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Sole Legal Custody Properly Shifted to Father Based on Mother Blocking Visitation—C.A.
By a MetNews Staff Writer
Div. Two of the Fourth District Court of Appeal has held that a judge did not abuse his discretion in shifting sole legal custody of three children to the father because the mother had interfered with his visitation rights.
The unpublished opinion, authored by Justice Michael J. Raphael, was filed Tuesday. It recounts an observation made in the 1994 case of In re Marriage of Moschetta by the presiding justice of the Fourth District’s Div. Three, David Sills (since deceased). Sills wrote:
“It is common knowledge among family law practitioners that the quickest way for a parent to lose primary physical custody is for that parent to obstruct the visitation rights of the other parent.”
Anya Heiting, the appellant in the present case, had done just that, retired Riverside Superior Court Judge James T. Warren, sitting on assignment to his former court, found.
Initial Award
Under an August 2019 judgment, Anya Heiting and her former spouse, James Heiting II (son of a former State Bar president) were to share joint legal and physical custody of their three minor children. (A fourth child had already reached adulthood, as did one of the children last year.)
In a February 2020 order, Warren declared that the father would have sole legal custody with the two parents sharing physical custody. He found that Anya Heiting “has continuously discouraged or actively interfered with” her former husband’s “custody time.”
Warren noted that the mother, among other things, had arranged for passports for the children “surreptitiously so that she could take the children to Mexico without the knowledge or permission of father.” Her current partner has a condominium there.
Discretion Not Abused
The order was not an abuse of discretion, Raphael determined, saying:
“[M]other is incorrect that there is no evidence that it was in the best interest of the children to exclude her from decision making regarding the children. Mother had continued to use her authority under the previous joint legal custody arrangement to sign the children up for activities and make appointments for them in a manner that interfered with father’s scheduled time with the children, despite orders to cease doing so.”
Relying on that and the procurement of passports notwithstanding an order that any vacationing by the children outside the United States would require consent of the other parent, he wrote:
“It was not beyond the bounds of reason for the trial court to conclude on such facts that mother had demonstrated that she could not be trusted to exercise legal authority regarding the children in a manner that complied with court orders, and therefore that authority should be taken away from her.”
Raphael said that a showing of changed circumstances was not required because the initial award of joint legal custody was merely a temporary order.
The case is Marriage of Anya and James H., E075059.
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