Unreported / Non-Citable
Background
Michelle N. (mother) and David N. (father) are the parents of one child, I.N. Their marriage was dissolved in 2021. Mother obtained a domestic violence restraining order against father in September 2021, renewed in January 2024 and expiring in 2028. In July 2022 the family court awarded mother sole legal and physical custody of I.N. after an evidentiary hearing, and in May 2024 modified the restraining order's visitation provisions to allow father unsupervised visitation plus telephone or video contact.
In January 2025, mother filed a request for order (RFO) to modify father's visitation, with an ex parte application for temporary emergency orders limiting his contact with I.N. to professionally supervised visitation. She alleged father was paranoid and unstable, had exposed I.N. to the parents' conflict, posted videos discussing possible violent confrontations in I.N.'s presence, feared he still possessed a handgun, and had refused to disclose his address. The court granted the temporary supervised-visitation orders and set the RFO for hearing.
At a January 27, 2025 hearing the court kept the temporary order in place and referred the parties to Family Court Services for a fact-based inquiry under Family Code section 3183, subdivision (b). The liaison's June 2025 report identified no specific safety concerns but noted I.N. became restless, avoided eye contact, and was clearly uncomfortable discussing his parents, and summarized 15 police reports from 2016-2025, including a 2016 charge of corporal injury on a spouse. After a July 14, 2025 hearing, the court's July 15, 2025 order found father failed to demonstrate the current orders were not in I.N.'s best interest under Family Code sections 3011, 3040, and 3044, and denied his request for a section 217 evidentiary hearing. Father appealed.
The Court’s Holding
The Court of Appeal affirmed. Because father provided only a clerk's transcript, with no reporter's transcript or settled statement of the January 27 or July 14 hearings, the court treated the appeal as one on the judgment roll: error must be affirmatively shown and is not presumed, and all intendments support the order. The court rejected father's claim that the missing transcript resulted from the superior court's practices, noting he showed no fee waiver or timely reporter request under local rules.
The court held father forfeited his right to live testimony under Family Code section 217 because he did not request live testimony or cross-examination in his pre-hearing filings and filed no witness list as section 217, subdivision (c) and rule 5.113(e) require. Without a transcript, the court could not review his claim that no good-cause finding was made and presumed sufficient reasons were stated; any violation was harmless because father showed no reasonable probability of a different result.
The court rejected the argument that specific findings were required under sections 3011, 3020, and 3100: section 3011(a)(5)(A) requires stated reasons only when ordering unsupervised visitation after abuse allegations, and sections 3020 and 3100 impose no such requirement here. Any error in citing section 3044 was harmless because the court was not modifying the custody order. Evidentiary challenges were unreviewable on a judgment roll appeal, and substantial evidence supported the finding that professionally supervised visitation served I.N.'s best interests; the court did not abuse its discretion.
Key Takeaways
- A party seeking live testimony under Family Code section 217 must request it in pre-hearing filings and serve a witness list, or risk forfeiture of an evidentiary hearing.
- An appellant proceeding on a judgment roll record without a reporter's transcript or settled statement cannot obtain review of evidentiary rulings or the sufficiency of the evidence.
- Self-represented litigants are held to the same record-preservation rules as represented parties.
- Section 3011(a)(5)(A) requires stated reasons only when a court orders unsupervised visitation after abuse allegations; sections 3020 and 3100 do not require explicit findings in this posture.
- Strict scrutiny does not apply to parent-versus-parent visitation disputes; the best-interest standard and abuse-of-discretion review govern.
Why It Matters
The decision underscores that family law appellants must preserve an adequate record: without a reporter's transcript or settled statement, judgment roll presumptions defeat challenges to evidence and procedure. It also confirms the procedural prerequisites for live testimony under section 217.
The opinion clarifies when statutory findings are required in custody and visitation orders and reaffirms that best-interest review, not strict scrutiny, governs disputes between parents.