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Court of Appeal:
No Error in Giving Custody to Mother Who Didn’t Seek It
Yegan Says Due-Process Rights of Father Were Not Violated Where His Ex-Wife Petitioned to Alter Judgment to Increase Her Visitation Rights and Judge, Instead, Decreed That Child Would Be Moved to Her Home
By a MetNews Staff Writer
The Court of Appeal for this district held yesterday that where a woman sought an increase in visitation rights with her daughter, it was not a due-process violation for the judge to instead remove the child from the custody of the father and turn her over to the mother.
Justice Kenneth Yegan of Div. Six authored the opinion. It affirms the Jan. 3, 2024 “findings and order after hearing,” by San Luis Obispo Superior Court Judge Matthew Guerrero.
“Based on the limited record provided by Father, we conclude Father was not denied due process,” Yegan declared, continuing:
“Mother’s Request sought joint physical custody of Daughter. This placed Father on notice that physical custody of Daughter was at issue.”
Father’s View
Yegan rejected contrary reasoning put forth by Santa Ana attorney Lisa R. McCall, the attorney for the father. She said in her opening brief on appeal:
“Without notice, or even a request by Respondent Gabrielle Kilpatrick, the trial court changed physical custody of the parties’ almost eight-year-old minor child…, sua sponte, ordering a de facto move-away of the child from her long-established home with Petitioner Ryan Kilpatrick and her three siblings in El Dorado County, to Respondent Gabrielle Kilpatrick’s home in San Luis Obispo. This drastic order, made absent a noticed hearing, resulted in a denial of due process.”
The parties had signed a marital settlement agreement on Dec. 2020. It says that the father “shall have sole legal and sole physical custody of the parties’ minor child.”
This was in light of mental problems experienced by the mother.
On Oct. 12, 2021, Gabrielle Kilpatrick sought a modification of the judgment, which had incorporated terms of the settlement agreement. Complaining of her ex-husband blocking visits with the child, she requested a “normalized” joint legal and physical custody arrangement entailing unsupervised extended weekends, holidays, and summer visitation rights.
Sole Custody Unrequested
McCall’s brief protests:
“Instead of simply ‘normalizing’ the visitation schedule as requested by Gabrielle, the court unilaterally ordered a move-away of the minor child…from her long-established custodial arrangement with her father, to reside with her mother in San Luis Obispo, in spite of the fact that Gabrielle had never requested sole physical custody or a move of the child’s residence or school.”
She cited the 1998 Fourth District Court of Appeal decision in in Guardianship of Kassandra H. There, Presiding Justice David Sills (now deceased) wrote:
“[C]ontinuity and stability in a child’s life most certainly count for something….Children are not dogwood trees, to be uprooted, replanted, then replanted again for expediency’s sake….The law of guardianship necessarily entails higher standards than those applicable to a pawn shop. The idea that children may be temporarily deposited in the hands of some bailee to be recovered at will—like an old lamp that one doesn’t know what to do with, so one puts it in storage—is contradicted by the cases and common experience.”
McCall commented in her reply brief:
“While the family court has broad discretion to make custody and visitation orders in the best interest of children, its discretion is not unfettered. The rules generally applicable to other civil courts still apply to family law, and its powers are limited by the scope of the pleadings.”
Yegan’s Opinion
Yegan said that Ryan Kilpatrick forfeited his due-process claim by not raising it in the trial court. He rebuffed the father’s assertion that he preserved it on Dec. 14, 2023—after the Nov. 6, 2023 tentative ruling and before the Jan. 3, 2024 judgment—by seeking a writ in the Court of Appeal asserting a due-process violation. The justice responded:
“The petition was summarily denied. Filing a writ petition in the Court of Appeal is not a substitute for objecting to a tentative decision in the trial court.”
Addressing the merits, nonetheless—“[o]ut of an abundance of caution”—he wrote:
“Even if appellant was ‘surprised’ by the trial court’s tentative ruling, it put him on adequate notice and he could have raised his due process contentions in the trial court by simply objecting to the sole custody ruling in some manner.”
Evidentiary Hearing
Acknowledging that an evidentiary hearing is sometimes warranted in a move-away case, Yegan said:
“But this is not a move-away case. Mother has not decided to move to a different location. She continues to reside in San Luis Obispo County, where the parties and Daughter originally resided before the dissolution of the marriage.
“Father, not Mother, committed a ‘move away.’ Father declared that he and Daughter had relocated to El Dorado County in July 2021. According to the trial court’s November 6, 2023 ruling, this was a ‘unilateral relocation [from San Luis Obispo County] to El Dorado County.’ Father ‘admitted that he did not obtain a move away order from the court prior to relocating with the minor child.’ ”
Yegan added:
“The parties’ declarations established the basic facts and Father’s own conduct placed Daughter’s county of residence in issue. Father should have known that, if Mother was granted sole physical custody, Daughter would be moved to Mother’s home in San Luis Obispo County. Even if Mother was granted joint physical custody as she had requested, Daughter would still live a significant part of the year at Mother’s home….This provided Father with sufficient notice of a potential change in Daughter’s residence to satisfy due process. We therefore reject Father’s claim that he was denied due process because the court failed to conduct an evidentiary hearing on a potential move away.”
No Siblings
The jurist said the case does not involve the child being separated from siblings, pointing out:
“…Father misstates the facts underlying his contention. Two of the three children with whom Daughter had lived were not her ‘siblings.’ They were her stepsiblings—the offspring of Father’s new wife and another man….The third child was Daughter’s half-sibling, i.e., the offspring of Father and his new wife.”
He commented:
“Appellant cites no authority for the proposition that compelling circumstances must justify the separation of half- siblings m the absence of evidence as to the strength of the bond between the half-siblings.”
The case is Marriage of R.K. & G.K., 2025 S.O.S. 2131.
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