Filed 6/27/16 Marriage of Aadam and Suttle CA2/7
Received for posting 6/28/16
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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

                                     SECOND APPELLATE DISTRICT

                                                DIVISION SEVEN


In re Marriage of MUHAMMAD S.A. and                                  B263894
LATIA S.S. AADAM.
                                                                     (Los Angeles County
                                                                     Super. Ct. No. ND068256)

MUHAMMAD S.A. AADAM,

         Respondent,

         v.

LATIA SUTTLE,

         Appellant.




         APPEAL from a judgment of the Superior Court of Los Angeles County,
Ana Maria Luna, Judge. Affirmed.
         Talitha Davies Wenger; Latia Suttle, in pro. per., for Appellant.
         No appearance for Respondent.
                                        _________________________
       Latia Suttle appeals from the May 5, 2015 judgment on reserved issues awarding
                                     1
to Muhammad S.A. Aadam, Latia’s former husband, sole legal and physical custody of
their five-year-old child, Landon, and restricting Latia to limited supervised visitation
with Landon. Latia contends the trial court failed to consider the mandatory factors
                                         2
identified in Family Code section 3011 in determining the best interest of the child;
disregarded the mandate of section 3047 that the failure of a party to comply with
custody and visitation orders due to military duty shall not, by itself, be sufficient to
justify a modification of a custody or visitation order; ignored a domestic violence
protective order she obtained in Indiana and registered in Los Angeles Superior Court;
and improperly precluded her participation in several phases of the trial. She also argues
the court’s factual findings are not supported by the evidence. We affirm.
                  FACTUAL AND PROCEDURAL BACKGROUND
       1. Dissolution of the Marriage
       Muhammad was on active duty in the United States Navy when he and Latia
married on July 3, 2009. He subsequently retired as a petty officer second class and was
looking for work as a police or correctional officer at the time of trial. Latia served in the
United States Army. At the time of the dissolution proceedings she had been on a
temporary disability retirement list for several years and was periodically reevaluated to
determine whether she was fit to return to active duty or would be permanently retired as
disabled.
       Muhammad petitioned for the dissolution of the marriage on March 21, 2012. The
parties had been married for less than three years and had one child, Landon, born in July
2010. On September 15, 2014, as an initial part of its trial of the matter, the court entered



1
        As is customary in family law cases, we refer to the parties by their first names for
clarity. Latia’s former name, Suttle, was restored in the judgment of dissolution (status
only) entered on September 30, 2014.
2
       Statutory references are to this code unless otherwise indicated.
                                               2
a judgment of dissolution without objection, reserving jurisdiction on further issues
including child custody.
       2. Temporary Custody Orders
       In a temporary custody order on June 19, 2013 Latia was awarded legal and
primary physical custody of Landon. Muhammad was granted custodial time with the
child one day each weekend from 9:00 a.m. to 3:00 p.m. Shortly thereafter, Latia sought
court authorization to relocate with Landon to Indiana. On July 22, 2013 the parties, at
the time both represented by counsel, entered into a detailed stipulation, approved by the
court, for joint legal custody with Latia to have primary physical custody of Landon in
Indiana. The stipulation and court order provided for visitation by Landon with
Muhammad during specified holidays and portions of each summer in California,
including the balance of the then-current summer (through August 21, 2013) after which
Muhammad would take the child to Latia in Indiana. Muhammad was ordered to pay
monthly child support of $933 commencing August 15, 2013.
       Latia moved with Landon to Indiana prior to August 21, 2013 and did not make
the child available to visit with Muhammad during the scheduled 2013 summer period.
Latia also failed to provide transportation for Landon to travel to California for holiday
visits with Muhammad during the latter part of 2013 and early 2014, as required by the
parties’ stipulation and court order. In documents filed with the court Latia asserted
Muhammad had failed to comply with the requirements of the July 22, 2013 stipulation
permitting her to verify his residence address and to visit and examine the home before
allowing Landon to visit him.
       3. The Indiana Domestic Violence Restraining Orders
       On June 3, 2014 Latia filed two ex parte petitions for domestic violence
restraining orders in the superior court in Hamilton County, Indiana, one intended for her
own protection (29D06-1406-PO-005308) and the second to protect Landon
(29D06-1406-PO-005309). On June 4, 2014 Judge Gail Z. Bardach of the Hamilton
County Superior Court found that Muhammad represented a credible threat to the safety

                                             3
of Latia and entered an order in case no. 29D06-1406-PO-005308 enjoining him from
threatening to commit or committing acts of domestic violence against Latia, Landon and
Dennis and Pearl Rutledge (Latia’s parents) and to stay away from Latia’s residence in
Fort Wayne, Indiana. The order also prohibited Muhammad from contacting or directly
                                        3
or indirectly communicating with Latia. The ex parte order stated it would remain in
effect for two years (until June 3, 2016) but also advised Muhammad he had the right to
request a hearing on the issues in the case. The order was personally served on
Muhammad on June 30, 2014. An order to register the Indiana order with the Los
Angeles Superior Court for entry through the California Law Enforcement
Telecommunication System (CLETS) as an out-of-state protective/restraining order was
signed and filed on August 8, 2014.
       Concurrently with issuing the ex parte domestic violence restraining order on
June 4, 2014, Judge Bardach transferred the matter to the Los Angeles Superior Court,
which the court explained had jurisdiction of the parties in their dissolution action. The
transfer order provided, “This Court’s Ex-Parte Order for Protection does not alter the
custody or parenting time right of the parties. [Citation.] Any order of the proper court
regarding custody, parenting time or possession or control of property shall supersede the
order of protection issued by this court. [Citation.] [¶] This transfer in no way affects
the expiration date of the separate Ex-Parte order for Protection issued by this Court.”
       4. The June 30, 2014 Trial Setting Conference
       At a trial setting conference on June 30, 2014 the court directed Latia, who was
now self-represented and participating by telephone, to comply with the July 22, 2013
stipulation and order for visitation from July 16 through August 16, 2014 by having
Landon available for Muhammad to pick up on July 16, 2014 at the Fort Wayne
International Airport. Latia responded she was facing financial hardship because
Muhammad had permitted the destruction of her personal property left in the former


3
       No relief was granted in case no. 29D06-1406-PO-005309.
                                             4
family residence, again referred to Muhammad’s failure to provide the required
documentation regarding his residence and also told the court she had medical
appointments to reevaluate her military disability and surgery scheduled for July 16,
2014. Latia also insisted having contact with Muhammad to deliver the child would
                                                                                        4
violate the domestic violence restraining order issued in Indiana earlier that month.
       With respect to the restraining order, the court stated it had attempted to
communicate directly with Judge Bardach but, to date, had only reached her court clerk.
The court’s understanding was that the Indiana court had deferred to the California
family law court on all matters relating to visitation and would modify the restraining
order to conform to the orders of the California court. The court cautioned Latia, “If the
child is not there, there’s going to be serious problems. I’ll probably entertain an ex parte
request to change the custody and visitation and bring that child back here pending trial.”
Although Muhammad traveled to Indiana on July 16, 2014, Latia did not comply with the
order; and no exchange took place.
       At the conclusion of the conference the court set the trial date. The court first
asked Latia when she could travel to California for the trial. Latia responded, “I’m not
4
       Latia advised the court, “On July 16, I’m supposed to get reevaluated as far as the
military with my disability. . . . So, that date, I have surgery scheduled, Ma’am. First,
there’s financial hardship because he destroyed all my property. Second, I have medical
appointments and surgery scheduled, and there’s the domestic violence issue with
threats.” Notwithstanding her subsequent descriptions of her comments at this hearing, at
no time did Latia advise the court she was under military orders to be at Dwight D.
Eisenhower Army Medical Center, Fort Gordon, Georgia on July 16, 2014 for the
medical reevaluation.
        The June 11, 2014 Department of the Army memorandum directing Latia to report
to Fort Gordon on July 16, 2014 was first submitted to the court as an attachment to a
three-page declaration filed by Latia on August 14, 2014—four weeks after the court-
ordered exchange date—in which she expressed her concerns about the orders made at
the June 30, 2014 trial setting conference. The declaration was not part of a motion or
response to a motion for new or revised orders and, although filed, does not appear to
have been brought to the attention of the court at that time. The memorandum was
marked as Exhibit 101 on September 15, 2014, the first day of trial on the reserved
issues.
                                              5
available to show up there in person myself or with child, because of financial reasons,
which I have already stated, because of health reasons that I already stated.” The court
replied, “I’m going to pick a trial date around you. I have given you the opportunity to
tell me when you can be here.” The court then scheduled trial for September 15, 2014.
Latia said she was not available on that date because she had another surgery scheduled.
                                                                    5
The court authorized Latia’s participation at trial by telephone.
       5. Trial of the Custody and Visitation Orders
       Trial of the reserved issues of custody and visitation, child support and division of
community property and debts began on September 15, 2014. Muhammad was self-
represented. Latia was again represented by counsel. Technical difficulties prevented
Latia’s participation by telephone although she had attempted to call into court; her
counsel did not object to the trial proceeding without her.
       At the outset of the trial the court notified the parties it had finally spoken directly
to Judge Bardach, who had issued the Indiana domestic violence restraining order. Judge
Bardach explained she had transferred both cases in their entirety to California.
Accordingly, the extent to which the order continued in effect would be determined in the
family law proceedings. The court also stated Judge Bardach had explained under
Indiana law a peaceful exchange of the child, as had been ordered to take place on
July 16, 2014, would not have violated the restraining order, notwithstanding its no-
contact provisions.
       Muhammad testified he had originally agreed to allow Landon to live with Latia in
Indiana because he believed she intended to cooperate with him in a positive, coparenting
relationship. Instead, she had frustrated entirely his ability to see his child, which
prompted him to seek the change in custody and visitation orders. Muhammad denied
ever threatening Latia and insisted he had never acted violently toward her or Landon.

5
       On September 15, 2014 Latia requested a continuance of the trial. The court
indicated it would grant the request if Latia would bring Landon to California for a visit
with Muhammad. After discussing the matter with her attorney, Latia declined the offer.
                                               6
He acknowledged he had been diagnosed as a sex addict and had been ordered by his
superiors in the military to attend classes to address the problem. He testified he was not
currently involved in multiple relationships and would put Landon first if he was granted
primary custody of the child, taking him to his mosque and making sure he was properly
enrolled in school. In response to a question from the court, Muhammad said he would
not expose Landon to someone he was dating until it became a serious and committed
relationship.
       On cross-examination Muhammad identified a memorandum from the Department
of the Army directing Latia to appear in Georgia for a medical examination on July 16,
2014, the date the court had ordered Latia to make Landon available at the Fort Wayne
airport to travel to Los Angeles with Muhammad. (The document was marked as exhibit
101.) Muhammad pointed out the notice was dated June 11, 2014 and asserted Latia had
ample time to notify the court that alternative arrangements needed to be made. Latia’s
counsel spent considerable time questioning Muhammad about the lease arrangements for
the residence where Landon was to visit him in July 2013 and the removal and
                                                                    6
destruction of Latia’s property from the former family residence.
       Trial continued on September 30, 2014. Latia participated by telephone. Before
Muhammad’s cross-examination continued, one of his sisters, Talisa Lucas, testified on
behalf of Latia. Lucas testified Latia was a loving mother who was attentive to all of the
child’s needs. She indicated Landon had serious allergies that required careful
supervision and expressed her belief, based on observations when visiting the family, that
her brother did not know how to take care of Landon. Two additional witnesses, the
property manager for the former family residence and a friend and current roommate of
Muhammad, provided additional testimony regarding the issue of Latia’s property. Latia
then began her direct testimony via telephone.

6
        Because Latia’s appeal does not challenge any of the court’s orders regarding
support, expense reimbursement or the division of the parties’ property, no summary of
the testimony and argument regarding those issues is included.
                                             7
       Latia testified Muhammad was a sex addict who had multiple sexual partners
throughout the marriage. He had been ordered to attend classes for sex addiction in 2009
after he was diagnosed with a sexually transmitted disease. According to Latia,
Muhammad spent most of his time outside the home and had never cared for Landon on
his own. In her opinion Muhammad lacked the self-control necessary to act as Landon’s
primary caregiver. Latia also described Muhammad’s involvement with the sovereign
                                          7
citizen movement during their marriage. When she confronted him about this activity
and said she was going to report it to Navy Criminal Investigation Services, Muhammad
threatened he would kill both her and Landon if she did. In response to questioning by
the court, Latia said this threat had been made in April 2012, after Muhammad filed for
dissolution of their marriage but before he moved out of the former family residence.
       Trial was continued to November 3, 2014. On that date the court began by stating
it had learned, based on an ex parte application filed by Muhammad on October 22, 2014
and a subsequent order dated October 30, 2014 from the Indiana state court, that Latia
filed a verified petition to establish paternity and request for child support in Indiana on
September 22, 2014. That document, signed under penalty of perjury by Latia, asserted
she had not participated as a party or witness in any other litigation concerning the
custody of the child, she had no information of any pending custody proceeding
concerning the child, and she did not know of a person not a party to the Indiana
proceedings who claimed to have custody or visitation rights with respect to the child.
(As reflected in the minute order dated November 3, 2014, the October 30, 2014 order of
the Indiana magistrate was to dismiss the paternity action and vacate the trial date in the
action based on lack of jurisdiction.) “Based on the obvious perjury committed in the
Indiana action and the fact that this court needs to assess the credibility of the parties in


7
        “The sovereign citizen movement is a loose grouping of litigants, commentators,
and tax protesters who often take the position that they are not subject to state or federal
statutes and proceedings.” (United States v. Weast (5th Cir. 2016) 811 F.3d 743, 746,
fn. 5.)
                                               8
order to make custody and visitation orders which are in the best interest in the child,” as
well as the fact Latia had failed to comply with court orders regarding visitation, the court
withdrew its permission for Latia to provide testimony telephonically and ordered her to
appear in court and to bring Landon with her to California if she intended to continue
giving testimony in the case. The matter was continued to November 20, 2014. The
court also noted that the restraining order proceedings had been transferred from Indiana
to California and advised Latia that she would need to appear in person to testify in
support of continuing the temporary order if she wanted it to remain in effect.
       Before the court recessed, Latia advised the court she could not come to California
for both financial and health reasons. The court then ordered that no further testimony
would be received from Latia by telephone with regard to custody and visitation matters
in the case. Latia’s counsel requested an opportunity for Latia to reconsider her response
to the court’s directive.
       On November 20, 2014, with Latia’s counsel present in court and Latia on the
telephone, the court stated it had received and reviewed a declaration from Latia
explaining she lacked the financial means to travel to California and indicating health-
related problems prevented her from bringing Landon to California. The court reiterated
its November 3, 2014 ruling that it would not allow any additional telephonic testimony
because it could not assess credibility over the phone and because there were serious
issues of credibility bearing on the case. The court indicated it would be within its
discretion to strike all of Latia’s testimony under the circumstances but stated it was not
going to do that. “However, the weight that I give to the testimony she’s presented so far
is greatly reduced in light of the perjured documents submitted in Indiana.”
       Both sides rested, and the court heard argument from Muhammad and from
Latia’s counsel. Muhammad requested sole physical custody of Landon with joint legal
custody and a restriction that Latia’s visits occur in Los Angeles. He also asked the court
to cancel the protective orders Latia had obtained in Indiana, emphasizing that Latia had
not presented any evidence of threats or abuse during the trial in California. Latia’s

                                             9
counsel requested the court continue the prior custody and visitation orders in effect, but
limiting Muhammad’s visitation to seeing Landon in Indiana, rather than the
arrangements contained in the July 2013 stipulation and order. Counsel also urged the
court to continue the domestic violence restraining orders, asserting Latia had testified
that Muhammad had made threats to hurt her at various times during their relationship.
At the conclusion of the hearing the court submitted the matter, advising the parties,
“unless I have some other revelation,” it intended to award sole legal and physical
custody to Muhammad.
       6. The Court’s Notice of Ruling and Order Modifying Custody and Visitation
       On February 17, 2015 the court issued a detailed 14-page notice of ruling
containing its findings of fact and a lengthy discussion supporting its determination that
awarding sole legal and physical custody to Muhammad and limiting Latia to supervised
                                            8
visitation were in the child’s best interests. After making findings consistent with the
preceding summary of events, the court found, in part, that Latia had consistently failed
to comply with the court’s orders regarding visitation and had attempted to manipulate
court proceedings in Indiana to gain an advantage with regard to custody and visitation
orders relating to Landon. The court further found that Muhammad’s veracity greatly
outweighed Latia’s: “[T]he court finds that [Latia] lacks credibility in all respects and
declines to put any weight to the testimony she provided at trial.”
       Paragraph 1 of the Discussion began with the statement, in bold type, “The court
shall consider the child’s health, safety, and welfare.” (See § 3011, subd. (a).) The court
then explained its orders promoted the child’s health, safety and welfare because, as


8
       In its February 17, 2015 notice of ruling the court incorporated by reference its
November 3, 2014 minute order containing its decision to terminate Latia’s ability to
provide further testimony by telephone. In addition, the court took judicial notice of the
verified petition to establish paternity and support order, signed by Latia under penalty of
perjury on September 14, 2015, filed in Indiana state court on September 22, 2014, and
the October 30, 2014 order issued by Magistrate Trevino in the Allen County, Indiana
Circuit Court dismissing Latia’s petition.
                                                10
between the two parents, Muhammad “has demonstrated that he is the more child focused
parent. . . . [T]he court is assured by the fact that [Muhammad] has patiently and
consistently followed court orders which indicates a propensity towards parenting the
child in a manner consistent with a respect for authority. The court believes that as
between the two parties, [Muhammad] is most likely to conform his behavior so as to be
in compliance with the court’s orders as set forth below.”
       Paragraph 2 of the Discussion considered the allegations by Latia that Muhammad
had engaged in domestic abuse (see § 3011, subd. (b)(2)) and concluded the court would
not apply the presumption in favor of awarding custody to Latia under section 3044,
subdivision (a), “because the court finds that [Latia] fabricated the allegations of
domestic violence allegedly perpetrated by [Muhammad] in an attempt to gain a tactical
advantage as to custody of the minor child.” Paragraph 3 evaluated the nature and
amount of contact between the child and each parent (see § 3011, subd. (c)), and ruled
Landon had been prevented by Latia from bonding with his father. In addition,
“[r]egarding ethical, emotional, and intellectual guidance, the court finds these needs are
better met by [Muhammad]. [Muhammad] articulated how he plans to care for the child
once the child is back in California and that he wishes to foster a relationship between the
child and his mother.” The court then elaborated on its reasoning, “But for the conduct of
[Latia] during the pendency of this action, the court would have adopted verbatim the
orders contained in the Stipulation and Order dated July 22, 2013 as the final orders in
this matter. Given [Latia’s] continued disobedience of the current orders, the court finds
it necessary to impose orders which [Latia], to be sure, will find draconian but which can
be modified if [Latia] shows compliance and takes certain actions to address her obvious
hostility toward [Muhammad].”
       In a section labeled “Other Factors” the court found “a high level of conflict
emanating from [Latia] toward [Muhammad] which the court can only attribute to
[Latia’s] unresolved feelings about the breakup of the marriage. [Latia] has shown
difficulty co-parenting—making joint decisions and sharing appropriate information

                                             11
about the child—with [Muhammad]. This conflict will likely adversely affect the child.
The court is awarding [Muhammad] sole legal and physical custody as the testimony and
evidence reflect[] he is the parent who is least responsible for the conflict and best able to
make appropriate child-centered decisions. . . .”
       The notice of ruling also contained detailed orders requiring Muhammad and Latia
to share health care information for Landon (including with respect to his medications),
as well as school and daycare information, restricting travel with the child, prohibiting
use of alcohol or illegal substances prior to visits, limiting access by Landon to
computers and other electronic devices and scheduling weekly email contact between the
two parents to discuss issues relating to their child.
       Based on its finding that Latia’s allegations of domestic violence had been
fabricated, the court’s notice of ruling also denied any further restraining orders as may
have been requested by Latia and terminated, retroactive to June 3, 2014, any temporary
restraining orders that remained in effect.
       On April 6, 2015 the court mailed to Muhammad and to counsel for Latia its
proposed judgment, which incorporated the February 17, 2015 findings and orders (but
not the detailed discussion explaining the court’s reasoning). On April 22, 2015 Latia
filed objections to the February 17, 2015 notice of ruling and the April 6, 2015 proposed
judgment.
       The court entered its judgment on reserved issues on May 5, 2015, awarding sole
legal and sole physical custody of Landon to Muhammad, permitting Latia supervised
visitation in California of four hours per visit with the cost of the trained professional
monitor to be paid entirely by Latia and setting forth the detailed orders from the
February 17, 2015 notice of ruling regarding communications between Muhammad and
Latia. In its final judgment the court observed that Latia “would benefit from
successfully completing individual counseling aimed at management of her anger toward
[Muhammad] as well as child-focused decision making. The court concluded that [Latia]
has a significant problem with co-parenting. That finding played a major role in the

                                              12
court’s custody and monitored visitation orders.” The court indicated it “would probably
consider [Latia’s] attending and successfully completing a program consisting of
26 forty-five minute-to-one-hour sessions with a licensed therapist or another community
program approved either [by] the state of CA or State of Indiana to address these issues
[to be] a significant change of circumstances in changing its custody order. The Court
may be unwilling to change its orders until a counseling program is completed.”
       With respect to the domestic violence restraining orders, the court found the
matters had been transferred on June 4, 2014 to be heard as part of the parties’ dissolution
of marriage action. During the June 30, 2014 trial setting conference, Latia did not
request extension or resetting of any of the temporary restraining orders. The court
reiterated its view that the request for restraining orders “was a bold attempt to gain
leverage in a child custody and visitation dispute.” The court concluded that neither
                                                                                               9
Latia’s nor Landon’s safety would be jeopardized by the decision not to issue the orders.
                                       DISCUSSION
       1. Governing Law and Standard of Review
       “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
                                                                             10
custody determination, section 3040, subdivision (b) [now subdivision (c) ], 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
9
       Latia filed separate notices of appeal from the February 17, 2015 notice of
ruling/minute order, the April 6, 2015 proposed judgment and the May 5, 2015 final
judgment on reserved issues. Neither the February 17, 2015 order nor the April 6, 2015
proposed judgment is an appealable order.
10
       Former section 3040, subdivision (b), was redesignated without change as
subdivision (c), effective January 1, 2013. (See Stats. 2012, ch. 845, § 1.) It provides,
“This section establishes neither a preference nor a presumption for or against joint legal
custody, joint physical custody, or sole custody, but allows the court and the family the
widest discretion to choose a parenting plan that is in the best interest of the child.”
                                             13
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.”
(In re Marriage of Brown & Yana (2006) 37 Cal.4th 947, 955-956; accord, F.T. v. L.J.
(2011) 194 Cal.App.4th 1, 14; see § 3011, subds. (a) & (b).) On appeal custody orders
are reviewed for an abuse of discretion (In re Marriage of Burgess (1996) 13 Cal.4th 25,
32 [“[t]he precise measure is whether the trial court could have reasonably concluded that
the order in question advanced the ‘best interest’ of the child”]), and the trial court’s
factual findings are reviewed under the substantial evidence standard. (Id. at pp. 31-32;
accord, Montenegro v. Diaz (2001) 26 Cal.4th 249, 255.) We draw all reasonable
inferences in support of the court’s ruling and defer to the court’s express or implied
findings when supported by substantial evidence. (In re Marriage of Fajota (2014)
230 Cal.App.4th 1487, 1497; J.M. v. G.H. (2014) 228 Cal.App.4th 925, 935.)
       2. The Family Law Court Expressly Considered the Best Interest of the Child
          and Addressed the Mandatory Factors Identified in Section 3011
       Section 3011 identifies several factors the family law court must consider, among
any others it finds relevant, in making a determination of the best interest of the child in
                       11
custody proceedings.        Although Latia is correct the family law court in this case did not
actually cite section 3011, the detailed notice of ruling filed February 17, 2015 quoted its
relevant language and addressed each of the mandatory factors it describes for evaluating
the best interest of the child: the health, safety and welfare of the child (§ 3011,

11
       Section 3011 provides in part, “In making a determination of the best interest of
the child in a proceeding described in Section 3021, the court shall, among any other
factors it finds relevant, consider all of the following: [¶] (a) The health, safety, and
welfare of the child. [¶] (b) Any history of abuse by one parent or any other person
seeking custody against any of the following: [¶] (1) Any child to whom he or she is
related by blood or affinity or with whom he or she has had a caretaking relationship, no
matter how temporary. [¶] (2) The other parent. [¶] . . . [¶] (c) The nature and amount
of contact with both parents . . . .”
                                                14
subd. (a)); any history of abuse by one of the parents (§ 3011, subd. (b)); and the nature
                                                               12
and amount of contact with both parents (§ 3011, subd. (c)).        The court also considered
how best to provide continuity of attention, nurturing and care and the impact of the
conflict between Muhammad and Latia on Landon’s well-being. Latia’s contention,
repeated several times in her brief, that “[t]he court omitted any consideration of the
child’s best interests” and “did not even make one single best interest finding” is simply
wrong.
       3. The Court Did Not Disregard the Mandate of Section 3047
       Section 3047, subdivision (a), provides, “A party’s absence, relocation, or failure
to comply with custody and visitation orders shall not, by itself, be sufficient to justify a
modification of a custody or visitation order if the reason for the absence, relocation, or
failure to comply is the party’s activation to military duty or temporary duty, mobilization
in support of combat or other military operation, or military deployment out of state.”
Latia contends the court violated this provision by basing its decision to award sole legal
and physical custody to Muhammad on her failure to bring Landon to the Fort Wayne
airport on July 16, 2014, as the court had ordered on June 30, 2014, even though she
established at trial that she was required to report to Fort Gordon, Georgia for medical
reevaluation on that date. Latia’s argument fails for several reasons.
       First, it is by no means clear that the June 11, 2014 memorandum directing Latia,
who was no longer on active duty, to undergo a medical examination qualifies as
“activation to military duty or temporary duty” within the meaning of section 3047. To
the contrary, section 3047, subdivision (g)(1), defines “temporary duty” to mean “the
transfer of a service member from one military base to a different location, usually
another base, for a limited period of time to accomplish training or to assist in the
performance of a noncombat mission.” The order that Latia travel out-of-state from her

12
       Section 3011, subdivision (d), lists as an additional mandatory factor the habitual
or continual illegal use of controlled substances or abuse of alcohol. Neither Muhammad
nor Latia contended this factor had any relevance in the custody proceedings.
                                              15
home for an evaluation of her temporary disability appears to fall outside that definition.
And the memorandum directing her to be examined by physicians at Fort Gordon
certainly was not mobilization or military deployment as those terms are used in the
statute. (See § 3047, subd. (g)(1) & (2) [“deployment” involves the temporary transfer of
a member of the Armed Forces in active-duty status; “mobilization” involves the transfer
of a National Guard or other military reserve member to active-duty status].)
       Second, Latia’s repeated assertions to the contrary notwithstanding, the record
does not reflect that Latia advised the court she was under “military orders” to travel to
Georgia on the scheduled exchange date when the court entered its order, or that she
provided that information to the court before July 16, 2014 and attempted either to
reschedule the exchange or to seek the court’s permission for someone else (one of her
parents, for example) to complete it for her. As a result, Muhammad was misled into
incurring the expense of a pointless trip to Indiana.
       Third, and perhaps most importantly, whatever weight the court placed on Latia’s
failure to comply with its June 30, 2014 order, it was not the sole basis for the court’s
custody and visitation orders. As the court made plain, it was troubled by Latia’s failure
to comply with any of the visitation orders, beginning with the initial month-long visit in
July-August 2013 contemplated by the parties’ stipulation and order of July 22, 2013, and
was appropriately distressed by her initiation of a paternity and support action in Indiana
containing a perjured declaration that failed to disclose other pending litigation
concerning the custody of the child. Section 3047, if applicable at all, does not prohibit
the court from considering Latia’s conduct as one of several factors justifying the final
custody and visitation orders.
       4. The Court Did Not Ignore the Indiana Domestic Violence Restraining Order
       As discussed, on June 4, 2014 the superior court in Hamilton, Indiana issued an ex
parte domestic violence restraining order against Muhammad; the order was registered in
California on August 8, 2014 and entered through CLETS as an out-of-state
protective/restraining order. Far from ignoring the Indiana restraining order when

                                             16
making its custody and visitation determinations, as Latia contends, the family law court
was well aware of it and engaged in multiple attempts to contact the issuing court to
understand its scope and its impact, if any, on the custody and visitation issues pending in
California. After finally communicating directly with Judge Bardach, the family law
court explained to the parties that the protective order petitions had been transferred in
full to the Los Angeles Superior Court. The court discussed the question of the
restraining order in its February 17, 2015 notice of ruling, found that Latia fabricated her
claim that Muhammad had threatened her and Landon and concluded Latia had attempted
to use the Indiana proceedings to gain leverage in the custody battle. Because the court
terminated any still-existing restraining order, there was no violation of the requirements
of section 3031, subdivision (a), which directs the court to consider whether any
protective order is in effect that concerns the parties or the child and encourages the court
not to make a custody or visitation orders that are inconsistent with any valid, outstanding
protective or other restraining order.
       5. Latia Was Not Improperly Precluded from Participating in the Dissolution
          Proceedings
       Latia was unable to participate telephonically during the first day of trial on
September 15, 2014 due to technical difficulties. She was prohibited from testifying but
allowed to listen to the trial proceedings via telephone on November 20, 2014 after the
court ordered that any further testimony from her would have to be presented in person.
Neither event warrants reversal of the court’s custody and visitation orders.
       On the first occasion Latia’s counsel was present in court and fully aware that
Latia’s telephone connection could not be completed. He did not object to the court
proceeding with the trial in her absence. Accordingly, any claim of error has been
forfeited. (See In re Marriage of Hinman (1997) 55 Cal.App.4th 988, 1002 [“[f]ailure to
object to the ruling or proceeding is the most obvious type of implied waiver”]; see
generally Johnson v. Greenelsh (2009) 47 Cal.4th 598, 603 [issues not raised in the trial
court cannot be raised for the first time on appeal]; Kolani v. Gluska (1998)


                                             17
64 Cal.App.4th 402, 412 [failure to raise issue or argument in the trial court results in
forfeiture on appeal].)
       On the second occasion, after learning of Latia’s “obvious perjury” in her
paternity and support filing in Indiana, the court concluded Latia needed to testify in
person so the court could properly evaluate her credibility. Latia was then given more
than two weeks to make arrangements to come to California to provide live testimony.
Whether to allow an individual residing out-of-state to testify by telephone in a child
custody proceeding is entrusted to the discretion of the court. (§ 3411, subd. (b).) Given
the events that precipitated this ruling and the trial court’s wide discretion to control its
proceedings (see, e.g., Little v. Pullman (2013) 219 Cal.App.4th 558, 570 [“[i]t is beyond
dispute that the court may control its processes so as to most efficiently and effectively
safeguard judicial economy and administer substantial justice”]; see also Code Civ. Proc.,
§ 128, subd. (a)(3) [court has power to provide for the orderly conduct of proceedings
before it]), the withdrawal of permission for Latia to testify telephonically was not an
abuse of discretion. (See In re Nada R. (2001) 89 Cal.App.4th 1166, 1176 [trial court’s
refusal to allow witnesses to testify telephonically from Saudi Arabia after expressing
concern about the reliability of telephonic testimony was not an abuse of discretion].)
“Oral testimony of witnesses given in the presence of the trier of fact is valued for its
probative worth on the issue of credibility, because such testimony affords the trier of
fact an opportunity to observe the demeanor of the witnesses.” (Elkins v. Superior Court
(2007) 41 Cal.4th 1337, 1358. “A witness’s demeanor is ‘“part of the evidence”’ and is
‘of considerable legal consequence.’” (Ibid.)
       Latia also contends the court engaged in improper ex parte communications at the
trial setting conference on June 30, 2014. The reporter’s transcript from the morning
session on that date shows that Muhammad and his counsel were present when the case
was called and the court stated, “Miss Aadam has already called in once based on the
court’s direction to call in at 10:30.” It appears Latia was not participating by telephone
at that time, yet the court proceeded to update Muhammad on its efforts to contact Judge

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Bardach in Indiana concerning the domestic violence restraining order and conducted a
short discussion concerning Muhammad’s scheduled summer visit with Landon. When
the afternoon session began, Latia was “present, calling in from Indiana.” The court
provided a brief explanation of what had been discussed in Latia’s absence during the
morning session and then asked Latia if she wanted to respond “with regards to anything
I relayed to you so far.” Latia then addressed the issues the court had raised, as
summarized above. In light of Latia’s ability to fully discuss her position with respect to
the matters considered at the trial setting conference, any procedural error in proceeding
in her absence in the abbreviated morning session was harmless. (See Cal. Const., art.
VI, § 13 [“[n]o judgment shall be set aside, or new trial granted, in any cause . . . for any
error as to any matter of procedure, unless, after an examination of the entire cause,
including the evidence, the court shall be of the opinion that the error complained of has
resulted in a miscarriage of justice”]; Code Civ. Proc., § 475 [“[n]o judgment, decision,
or decree shall be reversed or affected by reason of any error, ruling, instruction, or
defect, unless it shall appear from the record that such error, ruling, instruction, or defect
was prejudicial, and also by reason that such error, ruling, instruction, or defect, the said
party complaining or appealing sustained and suffered substantial injury, and that a
different result would have been probable if such error, ruling, instruction, or defect had
not occurred or existed”]; In re Marriage of Steiner & Hosseini (2004) 117 Cal.App.4th
519, 526-527 [applying harmless error standard in dissolution proceedings].)
       6. Substantial Evidence Supports the Family Law Court’s Orders
       Although Latia contends, mistakenly, the trial court violated or disregarded
various statutory requirements in resolving the parties’ custody dispute, her fundamental
challenge to the orders awarding sole legal and physical custody to Muhammad and
restricting her to supervised visitation is that the court’s findings were without
evidentiary support and, as a consequence, there was no reasonable basis on which the
court could conclude its decision advanced Landon’s best interests. (See In re Marriage
of Burgess, supra, 13 Cal.4th at p. 32.) In evaluating this argument, our review is

                                              19
governed by well-established principles: “It has been held repeatedly that the trial judge
having heard the evidence, observed the witnesses, their demeanor, attitude, candor or
lack of candor, is best qualified to pass upon and determine the factual issues presented
by their testimony; and, . . . ‘this is especially true where the custody of minor children is
involved. An appellate tribunal is not authorized to retry the issue of custody, nor to
substitute its judgment for that of the duly constituted arbiter of the facts.’ It is the trial
court’s responsibility to pass on the credibility of witnesses, the weight to which their
testimony is entitled, and the inferences to be drawn from the evidence. On appeal it is,
of course, the duty of this court to view the evidence and the reasonable inferences to be
drawn therefrom in the light most favorable to the successful party in the court below.”
(Ducharme v. Ducharme (1957) 152 Cal.App.2d 189, 193; see Sanchez v. Sanchez (1961)
55 Cal.2d 118, 126 [“There were, as is not unusual in a proceeding of this nature,
conflicts both as to probative facts and as to the proper inferences to be drawn from such
facts. But, as is true in all appellate reviews, and most emphatically in this type of
controversy, it is not the function of this court to reweigh conflicting evidence and
redetermine findings; neither is this court vested with discretion to be exercised in the
premises. Our function has been fully performed when we find in the record substantial
evidence which supports the essential findings of the trial court.”]; see also In re
Marriage of Fajota, supra, 230 Cal.App.4th at p. 1497.)
       Utilizing this highly deferential standard of review, the record in this case, as set
forth in our summary of the trial proceedings, provides ample support for the court’s
factual findings; and those findings, in turn, support the court’s exercise of discretion in
awarding sole legal and physical custody to Muhammad with limited, supervised
visitation for Latia. The trial court was entitled to disregard Latia’s testimony and give it
no weight based on its assessment of her credibility and to believe Muhammad’s
testimony. Having expressly done so, substantial evidence supports the court’s findings
that Latia intentionally frustrated Muhammad’s visitation rights in direct violation of
court orders and that she could not be relied upon to comply on a going-forward basis

                                               20
with the court’s orders regarding coparenting, as well as its implied findings that
Muhammad’s admitted sex addiction and lack of prior involvement in caring for Landon
would not interfere with his ability to serve as the child’s primary caregiver. The record
also supports the court’s finding that Muhammad offered positive plans for Landon’s
ethical, emotional and intellectual development, while Latia had acted, and would likely
continue to act, in a manner that prevented the child from bonding with his father.
       The need for monitored visitation was less developed in the record, but the court
explained its order was based on the finding that Latia had a significant problem with
coparenting and its conclusion she would greatly benefit by participation in counseling
and/or parenting classes. As the court observed, once Latia completed a six-month
program (26 sessions) addressing the issues in the case, it would likely change the
custody and visitation orders to more closely parallel the arrangements in the parties’
July 22, 2013 stipulation. There was no abuse of discretion.
                                     DISPOSITION
       The May 5, 2015 judgment is affirmed. Because Muhammad did not appear in the
appellate proceedings, no costs are awarded.


                                                         PERLUSS, P. J.


We concur:


              SEGAL, J.                                  BLUMENFELD, J.*




*     Judge of the Los Angeles County Superior Court, assigned by the Chief Justice
pursuant to article VI, section 6 of the California Constitution.
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