Filed 10/16/19; Certified for Publication 11/8/19 (order attached)




              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                   FOURTH APPELLATE DISTRICT

                                              DIVISION THREE


In re Marriage of SCOTT E. McKEAN and
TANYA McKEAN.

SCOTT E. McKEAN,
                                                                     G055601
    Appellant,
                                                                     (Super. Ct. No. 09D004987)
         v.
                                                                     OPINION
TANYA McKEAN,

    Respondent.



                  Appeal from an order of the Superior Court of Orange County, Lon F.
Hurwitz, Judge. Reversed.
                  Masson & Fatini, Richard E. Masson, Susan M. Masson, for Appellant.
                  Scott E. McKean, in pro. per.; and J. Michael Jacob for Respondent.
              Tanya McKean appeals from the trial court’s order granting sole legal and
physical custody of her two younger children in favor of their father, Scott McKean.
      1
Tanya claims the court abused its discretion by modifying the parties’ custody order
absent sufficient evidence of changed circumstances. Specifically, Tanya asserts the
court erred when it determined that by granting her sole legal and physical custody of her
severely disabled daughter, she was rendered incapable of maintaining joint legal and
physical custody of her two younger children. We agree with Tanya, reverse the court’s
order, and remand the matter for proceedings consistent with this opinion.
                                          FACTS
              We incorporate from our prior opinion the following summary of the
underlying facts: “In June 2009, Scott filed a petition for dissolution of his 12-year
marriage to Tanya. In 2004, Tanya and the couple’s three young children were in a
horrible car accident when another driver ran a red light. Their oldest daughter,
Cheyenne, was killed. Their daughter Si. suffered massive head injuries and was left
with permanent major brain damage that necessitates constant medical attention and
therapy. The couple had another daughter, Sa., and their son, W., was born in March
2006. In the legal action following the car accident, Si. received a settlement that
provides $20,000 a month for her treatment, therapy, and caregivers. Tanya received a
settlement of $2.4 million, and Scott received a settlement of $1.2 million. [¶] Sadly, the
accident did more than take the life of one child and devastate the life of another—it left
in its wake the eventual destruction of Scott and Tanya’s marriage. The record is replete
with accusations and recriminations leveled by each demonstrating the parties are utterly
unable to agree on even the smallest of matters when it comes to Si.’s care, and to the
parenting and custody of the children.” (In re Marriage of McKean (Apr. 27, 2012,
G045511) [nonpub. opn.].)
1
              We refer to the parties by the first names for clarity and intend no
disrespect. (In re Marriage of Witherspoon (2007) 155 Cal.App.4th 963, 967, fn. 2.)

                                             2
              The parties have been engaged in litigation for more than a decade. There
have been numerous orders made, challenged, and modified with regard to custody and
visitation issues. As pertinent to this appeal, in 2015 the trial court issued a custody order
(2015 order). The 2015 order granted Tanya sole legal custody of Si., but granted Tanya
and Scott joint physical custody of Si. It further granted joint legal and physical custody
of Sa. and W. The court noted “there seems to be a bond with all three (3) minor
children, and the court thinks it should be equal time with [Scott] and [Tanya].”
              In 2016, Tanya filed an application and request for order seeking
modification of the time share for all of the children (2016 request). Specifically, Tanya
sought sole physical custody of S., reasonable visitation with Si. for Scott, and visits with
Sa. and W. for Scott on alternate weekends and a mid-week dinner visit. Scott’s response
to Tanya’s 2016 request (2016 response) sought to maintain the current physical custody
order as to all three children, maintain the current legal custody order as to Sa. and W.,
and award Scott sole legal custody of Si. or in the alternative appoint a medical guardian
to make decisions as to Si.’s healthcare. Neither party sought to change the 2015 order as
to the legal or physical custody of Sa. and W.
              After trial, the court issued its findings and order after hearing (2017 order).
It awarded custody as follows: sole legal and physical custody of Si. to Tanya; sole legal
and physical custody of Sa. and W. to Scott; visitation with Si. by Scott, as arranged
between the parties in writing; and visitation with Sa. and/or W. by Tanya, as arranged
between the parties in writing.
              In support of its decision to grant Tanya sole legal and physical custody of
Si., the trial court found that “[t]he parties cannot co-parent.” It further determined
“parallel parenting” was not possible given Si.’s medical needs, and the parties’ inability
to communicate was “terribly deleterious to the best interest of [Si.]”
              The trial court identified three primary factors in support of its decision to
grant Scott sole legal and physical custody of Sa. and W. First, the court concluded

                                              3
granting Tanya sole legal and physical custody of Si. rendered her incapable of being
“sole custodial or even joint custodial of [Sa.] and [W.] when she is the sole custodial . . .
of [Si.]” It explained, “The [c]ourt finds the notion of [Tanya] being sole custodial or
even joint custodial of [Sa.] and [W.] when she is the sole custodial or if she is the sole
custodian of [Si.] is a real problem. That is not going to work.” In support of this, the
court identified one specific event, where Tanya left Sa.’s dance team workshop in Las
Vegas early when Si. suffered a seizure while under Scott’s care. “At the first sign that
[Si.] may have a problem [Tanya] abandons [Sa.], and the [c]ourt can come up with no
other word but abandonment.” The court determined this isolated event mandated that
Tanya could not serve as joint custodian of Sa. and W., while sole custodian of Si.
Testimony about the incident demonstrated Tanya left Sa. in the care of her trusted dance
teacher to ensure she would not miss the rest of the workshop.
               Second, the trial court found Si.’s extraordinary emotional, medical, and
educational needs created compelling circumstances requiring the court to separate the
siblings in terms of custody and visitation. Third, the court negated any bond between
the children on the grounds that “bonding runs two ways,” and Si.’s handicap rendered
her incapable of recognizing Sa. and W., and incapable of providing Sa. and W. with any
emotional support. The court expressed concern that any such “bonding” would simply
be the result of Sa. and W.’s parentification, i.e., the requirement they “parent” Si. while
in Tanya’s care.
               The trial court acknowledged neither party supported or requested
separating the three children. It further stated the “orders are harsh” and “not optimum
for all of the children . . . [b]ut, in this situation the court must look to what is least
deleterious for the children.”




                                                4
                                       DISCUSSION
              Tanya appeals from the 2017 order granting Scott sole legal and physical
                       2
custody of Sa. and W. She contends the 2017 order constituted an abuse of discretion
because it was unsupported by evidence of changed circumstances. We agree. The 2017
order must be reversed and remanded.
                                          3
              Family Code section 3087 allows a parent to request modification of a
joint custody order. “An order for joint custody may be modified . . . if it is shown that
the best interest of the child requires modification . . . of the order.” (§ 3087.)
“California’s statutory scheme governing child custody and visitation determinations is
set forth in the Family Code . . . . Under this scheme, ‘the overarching concern is the best
interest of the child.’ [Citation.] [¶] For purposes of an initial custody determination,
section 3040, subdivision (b), affords the trial court and the family ‘“the widest discretion
to choose a parenting plan that is in the best interest of the child.”’ [Citation.] When the
parents are unable to agree on a custody arrangement, the court must determine the best
interest of the child by setting the matter for an adversarial hearing and considering all
relevant factors, including the child’s health, safety, and welfare, any history of abuse by
one parent against any child or the other parent, and the nature and amount of the child’s
contact with the parents. [Citations.] [¶] Once the trial court has entered a final or
permanent custody order reflecting that a particular custodial arrangement is in the best
interest of the child, ‘the paramount need for continuity and stability in custody
arrangements—and the harm that may result from disruption of established patterns of


2
              Tanya concedes Si.’s custody is not at issue on appeal because she turned
18 years old during the pendency of this appeal and is no longer under the jurisdiction of
the family law division of the trial court. (In re Marriage of Jensen (2003) 114
Cal.App.4th 587, 595.) We infer from the record and the parties’ briefing Si. continues to
reside with Tanya.
3
              All further statutory references are to the Family Code.

                                              5
care and emotional bonds with the primary caretaker—weigh heavily in favor of
maintaining’ that custody arrangement. [Citation.] In recognition of this policy concern,
we have articulated a variation on the best interest standard, known as the changed
circumstance rule, that the trial court must apply when a parent seeks modification of a
final judicial custody determination. [Citations.] Under the changed circumstance rule,
custody modification is appropriate only if the parent seeking modification demonstrates
‘a significant change of circumstances’ indicating that a different custody arrangement
would be in the child’s best interest. [Citation.] Not only does this serve to protect the
weighty interest in stable custody arrangements, but it also fosters judicial economy.
[Citation.]” (In re Marriage of Brown & Yana (2006) 37 Cal.4th 947, 955-956.)
               “The changed-circumstance rule . . . provides, in essence, that once it has
been established that a particular custodial arrangement is in the best interests of the
child, the court need not reexamine that question. Instead, it should preserve the
established mode of custody unless some significant change in circumstances indicates
that a different arrangement would be in the child’s best interest[s].” (F.T. v. L.J. (2011)
194 Cal.App.4th 1, 15.) We review a custody order for abuse of discretion. (In re
Marriage of Burgess (1996) 13 Cal.4th 25, 32.) “This discretion may be abused by
applying improper criteria or by making incorrect legal assumptions.” [Citation.] (Jane
J. v. Superior Court (2015) 237 Cal.App.4th 894, 901.)
              In order to demonstrate a change in circumstances warranting modification
of a final custody order, the moving party bears the burden of persuasion to show how the
circumstances have changed and why the modification is in the children’s best interests.
(Burchard v. Garay (1986) 42 Cal.3d 531, 536-537.) The moving party must make a
“‘threshold showing of detriment’” before an existing final custody order may be
modified in the children’s best interest. (Christina L. v. Chauncey B. (2014) 229
Cal.App.4th 731, 738.) The court’s decision must be based on the standards governing
all custody determinations. (§§ 3011, 3020, 3040.) For the children’s best interests, the

                                              6
primary concerns are the children’s health, safety, and welfare. (Ibid.) Furthermore, so
long as consistent with the children’s best interest, the preference is for “frequent and
continuing contact” with both parents. (Ibid.)

              The crux of the custody battle in this tragic case was the legal and physical
custody of Si. However, Si.’s custody is not the subject of this appeal. Curiously, while
neither party requested a custody modification as to Sa. and W., the trial court sua sponte
awarded sole legal and physical custody of the pair to Scott. The court explained by
granting Tanya sole legal and physical custody of Si., Tanya was incapable of being “sole
custodial or even joint custodial of [Sa.] and [W.] when she is the . . . sole custodian of
[Si.]” In support of its decision, the court cited to one specific event when Tanya
returned early from Sa.’s dance workshop in Las Vegas when Si. suffered a seizure while
in Scott’s care.
              The trial court, without legal or evidentiary support, referred to the event as
“abandonment” of Sa. It apparently equated the event as posing a detriment to Sa.
sufficient to warrant a modification of the 2015 order. We sympathize with Tanya’s
difficult choice of staying with Sa. or returning home to check on Si.’s serious medical
condition. Contrary to the court’s description of the event, however, it appears Tanya did
everything a parent could be expected to do under the circumstances. Tanya did not
simply leave Sa. behind, or even make her miss her workshop. Instead, Tanya arranged
for Sa. to be cared for and brought home by her trusted dance instructor. This isolated
incident lends no support for the court’s conclusion Tanya is unable to maintain custody
of Sa. and W. while she is the sole custodian of Si. There was no threshold showing of
detriment warranting a modification. This is not surprising because there was no moving
party—neither side requested a modification as to the custody of Sa. and W.
              Contrary to the trial court’s finding of detriment warranting modification,
the record is replete with Tanya’s commendable achievements as a mother to all three
children. The evidence at trial demonstrated Tanya appropriately, and indeed admirably,

                                              7
balanced time constraints posed by Si.’s severe disabilities with the needs of her able
bodied younger children. Tanya does not attempt to provide Si.’s required 24-hour care.
She hired two to three nurses to assist with caring for Si. and her medical needs. This
assistance with Si. allows Tanya to be involved with Sa. and W. It was undisputed that
Sa. and W. are healthy, happy, and well-adjusted children. Testimony showed Tanya
spends “alone time” with Sa. and W. and she tries to find time for each of the children for
a “one-on-one” every single day. Tanya participated at school with all three children, and
was room mom every year for the children in elementary school. She has taken all
children on family trips and sleep overs with friends. She attended baseball games for
W., dance classes and recitals for Sa., took Sa. shopping, hosted Cub Scout activities for
W., and more. Tanya ensured the younger children participated in family activities and
spent time with their friends. Scott did not argue otherwise.
              Nothing in the record demonstrates the trial court weighed Sa.’s and W.’s
interests in the stability of their current custodial arrangement. The court did not address
the potential harm to Sa. and W. from losing Tanya as a custodial parent. The court
lacked any evidence Tanya’s care for Si. and her serious medical needs resulted in
deficient care of Sa. and W.
              Tanya also contends the trial court erred because it failed to properly
                                                                       4
consider the siblings’ bond before separating the children. We agree.
              We recognize California public policy that “the sibling bond should be
preserved whenever possible.” (In re Marriage of Heath (2004) 122 Cal.App.4th 444,
449-450 (Marriage of Heath).) Absent evidence of compelling circumstances, including
extraordinary emotional, medical or educational needs, an order separating siblings

4
              While Si. is now over 18 years old, at the time of trial she was a minor.
Evidence demonstrated Si.’s mental capacity is akin to that of a one-year-old to 18-
month-old child. She will likely remain under Tanya’s care as an adult. So Si., while
technically an adult, functions more like a younger sibling to Sa. and W. Therefore, we
consider the trial court’s bonding analysis despite Si.’s age.

                                             8
between custodial households ordinarily will be reversed as detrimental to the children’s
best interest. (Marriage of Williams (2001) 88 Cal.App.4th 808, 814-815 (Williams).)
The trial court must consider the children’s interest in having a meaningful opportunity to
share each other’s lives and the potential detriment to them from being separated.
(Marriage of Heath, supra, 122 Cal.App.4th at pp. 449-450.)
              ‘“Children are not community property to be divided equally for the benefit
of their parents. . . . At a minimum, children have a right to the society and
companionship of their siblings.”’ (Marriage of Heath, supra, 122 Cal.App.4th at p.
449.) Furthermore, a developmental disability is not a per se compelling circumstance
warranting separation. “[T]he bond between siblings should not be severed without a
careful analysis of the actual impact of one child’s condition on the other, as well as the
impact of separation on both children.” (Id. at pp. 450-451.)
              The trial court determined Si.’s medical condition was evidence of
compelling circumstances warranting separation of the siblings. It ignored established
precedent that a disability is not automatically evidence of compelling circumstances.
The court determined because Si. could not recognize her siblings as such, the sibling
bond was inapplicable. It further expressed concerns about the “parentification” of Sa.
and W. However, the evidence did not support these concerns. To the contrary, Si.’s
neurologist testified she has the cognitive ability to appreciate her social surroundings,
recognize her parents, and the ability to feel emotions such as fear and happiness. Ample
testimony supported the children’s bond with one another. The evidence also showed
both Sa. and W. do funny things for Si. just to make her laugh. Similarly, there was no
evidence presented as to the “parentification” of Sa. and W. No custody evaluation was
ordered. The 2017 order instead appeared to be supported by the court’s speculation
about the dynamics between the siblings. This was insufficient.
              In Marriage of Heath, the father in a dissolution proceeding sought to
separate custody of the couple’s two sons. (Marriage of Heath, supra, 122 Cal.App.4th

                                              9
at p. 448.) One son had autism and the other mimicked his brother’s behavior. (Id. at pp.
447-448.) The trial court ordered the sons separated, even though the record was silent as
to the relationship between the children, the true impact, if any, of one brother’s autism
on the other, and the impact of losing the sibling bond. (Ibid.) “No testimony was taken,
no custody evaluation was ordered [citation], no expert analysis was undertaken. Instead,
the court relied on speculation by the father and children’s counsel, and the court’s
‘hunch.’ The law, however, requires proof of compelling circumstances, based on
evidence that the family law court can evaluate and this court can review. [Citation.]
Speculation by lawyers, conflicting argument on behalf of parents, and ‘hunches’ of
judges do not suffice. Even on the deferential abuse of discretion standard, this order
cannot be affirmed.” (Id. at p. 450.)
              Similar to Marriage of Heath, the record is devoid of any negative impact
on Sa. and W. caused by Si. and her medical conditions. Instead, there are numerous
references to the strong bond between the three children. Contrary to the trial court’s
comments, there was no evidence Si. could not participate in a sibling relationship.
Admittedly, such a relationship would not function as a “traditional” older sister with her
younger siblings, but that is not, and should not, be the test. The court is not to judge a
familial relationship based upon a preconceived notion of what a “normal” sibling
relationship looks like. Testimony demonstrated the siblings had mutual bonds and Si.’s
cognitive state was akin to that of a one-year-old to 18-month-old child. Children of that
age indeed have relationships with their families, and dismissing the impact of separating
the siblings based purely on Si.’s disability was error. Furthermore, there was
insufficient evidence of the supposed “parentification” of Sa. and W. Given the court’s
failure to apply the proper legal standards and its application of assumptions unsupported
by the evidence, we reverse the 2017 order.




                                              10
                                      DISPOSITION
              The trial court’s 2017 order granting sole legal and physical custody of Sa.
and W. to Scott is reversed. The 2015 order is reinstated as it pertains to Sa.’s and W.’s
custody, without prejudice to either party seeking modification of the 2015 order based
upon any changed circumstances that may have arisen during the pendency of this appeal.
Tanya shall recover her costs on appeal.




                                                 O’LEARY, P. J.

WE CONCUR:



FYBEL, J.



IKOLA, J.




                                            11
Filed 11/8/19




                              CERTIFIED FOR PUBLICATION

                IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                           FOURTH APPELLATE DISTRICT
                                  DIVISION THREE

In re Marriage of SCOTT E. McKEAN and
TANYA McKEAN.

SCOTT E. McKEAN,
                                                        G055601
    Appellant,
                                                        (Super. Ct. No. 09D004987)
        v.
                                                        ORDER GRANTING REQUEST
TANYA McKEAN,                                           FOR PUBLICATION

    Respondent.



                  The Association of Certified Family Law Specialists has requested that our
opinion filed October 16, 2019, be certified for publication. It appears that our opinion
meets the standards set forth in California Rules of Court, rule 8.1105(c)(4), (c)(6), and
(c)(7). The request is GRANTED.
                  The opinion is ordered published in the Official Reports.



                                                    O’LEARY, P. J.

I CONCUR:



IKOLA, J.
