Charisma R. v. Kristina S.

Opinion

Charisma R. (Charisma) and Kristina S. (Kristina) were a same-sex couple who began dating in July 1997, moved in together in August 1998, and registered as domestic partners with the State of California in January 2002.^[1] In December 2001, the couple decided they wanted to have children and Kristina would be the first to try to become pregnant. Following

BACKGROUND

After deciding they wanted children, Charisma and Kristina contacted a sperm bank, jointly filled out the required paperwork to obtain sperm from an anonymous donor, and pursued their goal of Kristina becoming pregnant through in-home artificial insemination. Charisma assisted Kristina in the insemination process. The couple kept a joint journal regarding the process, in which Kristina was referred to as “mommy” and Charisma was referred to as “momma.”

After five months of attempts at in-home insemination, Charisma ordered two additional vials of sperm in early July 2002. On the evening of July 8, Charisma used one vial to inseminate Kristina at home; the next morning Kristina took the second vial to a doctor who inseminated her through intrauterine insemination. One of these two inseminations resulted in Kristina becoming pregnant.

Amalia was bom in April 2003. Charisma was present for the birth and cut the umbilical cord. On the birth certificate, signed by Kristina, Amalia was given a hyphenated last name that was a combination of Charisma’s and Kristina’s last names. The couple brought Amalia into their home and shared parenting responsibilities for the first six weeks of her life. At that point, Kristina returned to work and Charisma cared for Amalia full time during the day; she also provided care at night.

In May 2004, Charisma filed a petition to establish a parental relationship with Amalia. The trial court denied the petition, concluding that Charisma lacked standing to bring the action under the Uniform Parentage Act (UPA) (§ 7600 et seq.). (Charisma R. v. Kristina S. (2006) 140 Cal.App.4th 301 , 303 [ 44 Cal.Rptr.3d 332 ] (Charisma I).) Charisma appealed, and this court reversed in June 2006, concluding that Charisma had standing to establish parentage under the UPA despite the fact that she lacked a biological relationship to Amalia. (Charisma I, at pp. 303-304, citing Elisa B. v. Superior Court (2005) 37 Cal.4th 108 , 119-120 [ 33 Cal.Rptr.3d 46 , 117 P.3d 660 ] (Elisa B.).) Because the trial court did not have the benefit of the Elisa B. decision at the time of its initial ruling, this court remanded the matter to the trial court for a determination, in light of Elisa B., whether Charisma is a presumed parent under section 7611(d) and, if so, whether this is an appropriate case in which to rebut the parentage presumption. (Charisma I, at pp. 304, 307.)

On remand, the trial court found that Charisma is a presumed parent and that the presumption had not been rebutted. The court appointed custody evaluators who reported that adoption of a reunification plan would be appropriate. In May 2008, the court adopted a plan for gradual reunification of Charisma and Amalia through joint therapy sessions in Texas with a court-appointed therapist.

DISCUSSION

I. Substantial Evidence Supports the Trial Court’s Finding That the Section 7611(d) Parentage Presumption Is Applicable

Under the UPA, an “interested person” may bring an action to determine the existence or nonexistence of a mother and child relationship. (§ 7650, subd. (a).) Section 7611(d) provides that a man is presumed to be the father of a child if he “receives the child into his home and openly holds out the child as his natural child.” As explained in Adoption of Michael H. (1995)

In Elisa B., the El Dorado County District Attorney filed a complaint to establish that Elisa was the parent of twins bom to her former partner, Emily, and to order Elisa to pay child support. Elisa denied she was the children’s parent. (Elisa B., supra, 37 Cal.4th at p. 113.) It was undisputed that Elisa participated in the artificial insemination of Emily with the understanding that they would raise the resulting child or children as coparents, and they did in fact coparent the children in a common family home for over one and one-half years. (Id. at pp. 114—115, 122.) The court pointed out that section 7650, subdivision (a), states that provisions applicable to determining a father and child relationship shall be used to determine a mother and child relationship “ ‘insofar as practicable,’ ” and concluded Elisa could be considered a presumed parent under section 7611(d). (Elisa B., at pp. 119-120.) The case was not “an appropriate action” to rebut the presumption of parentage with evidence that there was no biological relationship between Elisa and the twins,^[5] because to allow the presumption to be so rebutted would be contrary to the public policy favoring a child having two parents to provide emotional and financial support. (Elisa B., at pp. 122-125; see also Charisma I, supra, 140 Cal.App.4th at pp. 304-307.)

On remand from Charisma I, supra, 140 Cal.App.4th 301 , Charisma bore the burden of proving she is a presumed parent under section 7611(d) by a preponderance of the evidence. (Spencer W., supra, 48 Cal.App.4th at pp. 1652-1653; Glen C. v. Superior Court (2000) 78 Cal.App.4th 570 , 585-586 [ 93 Cal.Rptr.2d 103 ].) On appeal, we review the trial court’s determination under the substantial evidence standard: “[W]e are bound to uphold [the trial court’s judgment] so long as the record is free from prejudicial error and the judgment is supported by evidence which is ‘substantial,’ that is, of ‘ “ponderable legal significance,” ’ ‘ “reasonable in nature, credible, and of solid value ....’” [Citations.]” (Howard v. Owens Corning

A. Kristina’s Evidentiary Objections

Kristina objected below to aspects of declarations filed by Charisma, on the grounds of lack of personal knowledge and lack of foundation. However, the trial court never ruled on her objections. Where a party fails to obtain a ruling from the trial court, the objections generally are not preserved on appeal. (Bussard v. Minimed, Inc. (2003) 105 Cal.App.4th 798 , 801, fn. 1 [ 129 Cal.Rptr.2d 675 ].) Appellate courts sometimes decline to apply that rule where the party unsuccessfully pressed for a ruling below, but Kristina failed to do so in this case.^[6] (See Siam v. Kizilbash (2005) 130 Cal.App.4th 1563 , 1580 [ 31 Cal.Rptr.3d 368 ] [party orally requested a ruling and obtained “a blanket ruling of sorts”]; City of Long Beach v. Farmers & Merchants Bank (2000) 81 Cal.App.4th 780 , 785 [ 97 Cal.Rptr.2d 140 ] [party made two oral requests for rulings].) Citing Thomas v. Quintero (2005) 126 Cal.App.4th 635 [ 24 Cal.Rptr.3d 619 ], Kristina argues this court may consider her objections even though she failed to obtain a ruling below. However, that case held only that reviewing courts may consider evidentiary objections for the first time on appeal where the lower court “disposed of the motion on a legal ground not requiring a consideration of the evidence presented.” (Id. at p. 656.) The court acknowledged the general rule that a party forfeits objections to evidence where the party fails to obtain a ruling from the trial court. (Id. at p. 655.) Because the trial court actually and necessarily considered the evidence presented, Kristina’s objections have been forfeited.

The court in Kelsey S. addressed the “receiving” requirement, both preUPA and post-UPA. In that case, the alleged father^[8] did not physically receive the child into his home because the birth mother sought to put the child up for adoption. (Kelsey S., supra, 1 Cal.4th at p. 825.) The court considered the alleged father’s argument that “constructive receipt [of the child] is sufficient when the mother prevents actual receipt.” (Id. at p. 828.) The court rejected that argument as a matter of statutory interpretation, because the plain language of the statute contemplates “actual” receipt rather than “attempted receipt or constructive receipt.” (Id. at pp. 826, 830.) In the course of its analysis, the court discussed a pre-UPA case, In re Richard M. (1975) 14 Cal.3d 783 [ 122 Cal.Rptr. 531 , 537 P.2d 363 ], which suggested that constructive receipt might be sufficient. (Kelsey S., at pp. 827-828.) Kelsey S. declined to adopt that suggestion, pointing out that in Richard M. the father “had in fact received the child into his home, albeit briefly. The court therefore was not faced with the question before us, i.e., whether constructive receipt is sufficient when the mother prevents actual receipt.” (Kelsey S., at p. 828.)

Moreover, as previously mentioned, the use of the term “receives” in section 7611(d) originates in the use of the term “receiving” in Civil Code former section 230. As Kelsey S. explained, under the pre-UPA cases it was sufficient if the alleged father “briefly” received the child into the home. (Kelsey S., supra, 1 Cal.4th at pp. 827-828.) We presume the Legislature was aware of the judicial interpretations of the receiving element at the time it adopted the UPA. (People v. Harrison (1989) 48 Cal.3d 321 , 329 [ 256 Cal.Rptr. 401 , 768 P.2d 1078 ] [The Legislature “is deemed to be aware of statutes and judicial decisions already in existence, and to have enacted or amended a statute in light thereof. [Citation.] Where a statute is framed in language of an earlier enactment on the same or an analogous subject, and that enactment has been judicially construed, the Legislature is presumed to have adopted that construction. [Citation.]”].) If the Legislature had intended to require an alleged parent to live with a child for an extended period of time, it would likely have used a different term than “receives” or added an express durational requirement. But Kristina presents no analysis of the

C. Substantial Evidence Supports the Trial Court’s Findings That Charisma Received Amalia into Her Home and Openly Held out Amalia As Her Natural Child

In addition to arguing that Charisma did not parent Amelia for a sufficient duration, Kristina more generally challenges the sufficiency of the evidence to support the trial court’s findings that Charisma received Amalia into her home and openly held out Amalia as her natural child, as required to establish presumed parentage under section 7611(d).

As relevant to the “receives” element, after Amalia’s birth in April 2003, Charisma and Kristina brought Amalia into their apartment and shared parenting responsibilities for the first six weeks of her life. For the next seven weeks, Charisma cared for Amalia full time during the day, and also provided care at night. Kristina seems to suggest that the apartment was not Charisma’s home because there is no evidence both of their names were on the lease. However, she presents no authority or reasoned argument that Charisma

The following evidence showed that Charisma openly held Amalia out as her natural child:^[12] Charisma was present during Amalia’s birth and cut the umbilical cord; she gave Amalia a hyphenated last name including her name on Amalia’s birth certificate; she brought Amalia into her and Kristina’s shared home; she held herself out as Amalia’s mother in a birth announcement, a baby shower, a gift registry, an online message board for women trying to conceive, and communications with various people, including the nurse at a “well baby” visit, a visiting former coworker, and strangers in the street; she shared in the care of Amalia until Kristina went back to work; and she cared for Amalia after Kristina returned to work until Kristina moved out with Amalia.

Clearly, Kristina is mistaken in asserting the evidence showed only that Charisma “told a few people that [Amalia] was ‘her baby.’ ” The evidence showed that Charisma openly and publicly asserted her parentage in various forums and to numerous people. Kristina points to no evidence demonstrating any equivocating on the part of Charisma regarding her parentage (cf. Spencer W., supra, 48 Cal.App.4th at pp. 1651, 1653-1654), and she presents no authority or reasoned argument that any particular number or sorts of public acknowledgements are necessary to satisfy section 7611(d).

Kristina’s attempt to analogize this case to Spencer W. fails. In that case, the alleged father, Leonard, lived with the mother at the time of the birth but not at the time of conception. (Spencer W., supra, 48 Cal.App.4th at p. 1650.) It was unclear who the biological father was because the mother was a prostitute at the time of conception. (Ibid.) Leonard was present at the child’s birth, and lived with the child and the mother for two years. (Ibid.) During that time, Leonard told some people he was the father, the child called him “daddy,” and Leonard cared for and disciplined the child. (Id. at pp. 1650-1651.) However, Leonard did not have his name placed on the birth certificate and he “was equivocal in asserting his parental relationship” while they lived together. (Ibid.) In particular, when a social worker visited the apartment, Leonard specifically told the worker he was not the child’s father. (Id. at p. 1651.) He cared for the child for two months while the mother was incarcerated, but when the mother stopped receiving welfare payments during another period of incarceration, Leonard separated from her and left the child with a friend of the mother. (Ibid.) The Court of Appeal affirmed the trial court’s rejection of Leonard’s presumed parentage claim, concluding that

We also reject Kristina’s attempt to analogize this case to In re Sarah C. (1992) 8 Cal.App.4th 964 [ 11 Cal.Rptr.2d 414 ] (Sarah C.). There, the child was the product of an extramarital affair between the mother and the alleged father, Paul. (Id. at p. 969.) Although Paul told “a few friends” and family that he was the biological father, he did not assist the mother during the pregnancy, did not seek to have his name listed on the birth certificate (which listed the mother’s husband’s name), and did not inform the mother’s husband of the child’s biological paternity. (Id. at pp. 972-973.) The Court of Appeal concluded the evidence supported the trial court’s finding that Paul was not a presumed father. (Id. at p. 973.) In contrast, the evidence in this case uniformly showed Charisma held Amalia out as her natural child at every appropriate opportunity.

It is important to note that in the two cases Kristina principally relies upon, Spencer W. and Sarah C., the Courts of Appeal were reviewing trial court decisions rejecting presumed parentage claims. (Spencer W., supra, 48 Cal.App.4th at pp. 1653-1654; Sarah C., supra, 8 Cal.App.4th at p. 973.) Accordingly, the reviewing courts were obliged to make all inferences in favor of the trial court findings that the alleged fathers had not established their presumed parentage claims. In this case, we are obliged to make all factual inferences in favor of the trial court’s finding that Charisma made the showing required by section 7611(d). That finding is amply supported by the evidence in the record.^[14]

Section 7612, subdivision (a), provides that “a presumption under Section 7611 is a rebuttable presumption affecting the burden of proof and may be rebutted in an appropriate action only by clear and convincing evidence.” Thus, Kristina bore the burden below of rebutting the presumption that Charisma was Amalia’s parent with clear and convincing evidence. (Comino v. Kelley (1994) 25 Cal.App.4th 678 , 685 [ 30 Cal.Rptr.2d 728 ].) The determination of whether the presumption has been rebutted is within the discretion of the trial court. (Elisa B., supra, 37 Cal.4th at p. 122.)

In an appropriate case, clear and convincing evidence that an alleged parent has no biological tie to the child may defeat presumed parent status. (See Elisa B., supra, 37 Cal.4th at p. 120.) In Elisa B., the court concluded the case was “not ‘an appropriate action’ in which to rebut the presumption of presumed parenthood with proof that Elisa is not the twins’ biological parent.” (Id. at p. 122.) The court stated it was unnecessary to remand to permit the superior court to exercise its discretion because it would have been an abuse of discretion to conclude the presumption could be rebutted because Elisa “actively participated in causing the children to be conceived with the understanding that she would raise the children as her own together with the birth mother, she voluntarily accepted the rights and obligations of parenthood after the children were bom, and there are no competing claims to her being the children’s second parent.” (Id. at pp. 122, 125.)

In Charisma I, this court instructed the trial court that, if it found Charisma is a presumed parent of Amalia under section 7611(d), it should then determine whether the facts identified in Elisa B. on the rebuttal issue are true. We explained: “If the trial court finds that Charisma is a presumed parent and finds true all of the facts outlined in Elisa B. on the rebuttal issue, those findings support a conclusion that this is not an appropriate case to allow rebuttal of the presumption of Charisma’s parenthood; in other words, the evidence that she has no biological tie to Amalia does not rebut the presumption. Absent other facts justifying rebuttal of the presumption [citation], any other conclusion would be an abuse of discretion. [Citation.]” (Charisma I, supra, 140 Cal.App.4th at p. 307.)^[15]

The trial court made findings on the Elisa B. factors to support its conclusion that Kristina had failed to rebut the presumption of parenthood under section 7611(d).^[16] Substantial evidence supports the trial court’s finding that Charisma actively participated in Amalia’s conception with the understanding she would parent Amalia with Kristina. Charisma and Kristina were in a romantic relationship and registered domestic partners in California at the time Amalia was conceived. After the couple decided to have children, they contacted a sperm bank and jointly filled out the required paperwork to obtain sperm from an anonymous donor. The sperm bank’s “Patient Registration Form” lists Kristina as the patient and Charisma as her “Spouse[]/Partner[],” and indicates they are registered domestic partners. The couple provided Charisma’s credit card information for billing purposes and both women signed the form. Both Charisma and Kristina signed a consent form for therapeutic insemination and a release form for home insemination. Charisma completed the sperm bank’s “Donor Selection Form” listing donor choices and both women’s physical characteristics. Charisma placed two of the orders for sperm (there were three orders in total), one of which included the sperm that impregnated Kristina.

For five months, Charisma actively participated in Kristina’s in-home artificial insemination efforts.^[17] The couple kept a joint journal regarding the process, in which Kristina was referred to as “mommy” and Charisma was referred to as “momma.” In the journal both women describe their excitement at the prospect of parenthood. The journal also contains statements such as “We decided to try to inseminate today.” In another entry, Charisma describes in detail her effort to learn how to perform the insemination and how she “blundered” the first attempt. After Kristina became pregnant, her mother addressed e-mails to Charisma and Kristina to “the mommies.” Charisma communicated with her coworker, a coworker of Kristina’s, an online community of other women trying to conceive, and others regarding her and Kristina’s efforts to have a child.

Substantial evidence also supports the trial court’s finding that Charisma voluntarily accepted the rights and obligations of parenthood after Amalia was bom: She was present during Amalia’s birth and cut the umbilical cord; she gave Amalia a hyphenated last name including her name; she brought Amalia into her home; she held herself out as Amalia’s mother to various people in various forums; she shared in the care of Amalia until Kristina went back to work; and she cared for Amalia after Kristina returned to work until Kristina moved out with Amalia. Kristina concedes that Charisma “watched” Amalia after she returned to work, but she disputes the amount and quality of Charisma’s care and contributions to the household. We must accept the trial court’s resolution of this factual dispute. (Howard v. Owens Corning, supra, 72 Cal.App.4th at pp. 630-631.)

Again, an underlying theme of Kristina’s argument is that the trial court should have found tire parentage presumption rebutted because Charisma did not parent Amalia for a long period of time. While the duration of parenting could be relevant to the rebuttal analysis, there is no specific durational requirement. Kristina points out that in Elisa B., supra, 37 Cal.4th at pages 114—115, 123, the alleged parent played a substantial parental role for years. However, the court did not suggest it would be appropriate to rebut the parentage presumption solely because there is no lengthy period of parenting. In fact, the court’s holding omits any reference to a durational requirement. Of the three factors outlined by the court, only the “voluntarily accepted the rights and obligations of parenthood” factor (id. at p. 125) is one in which duration could arguably be of any relevance. But, despite the fact that Elisa had parented the children for years, the Supreme Court elected not to describe the factor with language including a temporal dimension, such as “for a significant period of time.”^[18] Moreover, it is undisputed that it was Kristina’s unilateral conduct in moving out with Amalia that prevented

The trial court’s decision is well supported by the evidence.

B. The Trial Court Did Not Abuse Its Discretion in Concluding That No Other Facts Justified Rebuttal of the Parentage Presumption

In Charisma I, supra, 140 Cal.App.4th at page 307, this court indicated that rebuttal of the parentage presumption would not be an abuse of discretion, even if all the Elisa B. factors are present, if other facts justified rebuttal of the presumption. We cited In re T.R., supra, 132 Cal.App.4th at page 1212, in which the court concluded that conduct “antithetical” to the parental role can justify rebuttal of the presumption (id. at p. 1211).

Kristina argues the trial court erred in failing to find the presumption rebutted based on a single photograph of Amalia that Charisma posted online. The claimed objectionable photograph is one of dozens included in an online photo album. It depicts a newborn, naked Amalia from the neck down, apparently in the hospital because of the presence of monitors and cords. The baby’s genitalia are visible, although the photograph does not emphasize the

The evidence presented by Kristina is not comparable to the evidence justifying rebuttal of the parentage presumption in In re T.R., supra, 132 Cal.App.4th 1202 . There, the alleged father, Marvin, was a registered sex offender who had been convicted of three counts of lewd conduct with 10-year-old and 13-year-old girls and sentenced to six years in prison. (Id. at pp. 1206-1207.) The minor was 10 years old and declared a dependent of the juvenile court based on an allegation that she was at substantial risk of being sexually abused due to Marvin’s history of molesting other children and

Finally, Kristina contends extending presumed parent status to Charisma is not consistent with “the purposes of the parentage presumption.” Kristina principally relies on Elisa B., supra, 37 Cal.4th 108 , where El Dorado County was seeking to force the alleged parent to provide financial support to the children. Kristina interprets Elisa B. too narrowly; the case does not suggest that lack of a present need for financial support justifies rebuttal of the presumption. The presumption furthers the general public policy favoring a child having “two parents, rather than one, as a source of both emotional and financial support.” (Id. at p. 123; see also Kristine H. v. Lisa R., supra, 37 Cal.4th at p. 166 [referring to “the public policy favoring that a child have two parents rather than one”]; Kristine M. v. David P. (2006) 135 Cal.App.4th 783 , 788 [ 37 Cal.Rptr.3d 748 ] [“[p]ublic policy and common sense endorse, where possible, creation of a legal parent and child relationship, with the attendant responsibilities and privileges” (fn. omitted)]; Librers v. Black, supra, 129 Cal.App.4th at p. 123 [“whenever possible, a child should have the benefit of two parents to support and nurture him or her”].) It may be especially important to apply the presumption where the public would otherwise bear the support obligation (Elisa B., at p. 123), but that is not a necessary condition to application of the presumption. It is reasonable to conclude Amalia will benefit, either now or in the future, from the additional financial and emotional support a second parent can provide, even if she would not otherwise become a public burden.^[24]

Troxel is inapposite. There, the court considered a nonparental visitation statute (Troxel, supra, 530 U.S. at p. 73); at issue here is a statute determining the identity of Amalia’s parents. Unlike the order in Troxel, the order declaring Charisma a parent of Amalia by definition did not extend rights to a nonparent. Moreover, as in K.M. v. E.G., supra, 37 Cal.4th at page 144, neither Charisma’s nor Kristina’s “claim to parentage preceded the other’s.” In that case, the California Supreme Court rejected an analogy to Troxel, reasoning “K.M.’s claim to be the twins’ mother because the twins were produced from her ova is equal to, and arose at the same time as, E.G.’s claim to be the twins’ mother because she gave birth to them.” (K.M., at p. 144.) In this case, Kristina and Charisma decided to have a child together, they jointly pursued the goal of Kristina becoming pregnant, and Charisma was present at the birth and cut the umbilical cord. Kristina’s parentage claim arises from the fact that she gave birth to Amalia. (Ibid.; Elisa B., supra, 37 Cal.4th at p. 116.) And, at the time of the birth, Charisma had an inchoate parentage claim because she “actively consented to, and participated in, the artificial insemination of her partner with the understanding that the resulting child . . . would be raised by [Kristina] and her as coparents.” (Elisa B., at p. 122; see also id. at p. 125.) Charisma’s parentage claim was not legally complete until she accepted Amalia into her home, but it arose at the same time as Kristina’s claim. Because Charisma ultimately satisfied the legal standards for presumed parent status and her showing was not rebutted,

Although Kristina fails to frame the issue in this fashion, her true complaint is that the state has seen fit to declare a person without a biological connection to Amalia a parent. This involves a different liberty interest than those at issue in Troxel and other cases cited by Kristina; in those cases, the identity of the parents was not in dispute. (Troxel, supra, 530 U.S. 57 ; Stanley v. Illinois (1972) 405 U.S. 645 [ 31 L.Ed.2d 551 , 92 S.Ct. 1208 ]; Prince v. Massachusetts (1944) 321 U.S. 158 [ 88 L.Ed. 645 , 64 S.Ct. 438 ].) The distinction is critical because the courts “have required in substantive-due-process cases a ‘careful description’ of the asserted fundamental liberty interest. [Citations.]” (Washington v. Glucksberg (1997) 521 U.S. 702 , 721 [ 138 L.Ed.2d 772 , 117 S.Ct. 2258 ] (Glucksberg); see also Dawn D., supra, 17 Cal.4th at p. 940.) “This ‘careful description’ is concrete and particularized, rather than abstract and general . . . .” (Dawn D., at p. 940.)^[27] Kristina’s claim is essentially that as the biological mother, and in the effective absence of a biological father, she has a fundamental right to decide whether Amalia has a second parent. However, she presents no authority or reasoned argument that a state infringes on a biological parent’s substantive due process rights by extending parental status to a nonbiological parent in the circumstances of this case. (See Michael H. v. Gerald D. (1989) 491 U.S. 110 , 129-130 [ 105 L.Ed.2d 91 , 109 S.Ct. 2333 ] (plur. opn. of Scalia, J.) [state did not violate biological father’s constitutional rights by denying him an opportunity to rebut a presumption that husband of mother was father; “[i]t is a question of legislative policy and not constitutional law whether California will allow the presumed parenthood of a couple desiring to retain a child conceived within and bom into their marriage to be rebutted”].) It may be that there are different circumstances in which such an order would be unconstitutional, but any such determination would require a careful analysis of the specific facts and interests involved in the case. (See Troxel, at p. 73.)

The court-appointed custody evaluators recommended a gradual process to reestablish Charisma’s relationship with Amalia, including joint therapy sessions in Texas with a court-appointed therapist. In its tentative order following the April 2008 trial regarding custody and visitation, the trial court ordered the parties to equally share the costs of the reunification process, including the therapist’s fees and Charisma’s airfare costs to travel to Texas. After Kristina objected, the court concluded it lacked authority to require Kristina to pay a share of Charisma’s travel costs because there was no child support order and Kristina was not technically a “move away” parent. The court also stated that forcing Kristina to bear a portion of the travel costs would be “punitive,” which was a reference to Kristina’s argument that forcing her to bear a portion of the costs would be a “punitive penalty against” her “exercise of her constitutional right to travel.” The court required Charisma to bear 100 percent of the travel costs.

In her cross-appeal, Charisma contends the trial court erred in concluding it lacked authority to order the parties to share the travel expenses. She argues the court had broad discretion to apportion the costs of visitation in the best interests of the child. We agree. In the proceeding at issue, to determine custody and visitation issues in a UPA action (§ 3021, subd. (f)), the court had “the widest discretion to choose a parenting plan that is in the best interest of the child” (§ 3040, subd. (b)). (See also In re Marriage of Burgess (1996) 13 Cal.4th 25 , 31 [ 51 Cal.Rptr.2d 444 , 913 P.2d 473 ] (Burgess).) The court was required to consider “all the circumstances bearing on the best interest of the minor child.” (Burgess, at pp. 31-32; see also §§ 3011, 3021, subd. (f).) One relevant consideration was the state policy encouraging frequent visitation. Section 3020, subdivision (b), provides: “The Legislature finds and declares that it is the public policy of this state to assure that children have frequent and continuing contact with both parents after the parents have . . . ended their relationship, and to encourage parents to share the rights and responsibilities of child rearing in order to effect this policy . . . .” Charisma points out that, were she forced to bear the entire financial burden, the cost of airfare could interfere with her ability to frequently visit Amalia in Texas.

In Burgess, supra, 13 Cal.4th at page 40, the Supreme Court discussed the trial court’s authority to fashion visitation orders, stating “the trial court has

The trial court’s orders are affirmed, except as to allocation of Charisma’s travel expenses for the reunification process. On that issue, we reverse and remand with directions that the court exercise its discretion. Costs on appeal are awarded to Charisma.

Needham, J., and Bruiniers, J.,^[29] concurred.

The petition of appellant Kristina S. for review by the Supreme Court was denied September 9, 2009, S175253.