GRIMES, Acting P. J.
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County Super. Ct. No. 20VEFL01348 Marilyn M. Mordetzky, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.)
Kirk Chamberlin, in pro. per., for Plaintiff and Appellant.
Billy Rogers, in pro. per., for Defendant and Respondent.
GRIMES, Acting P. J.
Plaintiff and appellant Kirk Chamberlin appeals from the denial of his petition for an order allowing visitation with a minor child pursuant to Family Code section 3101. He contends the court abused its discretion in denying his request for visitation with his stepson.
We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Plaintiff is the stepfather of 10-year-old E.C.R. Plaintiff married E.C.R.'s mother Melissa in 2018. She had sole legal and physical custody of E.C.R. Plaintiff, Melissa and E.C.R. lived together until Melissa passed away from leukemia in November 2019. Their time together as a family often included plaintiff's biological son from a different relationship who is close in age to E.C.R.
Defendant and respondent Billy Rogers is E.C.R.'s biological father. He was never married to Melissa. Defendant had visitation with E.C.R. while Melissa was alive and, after her death, he obtained sole legal and physical custody of E.C.R.
In October 2020, plaintiff filed a petition for an order allowing visitation with E.C.R. Plaintiff stated in his petition it had been one of Melissa's dying wishes that E.C.R. maintain his relationships with plaintiff and his stepbrother. Plaintiff said that he, his biological son and E.C.R. enjoyed spending time together, swimming, playing with their pet dogs and other activities. Plaintiff said defendant had been allowing visitation up until March 2020 when he abruptly cut off all contact. Plaintiff said he sought only the right to have some minimal, regular type of contact with E.C.R. and not to interfere with defendant's custodial rights.
In his response to the petition, defendant requested the court deny any type of visitation. Defendant said he had limited time to spend with his son as a single, working parent and he was unable to accommodate plaintiff. Defendant said E.C.R.'s life was filled with positive relationships, and it was already difficult juggling schedules so that E.C.R. could spend quality time with his maternal grandparents and attend therapy sessions to help him process the grief of losing his mother.
The parties stipulated to Commissioner Mordetsky hearing the matter as a judge pro tempore. In February 2021, the court appointed a family court services specialist, Mr. Columbo, to conduct a parenting plan assessment and make an oral report to the court. The court also appointed counsel for E.C.R.
At the hearing on June 29, 2021, Mr. Columbo provided his oral report on the record. He said he conducted various interviews, including with E.C.R., plaintiff, defendant, E.C.R.'s therapist and numerous family members and friends. Mr. Columbo said he believed plaintiff had appropriate interactions with E.C.R. and that E.C.R. generally spoke positively about the time he spent at plaintiff's home, playing with the dogs and swimming with his stepbrother. However, Mr. Columbo said E.C.R.'s relationship with plaintiff had not been very long, the mother having passed away less than a year after the marriage. Mr. Columbo also mentioned there had been one incident of domestic abuse, outside of E.C.R.'s presence, where plaintiff had apparently struck E.C.R.'s mother. He noted there was some conflict between plaintiff and defendant's family and even the maternal grandparents. The maternal grandmother reported that toward the end of her daughter's illness, she was in the home a lot and she felt plaintiff drank too much. Mr. Columbo did not believe plaintiff and E.C.R. had formed the type of beneficial relationship that would cause detriment if they did not regularly see each other. He did not recommend that the court order visitation for plaintiff. But he believed E.C.R. should continue therapy and that defendant should be strongly encouraged to voluntarily allow visitation with plaintiff and the stepbrother if E.C.R. desired it.
E.C.R.'s counsel concurred with Mr. Columbo's assessment.
The court discussed Mr. Columbo's report with the parties and entertained argument. Thereafter, the court explained it did not believe the evidence showed E.C.R. would suffer detriment if visitation with plaintiff was denied. The court expressed concerns about forcing a visitation schedule when there was apparent conflict between plaintiff and defendant that could spill over and negatively impact E.C.R. The court denied plaintiff's petition finding it was not in E.C.R.'s best interest. The court also expressed its agreement with Mr. Columbo's recommendation that defendant remain open to voluntarily allowing visitation if E.C.R. wanted it.
The court's written order stated: "[Plaintiff's] Request for Order is denied. [¶] The Court does not make any order this date, but advises the parties that they shall follow the recommendations of the evaluator by establishing a voluntary arrangement for [plaintiff] to have day visits with [E.C.R.], with [defendant] establishing the parameters of the visits including day, exchange time, exchange location, person to be present, etc. [¶] [E.C.R.'s] counsel request to be relieved as counsel is granted."
This appeal followed.
DISCUSSION
" 'The standard of appellate review of custody and visitation orders is the deferential abuse of discretion test.'" (Montenegro v. Diaz (2001) 26 Cal.4th 249, 255; accord, In re Marriage of Burgess (1996) 13 Cal.4th 25, 32 &Chalmers v. Hirschkop (2013) 213 Cal.App.4th 289, 299 (Chalmers).) "The precise measure is whether the trial court could have reasonably concluded that the order in question advanced the 'best interest' of the child. We are required to uphold the ruling if it is correct on any basis, regardless of whether such basis was actually invoked." (In re Marriage of Burgess, at p. 32.)
Plaintiff argues that abuse of discretion is established here on several bases. We do not agree.
Plaintiff first contends the order is contradictory and unintelligible. The court's oral ruling at the hearing was clear. The court said it was denying the petition because it found it was not in E.C.R.'s best interest to impose a mandatory visitation schedule with plaintiff. The court then went on to state that it agreed with the appointed specialist, Mr. Columbo, that defendant should nonetheless be encouraged to make voluntary arrangements for visitation with plaintiff and the stepbrother if E.C.R. desired it. To the extent the court's written order memorializing the ruling announced at the hearing is confusing, we find the court's oral pronouncement controls here. (People v. Smith (1983) 33 Cal.3d 596, 599 [where record is in conflict, it should be harmonized if possible; if not," 'whether the recitals in the clerk's minutes should prevail as against contrary statements in the reporter's transcript, must depend upon the circumstances of each particular case' "].)
Plaintiff next argues the court used the wrong standard in ruling on the petition by imposing an "absolute certainty" standard and creating a false distinction between loss and detriment. The record does not support this claim.
It is well established that under California's statutory scheme governing child custody and visitation, "the overarching concern is the best interest of the child." (Montenegro v. Diaz, supra, 26 Cal.4th at p. 255.) Relevant factors for the court to consider in determining the best interest of the minor include the health, safety and welfare of the child, any history of physical or substance abuse, and the nature and amount of contact. (Ibid.; see also Fam. Code, § 3011.) Mr. Columbo's report to the court, on which the court plainly relied, focused on these factors and the court made repeated references to the best interest standard in explaining its ruling.
The record does not support plaintiff's further assertion there was "uncontroverted" evidence that E.C.R. benefitted from his relationship with plaintiff. In so arguing, plaintiff asks us to ignore the abuse of discretion standard and reweigh the evidence in his favor. That is not our role, and we decline to do so."' "An appellate tribunal is neither authorized nor warranted in substituting its judgment for the judgment of the trial judge. To be entitled to relief on appeal from the result of an alleged abuse of discretion it must clearly appear that the injury resulting from such a wrong is sufficiently grave to amount to a manifest miscarriage of justice ...." '" (Chalmers, supra, 213 Cal.App.4th at p. 299.)
DISPOSITION
The order denying plaintiff and appellant Kirk Chamberlin's petition for an order of visitation is affirmed. Defendant and respondent Billy Rogers shall recover costs of appeal.
WE CONCUR: WILEY, J. HARUTUNIAN, J. [*]
[*] Judge of the San Diego Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.