The opinion
Filed 3/3/26 Sisti v. Callahan CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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or ordered published for purposes of rule 8.1115.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
MICHAEL JOHN SISTI, D085879
Respondent,
(Super. Ct. No. 21FL009420S)
v.
ERIN CALLAHAN,
Appellant.
APPEAL from an order of the Superior Court of San Diego County,
James T. Atkins, Judge. Affirmed.
Erin Callahan, in pro per, for Appellant.
No appearance for Respondent.
Erin Callahan, who is self-represented on appeal, challenges the family
court’s order denying her request for an evidentiary hearing on her petition to
modify the court’s custody and visitation orders in the case involving her
minor child. She also challenges other alleged errors of the court. For the
reasons set forth below, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Callahan and Michael Sisti lived together for several years and are the
parents of one child, a minor (daughter). The couple separated in 2021, and in
August of that year Sisti, filed a petition for custody and support of daughter.
On July 26, 2024, the court granted sole legal and physical custody of
daughter to Sisti and ordered supervised visitation for Callahan of up to six
hours per week, with no visit lasting longer than three hours. Further, the
court adopted the recommendations of the Family Court Services mediator as
the order of the court, including the mediator’s recommendation that before
Callahan could progress to unsupervised visitation, she would need to show
“consistent visitation, positive feedback provided by the professional
supervisor supervising the visits, input provided by the conjoint therapist
and the mother’s individual therapist indicating progress on the issues
previously ordered by the Court to be addressed, and positive and cordial
interactions between the parents.”
On November 25, 2024, Callahan filed a Request for Order (RFO)
seeking a change in child custody and visitation orders. She requested that
she have physical custody of her daughter from Thursdays after school until
Monday morning. She also requested an evidentiary hearing “to hear from
child forensic psychologist regarding the mental health of the child” and
further requested a “diagnostic assessment” for daughter, with each parent to
select someone to conduct the assessment, with results to be presented at the
evidentiary hearing. She attached a declaration to her RFO, asserting that a
forensic psychologist (unnamed) had reviewed the case and opined that it was
vital for daughter’s mental health “to be reunited with me expeditiously.”
Sisti filed an opposition to the RFO, asking that the current orders remain in
effect.
The court held a hearing on February 11, 2025. At the hearing,
Callahan requested an evidentiary hearing, asserting that there were
disputed issues of fact, “especially with regard to” the report of minor’s
counsel. Specifically, Callahan requested that the conjoint therapist testify.
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She further stated that she wanted to offer expert testimony but did not state
whom she had in mind, other than a “clinician [or] child psychologist [who is]
actively treating in the community.” Sisti opposed the request. After hearing
from all parties, the court took the matter under submission.
The court issued a written order on February 14. In denying
Callahan’s request for an evidentiary hearing, the court considered each of
the various factors under California Rules of Court, rule 5.113(b)1 (discussed
post), and concluded that at least some of the factors weighed in favor of
Callahan’s request for an evidentiary hearing. For example, the court
concluded that child custody and visitation were at issue in the case; that
parties would have the right to question the author of a report; and that
Callahan timely filed and served a witness list.
Nonetheless, the court found good cause to deny the request for an
evidentiary hearing:
“However, the court finds that the proposed testimony
relates to issues long ago resolved by the court, including
whether [Sisti] perpetrated domestic abuse and whether
[Callahan] acted reasonably in attempting to conceal from
[Sisti] the abuse perpetrated by [Callahan’s] spouse against
the child. Finally, the court has found at various times
since emergency orders were issued on January 31, 2023,
that [Callahan’s] conduct has impeded the rehabilitation of
the respondent-child relationship, as reflected in the
pleadings and resulting court orders. As such,
considerations of justice and equity weigh against granting
the request.”
Callahan timely appealed.
1 Subsequent undesignated rule references are to the California Rules of
Court.
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DISCUSSION
In this appeal, Callahan alleges a number of errors by the family court.
We endeavor to address them in turn. As a preliminary matter, we note that
the family court’s order is presumed correct and it is the appellant’s burden
to affirmatively show error on appeal. (Denham v. Superior Court (1970)
2 Cal.3d 557, 564 [“ ‘All intendments and presumptions are indulged to
support it on matters as to which the record is silent, and error must be
affirmatively shown.’ ”]; accord, Jameson v. Desta (2018) 5 Cal.5th 594, 608–
609.)
A. The Trial Court Did Not Err in Denying Request for an
Evidentiary Hearing and Expert Testimony
Callahan asserts the court erred by refusing to hold an evidentiary
hearing on the issues she raised, including her request for “qualified expert
testimony regarding [daughter’s] well-being and attachment disruption.” We
review the court’s ruling for abuse of discretion. (In re Marriage of Swain
(2018) 21 Cal.App.5th 830, 837 [on appeal, the court reviews the denial of an
evidentiary hearing for abuse of discretion, unless the issue is one of law, e.g.,
the interpretation of a statute].)
Family Code section 217 subdivision (a)2 provides that the court shall
receive live testimony relevant to and within the scope of the hearing, subject
to subdivision (b). Section 217, subdivision (b) provides: “In appropriate
cases, a court may make a finding of good cause to refuse to receive live
testimony and shall state its reasons for the finding on the record or in
writing.”
2 Further undesignated code references are sections of the Family Code.
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Rule 5.113(b) outlines the factors that the court must consider in
exercising its discretion to deny a request for an evidentiary hearing. It
requires the court to consider:
“(1) Whether a substantive matter is at issue—such as
child custody, visitation (parenting time), parentage,
child support, spousal support, requests for restraining
orders, or the characterization, division, or temporary
use and control of the property or debt of the parties;
“(2) Whether material facts are in controversy;
“(3) Whether live testimony is necessary for the court to
assess the credibility of the parties or other witnesses;
“(4) The right of the parties to question anyone submitting
reports or other information to the court;
“(5) Whether a party offering testimony from a non-party
has complied with section 217(c); and
“(6) Any other factor that is just and equitable.”
As noted ante, in its written order, the court expressly considered the
factors set forth in rule 5.113(b). Although it concluded that Callahan met
some of the factors, it found that “material facts are not in controversy” and
that “live testimony is not necessary to assess the credibility of the parties or
other witnesses.” In particular, the court concluded that “the proposed
testimony relates to issues long ago resolved by the court” and that
“considerations of justice and equity weigh against granting the request”
because Callahan’s “conduct has impeded the rehabilitation of the [mother]-
child relationship, as reflected in the pleadings and resulting court orders.”
On appeal, Callahan asserts that her experts addressed new evidence
not previously considered by the court, but we cannot assess her contention
because there are no reports or statements of any kind in the record before
us, and therefore we do not know what had been presented to the court as to
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any such new evidence. (CIT Group/Equipment Financing, Inc. v. Super
DVD, Inc. (2004) 115 Cal.App.4th 537, 539, fn. 1 [“it is well established that a
reviewing court may not give any consideration to alleged facts that are
outside of the record on appeal”].) Rule 8.122(b) sets out the required
contents of a clerk’s transcript. Among other requirements, it “must” include
“[a]ny . . . document filed . . . in the case in superior court” pertaining to the
issues on appeal (rule 8.122(b)(3)(A)). Accordingly, Callahan has not met her
burden of establishing that the court erred in denying her request for an
evidentiary hearing and expert testimony.
B. Callahan Has Not Shown Other Errors by the Court
Callahan asserts a variety of other issues on appeal. She contends that
the court failed to consider psychological abuse (although this argument is
not clearly presented, we presume she refers to alleged psychological abuse of
daughter perpetrated by Sisti) and therefore the court failed to apply the
mandatory presumption under section 3044. That section creates a
rebuttable presumption “upon a finding by the court” of domestic violence
that granting custody to the person who has perpetrated domestic violence
against a child or other person would be detrimental to the child’s best
interest.
There are two problems with this argument. First, the court made no
such finding. Thus, the cases cited by Callahan are inapposite. (See In re
Marriage of Fajota (2014) 230 Cal.App.4th 1487, 1498–1499 [court found
father had previously engaged in domestic violence against mother]; In re
C.M. (2014) 232 Cal.App.4th 1394 [juvenile court case that does not address
section 3044].) Second, the record on appeal includes no evidence of
psychological abuse of daughter by anyone.
Callahan further contends that the court violated her rights under the
ADA, which we understand to refer to the Americans with Disabilities Act of
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1990. This issue is undeveloped in Callahan’s briefing, was not presented to
the trial court, and is not supported by citations to the record or to legal
authority. We decline to consider it here.
Callahan contends that the trial court erred in denying a psychological
evaluation of daughter under Evidence Code section 730. It appears that
request was not made before the trial court, either in the RFO or at the
hearing. Here too the case cited by Callahan in support of her argument are
inapposite, and she relies upon declarations that are not in the record before
us.
Finally, Callahan contends that the court should not have considered
her failure to pay prior sanction amounts in deciding whether to grant an
evidentiary hearing, nor should the court have considered her postings on
TikTok about the case. Opposing counsel in fact raised such matters at the
hearing as equitable matters for the court to consider, but nothing in the
court’s statements at the hearings or in the court’s written order suggested
that the court in fact considered these arguments.
DISPOSITION
The order is affirmed.
KELETY, J.
WE CONCUR:
MCCONNELL, P. J.
DATO, J.
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