriff’s Office, and Monterey County District Attorney’s Office were
conspiring against him. Mother included descriptions of online videos posted by father in
which he conveyed animosity towards police and discussed possible violent
confrontations in I.N.’s presence.
Mother stated that father told I.N. that she was responsible for the conspiracy, and
that father’s behavior was negatively affecting I.N. She feared that father still possessed
a handgun he had owned during their marriage, which I.N. had reported seeing when he
was with father. Mother was also concerned that father might abscond with I.N. because
father travelled frequently to Indonesia. Finally, mother alleged that father had refused to
disclose his current address, making it impossible for her to locate father and I.N. if a
welfare check was necessary during his parenting time.
Father filed a declaration in response to mother’s RFO in January 2025. There,
father claimed mother was pre-emptively retaliating against him because he had intended
to file a contempt motion against her for repeatedly violating the order allowing him
telephone and video calls with I.N. He denied being mentally ill, threatening violence or
exposing I.N. to any harm. He opposed supervised visitation because he believed it sent
3
a “harmful message” to I.N. that he was “unfit as a parent;” he stated he would refuse to
participate in supervised visitation and would wait to resume unsupervised visitation after
mother started complying with the visitation provisions of the restraining order.
B. JANUARY 27, 2025 RFO HEARING
There is no reporter’s transcript of the January 27, 2025 hearing (January 27
hearing). The minute order indicates that the family court kept in place the temporary
order for professionally supervised visitation and referred the parties to Family Court
Services (FCS) for a fact-based inquiry report under section 3183, subdivision (b).5 After
the hearing, the court issued an amended restraining order incorporating the visitation
modification and a findings and order after hearing.
C. APRIL 2025 UPDATING DECLARATIONS
The record indicates that the hearing to review the fact-based inquiry report was
originally scheduled for April but was continued to July. Both parties filed updating
declarations before the April hearing was continued. In his declaration, father repeated
many of the statements he made in his earlier declaration. He again claimed that
mother’s RFO was retaliatory, and that she had “denied court-ordered phone calls for
years.” He explained that he is a “public intertest advocate” and that his online
comments concerning the Marina Police Department were in response to “having
experienced firsthand non-community based policing tactics.” He maintained that he was
not mentally ill, had no history of mental illness “beyond periodic depression,” and
asserted that mother’s allegations were “baseless” and “defamatory.”
Mother summarized in her declaration efforts she made to retain a supervised
visitation provider who was acceptable to father. According to mother, father had
5
Section 3183, subdivision (b) permits the trial court to order, with the parties’
agreement, a fact-based inquiry in which a family court liaison investigates safety
allegations or obtains input from a child, or both, and then reports the information back to
the court.
4
refused supervised visitation and told her that I.N. would know it was her choice not to
allow unsupervised visits. She cited instances in which father had suggested to I.N.
during telephone calls that she was responsible for the lack of visits. Finally, she alleged
father had attempted to circumvent the supervised visitation order by arranging for
parent-teacher meetings and requesting that I.N. also attend the meetings.
D. THE FACT-BASED INQUIRY REPORT
The FCS liaison completed the fact-based inquiry report in June 2025. He did not
identify any specific safety concerns but noted that father and mother continued to
disagree whether supervised visitation was appropriate or necessary. The liaison related
that I.N. expressed a strong desire for in-person visitation and opined that it was unfair he
could not see father, which father told I.N. was mother’s fault “ ‘because she’s in
charge.’ ” In response to the liaison’s questioning, I.N. reported that “he had not seen
any problems” between his parents during custody exchanges, but became “restless,
began avoiding eye contact, and made efforts to change the subject” and “very clearly
was not comfortable with the topic and did not want to talk about it.” The liaison
reported that no supervised visits had occurred since the previous hearing, but father and
I.N. had spoken regularly during video calls.
The liaison summarized 15 police reports involving father and mother between
2016 and 2025. The most serious incident occurred in 2016, when father was charged
with a violation of Penal Code section 273.5 after mother reported that he grabbed her by
the throat, threw her to the ground, and then hit her repeatedly. In January 2019, Marina
police officers responded to a “heated verbal exchange” between mother and father that
did not result in any criminal charges. In February 2019, father was arrested and charged
with violating his probation conditions (presumably arising from father’s 2016
conviction) after another “heated verbal dispute”; those charges were later withdrawn
“due to a re-interpretation of the language in his probation conditions.” In 2021, mother
reported multiple violations of the restraining order based on father’s text messages, but
5
no charges were filed. The remaining police reports involved various disputes related to
custody exchanges, none of which resulted in criminal charges.
E. MOTHER’S JULY 2025 UPDATING DECLARATION
Mother filed another updating declaration in July 2025. She stated that father had
sent her more harassing messages, which she reported to the Monterey County District
Attorney’s Office and apparently resulted in misdemeanor charges and a warrant for
father’s arrest. She alleged father’s online blog contained images of confidential reports
regarding I.N., as well as secretly recorded audio from a previous court hearing despite
the trial court’s denial of father’s request to record the hearings. She alleged that father’s
telephone calls were negatively affecting I.N., including that I.N. had been “visibly
anxious with an upset stomach” before the calls and “tired and withdrawn” afterwards.
She stated that I.N. had also reported that father told him that mother was preventing
father from calling him. In addition, she alleged that father continued to berate her in
front of I.N. during telephone calls and accused her of preventing visitation.
F. JULY 14, 2025 HEARING AND MINUTE ORDER
There is no reporter’s transcript of the July 14, 2025 hearing (July 14 hearing) at
which the trial court reviewed the fact-based inquiry report. The minute order reflects
that the family court heard argument from each party’s counsel and took the matter under
submission.
The court issued an order on July 15, 2025 (July 15 order) and attached it to the
minute order. The order states in full: “The Court inquired the reason why [father] had
not filed a declaration in light of the local rules. The Court finds that [father] failed to
demonstrate that the current orders are not in the best interest of the child pursuant to
Family Code sections 3011, 3040, and 3044. [Father] not having made a basis for an
evidentiary hearing, the Court denies the request for a Family Code 217 hearing for that
reason.”
6
Father timely appealed from the minute order, which is an appealable order after
final judgment. (Code Civ. Proc., § 904.1, subd. (a)(2); Cal. Rules of Court,
rule 8.104(c)(2) [entry date of appealable minute order “is the date it is entered in the
permanent minutes”]; cf. Enrique M. v. Angelina V. (2004) 121 Cal.App.4th 1371, 1377–
1378.)
II. DISCUSSION
Father contends on appeal that the family court improperly denied his request for
live testimony and cross-examination of witnesses under section 217; failed to make
findings under sections 3011, 3020, and 3100, and misapplied section 3044; and erred in
its consideration of the evidence. We address these contentions but begin by describing
well-established appellate principles and the legal standards that govern our review.
A. APPELLATE PRINCIPLES
The analysis of any issue raised on appeal begins with one premise: a trial court
order is ordinarily presumed to be correct and the burden is on appellant to demonstrate,
on the basis of the record presented to the appellate court, that the trial court committed
an error that justifies reversal of the order. (Jameson v. Desta (2018) 5 Cal.5th 594, 608–
609 (Jameson).) Even though mother did not file a respondent’s brief, it remains father’s
affirmative burden to show reversible error. (In re Marriage of Davies (1983)
143 Cal.App.3d 851, 854.)
Father challenges the July 15 order through which the family court left in place the
temporary order limiting father’s in-person contact with I.N. to professionally supervised
visitation. He has provided only a clerk’s transcript; there is no settled statement or
reporter’s transcript of either the January 27 or the July 14 hearings. However, “[a]
proper record includes a reporter’s transcript or a settled statement of any hearing leading
to the order being challenged on appeal.” (Elena S. v. Kroutik (2016) 247 Cal.App.4th
570, 574 (Elena S.); Cal. Rules of Court, rule 8.120(b).) Although father is self-
represented, he is not exempt from the rules governing appeals. “A self-represented party
7
is to be treated like any other party and is entitled to the same, but no greater,
consideration than other litigants having attorneys.” (Elena S., at p. 574.)6
Given the state of the record, we must treat this appeal as one on the “judgment
roll,” subject to the following rules: error must be affirmatively shown by the record and
will not be presumed on appeal; the validity of the judgment or order on its face may be
determined by looking only to the matters constituting part of the judgment roll; where no
error appears on the face of a judgment roll record, all intendments and presumptions
must be in support of the judgment, and any condition of facts consistent with the validity
of the judgment will be presumed to have existed rather than one which would defeat it.
(Elena S., supra, 247 Cal.App.4th at pp. 574–575; Nielsen v. Gibson (2009)
178 Cal.App.4th 318, 324–325.)
6
In his appellate brief, father indicated that he was not seeking a settled statement
but reserved “the right to pursue a settled statement if this Court later determines it is
necessary for meaningful review.” We directed father to confirm the scope of the record
on appeal by verifying whether he sought a decision based on the clerk’s transcript alone
or whether he intended to seek leave to augment the record. Father responded that he
seeks review based on the clerk’s transcript “as to issues apparent from the written
record,” but added that to the extent this court concludes that a record of the oral
proceedings is necessary, he “requests leave to pursue a limited settled statement.” We
cannot oblige that request because it was solely father’s obligation to provide an adequate
record. (Jameson, supra, 5 Cal.5th at p. 609.) “[M]ere self-representation is not a
ground for exceptionally lenient treatment.” (Rappleyea v. Campbell (1994) 8 Cal.4th
975, 984.)
Father also argues that the absence of a reporter’s transcript is not due to any
failure on his part but to the superior court’s “practice or policy of not providing
reporters” for family law hearings. However, trial courts are generally not required to
provide a court reporter in family law proceedings unless a party qualifies for a fee
waiver and makes a timely request. (Cal. Rules of Court, rule 2.956(b)(3), (c)(2), (e)(1);
Jameson, supra, 5 Cal.5th at p. 623.) Under the Superior Court of Monterey County,
Local Rules, rule 19.11, a party who has been granted a fee waiver must file a request for
a court reporter at least 10 days prior to the hearing. Father has not demonstrated that he
was granted a fee waiver or that he made a timely request for a court reporter for either
the January 27 or July 14 hearings.
8
B. LEGAL STANDARD AND STANDARD OF REVIEW
“Under California’s statutory scheme governing child custody and visitation
determinations, the overarching concern is the best interest of the child.” (Montenegro v.
Diaz (2001) 26 Cal.4th 249, 255 (Montenegro).) “When determining the best interest of
the child, relevant factors include the health, safety and welfare of the child, any history
of abuse by one parent against the child or the other parent, and the nature and amount of
contact with the parents. [Citation.]” (Ibid., citing § 3011; In re Marriage of Brown &
Yana (2006) 37 Cal.4th 947, 955–956.)
Visitation orders are reviewed under the deferential abuse of discretion test.
(Montenegro, supra, 26 Cal.4th at p. 255; Heidi S. v. David H. (2016) 1 Cal.App.5th
1150, 1163.) “Generally, a trial court abuses its discretion if there is no reasonable basis
on which the court could conclude its decision advanced the best interests of the child.
[Citation.] ‘Under this test, we must uphold the trial court “ruling if it is correct on any
basis, regardless of whether such basis was actually invoked.” ’ [Citation.]” (Chalmers
v. Hirschkop (2013) 213 Cal.App.4th 289, 299 (Chalmers).) “Where a trial court has
discretionary power to decide an issue, an appellate court is not authorized to substitute
its judgment of the correct result for the decision of the trial court.” (In re Marriage of
Eben-King & King (2000) 80 Cal.App.4th 92, 118.)
In his appellate brief, Father acknowledges the best interests standard and the
abuse of discretion test but contends that the July 15 order must instead be subjected to
“strict scrutiny” review and the “least restrictive means” standard because it burdens his
fundamental parental rights. We reject this contention. Constitutional due process
principles do not apply to visitation disputes between a child’s parents, as opposed to
those between a parent and a non-parent. (Enrique M. v. Angelina V. (2009)
174 Cal.App.4th 1148, 1157; H.S. v. N.S. (2009) 173 Cal.App.4th 1131, 1142, italics
omitted [“In custody disputes between parents, the only standard that must be met to
satisfy constitutional due process is the best interest of the child showing.”].) The United
9
States Supreme Court’s decision in Troxel v. Granville (2000) 530 U.S. 57, which father
cites in support of this argument, does not hold otherwise. (Id. at pp. 100–101 (conc.
opn. of Kennedy, J.) [“In short, a fit parent’s right vis-a-vis a complete stranger is one
thing; her right vis-a-vis another parent or a de facto parent may be another”]; italics
omitted.) And the other cases father relies on, none of which involve child custody or
custody-related disputes between the parents of a child, do not support his position.
Accordingly, we examine the record to determine whether the family court abused its
discretion in finding that professionally supervised visitation was in I.N.’s best interests.
C. FATHER HAS NOT SHOWN REVERSIBLE ERROR
1. Father Forfeited His Request for Live Testimony
Father contends the family court improperly denied his request under section 217
for an evidentiary hearing, which he opines “was essential” due to “contested factual and
credibility issues.” Father asserts that without live testimony and cross-examination, he
was unfairly prevented from challenging purported inaccuracies and omissions in the
fact-based inquiry report and was deprived of an opportunity to present his own evidence.
We review a ruling denying an evidentiary hearing under section 217 for abuse of
discretion. (In re Marriage of Swain (2018) 21 Cal.App.5th 830, 837; In re Marriage of
Hearn (2023) 94 Cal.App.5th 380, 390 (Hearn).)
Section 217 provides that in family law proceedings “the court shall receive any
live, competent testimony that is relevant and within the scope of the hearing.” (Id.,
subd. (a); Cal. Rules of Court, rule 5.113(a).) This includes live testimony from an FCS
liaison. (See McLaughlin v. Superior Court (1983) 140 Cal.App.3d 473, 483 [local court
rule that required child custody counselors to submit recommendations without
supportive reasoning but prohibited cross-examination of the counselor violated due
process].) However, “[i]n appropriate cases, a court may make a finding of good cause to
refuse to receive live testimony,” and if it does so, the court “shall state its reasons for the
10
finding on the record or in writing.” (§ 217, subd. (b); see also Cal. Rules of Court, rule
5.113(c).)
Additionally, “the right to live testimony under Family Code section 217 may be
forfeited” for failure to comply with the statute’s procedural requirements. (In re
Marriage of Cohen (2023) 89 Cal.App.5th 574, 582 (Cohen); In re Marriage of George
& Deamon (2019) 35 Cal.App.5th 476, 481–482 (George) [appellant’s failure to “follow
the proper procedures [section 217] to ensure that [ex-husband’s] live testimony was
available for the family court to receive,” meant that “the family court was not required to
receive any such testimony”]; Chalmers, supra, 213 Cal.App.4th at p. 313 [trial court did
not err in failing to hold evidentiary hearing on motion to modify order denying visitation
where moving party did not file § 217 motion, did not comply with § 217’s requirements,
and court made finding there was good cause to deny request for live testimony].) For
example, in Hearn, supra, 94 Cal.App.5th, the appellate court held that a husband
forfeited his right to live testimony under section 217 by not asking to testify or to cross-
examine wife or other witnesses either in his responsive declaration or at the hearing.
(Id. at pp. 390–391.) Similarly, the husband in Cohen, forfeited an evidentiary hearing
under section 217 because he did not request to testify or cross-examine witnesses in his
written opposition to wife’s motion to dismiss and did not submit a witness list. (Cohen,
at p. 582.)
Here, the record shows that father did not make a request for live testimony or to
cross-examine the liaison or any other witnesses in the documents he filed before the July
14 hearing. Nor does the record contain a witness list from father, which is required
under the statute and corresponding rules of court. (§ 217, subd. (c) [“A party seeking to
present live testimony from witnesses other than the parties shall, prior to the hearing, file
and serve a witness list with a brief description of the anticipated testimony”]; Cal. Rules
of Court, rule 5.113(e) [“Witness lists required by Family Code section 217(c) must be
served along with the request for order or responsive papers in the manner required for
11
the service of those documents”].) The only evidence in the record that father made a
section 217 request is one sentence from the family court’s July 15 order: “[father] not
having made a basis for an evidentiary hearing, the Court denies the request for a Family
Code 217 hearing for that reason.” But without a reporter’s transcript of the July 14
hearing or a settled statement detailing what occurred, the contours of father’s
section 217 request and any response from the family court made at the hearing are
unknown. Although father argues the court erred because it “made no on-the-record
finding of good cause to dispense with live testimony under section 217, subdivision (b),”
we are unable to review that claim on a judgment roll appeal and must presume the
family court stated reasons sufficient to support its order denying an evidentiary hearing.
(See Elena S., supra, 247 Cal.App.4th at pp. 574–575; see also Bullock v. Philip Morris
USA, Inc. (2008) 159 Cal.App.4th 655, 678 [“Absent an indication in the record that an
error occurred, we must presume that there was no error”]; Osgood v. Landon (2005)
127 Cal.App.4th 425, 435 [“ ‘if the appellant predicates error only on the part of the
record he provides the trial court, but ignores or does not present to the appellate court
portions of the proceedings below which may provide grounds upon which the decision
of the trial court could be affirmed,’ ” the appellant defaults.].) What is known from the
record is that father’s section 217 request was procedurally deficient. Thus, following
Hearn and Cohen, we conclude that father forfeited the right to live testimony at the July
14 hearing.
Regardless, any violation of section 217 was harmless. (See Cohen, supra,
89 Cal.App.5th at p. 582; George, supra, 35 Cal.App.5th at p. 484; Hearn, supra,
94 Cal.App.5th at p. 392.) The primary factual basis for mother’s RFO was father’s
recent online behavior and his conduct toward mother and I.N., which mother alleged
was evidence that father’s mental condition was deteriorating. Father offers no
compelling argument demonstrating it was reasonably probable that the result of the
proceedings could have been different if he were permitted to cross examine the liaison
12
regarding historical facts he asserts were mistaken or present additional evidence about
mother’s non-compliance with court orders, a topic father had already addressed in two
declarations. (Cohen, at p. 582 [error harmless where it was “not reasonably probable
that live testimony” would undermine the court’s disposition].) For these reasons, father
has not met his burden to show the family court abused its discretion by denying his
request under section 217 for a hearing with live testimony.
2. Specific Factual Findings Were Not Required
Father contends the family court was required to make specific findings in writing
or on the record under sections 3011, 3020 and 3100 to support its determination that
father failed to demonstrate that supervised visitation was not in I.N.’s best interests. As
an initial matter, we deem father’s argument forfeited because it is unsupported by cogent
argument or applicable legal authority obligating the court to make explicit findings
under those statutes in circumstances similar to this case. (City of Santa Maria v. Adam
(2012) 211 Cal.App.4th 266, 286–287.) We are not required to supply arguments for a
party or address issues raised without relevant legal argument. (Guthrey v. State of
California (1998) 63 Cal.App.4th 1108, 1115–1116.) Issues that are unsupported by
pertinent or cognizable argument may be deemed abandoned and discussion by the
reviewing court is unnecessary. (Landry v. Berryessa Union School Dist. (1995)
39 Cal.App.4th 691, 699–700; Jones v. Superior Court (1994) 26 Cal.App.4th 92, 99
[“Issues do not have a life of their own: if they are not raised or supported by argument or
citation to authority, we consider the issues waived.”].)
But even considering father’s argument on the merits, we are unpersuaded.
Section 3011 provides the factors courts must consider in making a determination of the
best interests of the child. As relevant here, subdivision (a)(5)(A) of section 3011
requires the court to state its reasons in writing or on the record only when it orders
unsupervised visitation for a parent after allegations concerning that parent’s history of
abuse have been brought to the court’s attention. (§ 3011, subd. (a)(5)(A).) Here, the
13
family court did not have to state its reasons because it did not make an order granting
father unsupervised visitation.
Similarly, section 3020 does not require the court to state its reasons or make
explicit findings. That section declares California’s public policy to “ensure that the
health, safety, and welfare of children shall be the court’s primary concern in determining
the best interests of children when making orders regarding the physical or legal custody
or visitation of children … [¶] … [and] ensure that children have frequent and
continuing contact with both parents after the parents have separated or dissolved their
marriage, or ended their relationship, and to encourage parents to share their rights and
responsibilities of child rearing in order to effect this policy, except when the contact
would not be in the best interests of the child.” (Id., subds. (a)-(c).) The statute provides
that when the policies set forth in subdivisions (a) and (b) of section 3020 conflict, the
court’s visitation order “shall be made in a manner that ensures the health, safety, and
welfare of the child and the safety of all family members.” (Id., subd. (c).) Nothing in
section 3020 requires the family court to explicitly detail its balancing of these policies
and memorialize its conclusions in writing or on the record.
The family court likewise was not required to make explicit findings under
section 3100. In relevant part, section 3100 provides that if an order “has been issued
restraining a parent, the court shall consider whether the best interest of the child requires
that visitation by that parent be suspended, denied, or limited to situations in which a
third person, specified by the court, is present, including virtual visitation.” (Id., subd.
(b)(1)(A).) Subdivision (b)(2) of section 3100 provides that “[i]n determining the type of
visitation with the restrained party, if any, is in the best interest of the child pursuant to
paragraph (1), the court shall consider the nature of the acts that led to the protective
order, the period of time that has elapsed since that order, and whether the restrained
party has committed further acts of abuse.” (Id., subd. (b)(2).) Section 3100 only
requires the court to make explicit findings if it determines a party or parent is staying or
14
residing in a confidential domestic violence shelter, which provision does not apply here.
(Id., subd. (e)(1)-(3).)
Finally, we do not find merit in father’s argument that the family court misapplied
section 3044 by failing to analyze the statute’s factors and state its findings. Section
3044 provides for a rebuttable presumption that an award of sole or joint physical or legal
custody of a child to a perpetrator of domestic violence is detrimental to the best interests
of the child. (Id., subd. (a).) Section 3044 expressly requires a court to explain its
reasons in writing or on the record if it finds the presumption of detriment has been
overcome. (City and County of San Francisco v. H.H. (2022) 76 Cal.App.5th 531, 542.)
Based on this record and considering the issues raised in mother’s RFO, we cannot
discern the particular reason the family court cited section 3044 in the July 15 order
because it was not considering a modification to the order granting mother sole legal and
physical custody of I.N. But for that reason, we view any error in citing section 3044 as
harmless. (In re Marriage of McLaughlin (2000) 82 Cal.App.4th 327, 337 [burden is on
appellant “ ‘in every case to show that the claimed error is prejudicial; i.e., that it has
resulted in a miscarriage of justice’ ”].)
3. Father’s Evidentiary Challenges are Unreviewable
Father contends in a series of arguments that the family court erred by relying on
certain evidence that was unfavorable to him while disregarding other evidence that he
deems more favorable. To that end, father claims the court placed “dispositive weight”
on the inaccurate and “one-sided” liaison’s report while ignoring unrebutted “direct
evidence” that mother failed to comply with the order for telephone and video contact
between father and I.N. According to father, by “deciding contested issues while
refusing to allow any testing of the report,” the court failed to recognize inaccuracies
related to child abuse allegations that were determined unfounded by the Monterey
County Department of Family and Children’s Services. He argues the court treated
mother’s restraining order as “a central predicate for its ongoing supervised-visitation
15
framework” and found it “as controlling on the question of current danger and
appropriate restrictions” without conducting a “meaningful hearing.” And father
represents that the court improperly relied on his outstanding arrest warrants in reaching
its decision because those warrants were “outside the evidentiary record.”
As a preliminary matter, we cannot evaluate the merits of father’s evidentiary
challenges. “Where, as here, the appeal is on the judgment roll alone, ‘[t]he question of
the sufficiency of the evidence to support the findings [of the trial court] is not
open.’ [Citations.] Instead, ‘the evidence is conclusively presumed to support the
findings, and the only questions presented are the sufficiency of the pleadings and
whether the findings support the judgment.’ [Citation.]” (Taylor v. Nu Digital
Marketing, Inc. (2016) 245 Cal.App.4th 283, 288.) Without a reporter’s transcript or
settled statement, there is no basis for this court to assess either the evidence relied upon
by the family court or any reasons for discounting or excluding other evidence.
To the extent father’s argument can be read to claim a lack of substantial evidence
to support the family court’s conclusion that professionally supervised visitation was in
I.N.’s best interests, we are mindful that “ ‘[t]he power of a reviewing court begins and
ends with a determination of whether there is in the record substantial evidence,
contradicted or uncontradicted, which supports the result reached; and we must also
assume in favor of the determination below the existence of every fact which the trier of
facts could have reasonably deduced from the evidence. [Citation.]’ ” (In re Marriage of
Balcof (2006) 141 Cal.App.4th 1509, 1521.) We do not gauge the strength of father’s
case in opposing mother’s RFO but determine whether there is substantial evidence to
support the family court’s best interests finding. Nor do we reassess the credibility of
witnesses on appeal. (Id. at p. 1531.) As noted ante, our review is a deferential one.
(Montenegro, supra, 26 Cal.4th at p. 255.)
With that in mind, the family court could have reasonably concluded, crediting
mother’s declarations describing father’s behavior both before and after she filed the
16
RFO, that continuing to allow father unsupervised visitation would have been detrimental
to I.N.’s health, safety, and welfare, which is the “primary concern” for a best interests
determination. (§ 3020, subd. (a).) Additionally, the court could have permissibly
concluded, after balancing the factors described in subdivisions (a) and (b) of
section 3020, that professionally supervised visitation most appropriately reconciled the
policy to ensure I.N.’s safety with the policy that he has frequent and continuing contact
with father. In short, there is substantial evidence in the record supporting the family
court’s order.
As we have indicated ante, the standard of appellate review of visitation orders is
the deferential abuse of discretion test. Measured by that standard, and because father
has not met his burden to demonstrate reversible error, we must conclude that the family
court did not abuse its discretion in modifying the visitation order.
III. DISPOSITION
The trial court’s July 15, 2025 order is affirmed. As mother has not participated in
this appeal, there is no basis for awarding appellate costs.
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______________________________________
Adams, J.
WE CONCUR:
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Grover, Acting P. J.
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Lie, J.
H053610
In re the Marriage of MICHELLE N. and DAVID N.