## Facts

- Judith Lester and James P. Lennane had a brief relationship in Sacramento in November 1997 that resulted in a pregnancy.
- Lester informed Lennane of the pregnancy; he initially urged an abortion, but Lester carried the pregnancy to term.
- Before the child’s birth, Lester filed a parentage action and sought custody, support, and pregnancy-related expenses; Lennane conceded paternity (later confirmed by DNA) and requested a custody evaluation.
- The family court initially declined to issue custody orders before the birth and later entered interim visitation orders after the birth.
- A July 22, 1998 temporary order limited Lennane to one hour per day of visitation with the newborn.
- A November 13, 1998 temporary order increased Lennane’s visitation, including some overnights.
- A court-appointed psychologist recommended sole physical custody to Lennane, who lived in Florida with his second wife and their child; Lester disputed the recommendation and sought additional inquiry or a different evaluation.
- After trial before a different judge, the court awarded joint legal custody and primary physical custody to Lester, with a visitation schedule for Lennane.
- Lennane appealed both temporary orders and the final judgment, alleging the proceedings reflected gender bias against fathers.

## Issues

1. Whether temporary pretrial custody and visitation orders are directly appealable or are reviewable only by extraordinary writ.
2. Whether the trial court abused its discretion in awarding Lester primary physical custody despite an evaluator’s recommendation favoring Lennane.
3. Whether the record showed impermissible judicial gender bias affecting the interim orders or the final custody determination.

## Decision

- The appeals from the July 22 and November 13, 1998 temporary orders were dismissed because such temporary custody/visitation orders are nonappealable and are subject to immediate review only by writ.
- In the appeal from the final judgment, the court nonetheless addressed the substance of the challenges to the temporary orders because they were tied to allegations of judicial gender bias.
- The final judgment awarding primary physical custody to Lester (with joint legal custody) was affirmed.
- The court rejected the gender-bias claim, finding the challenged interim rulings and comments were not shown to be sex-based favoritism and were consistent with child-centered considerations.

## Legal Principles

- Temporary custody and visitation orders made during ongoing family proceedings are generally nonappealable; immediate review, if available, is by petition for extraordinary writ.
- Child custody determinations are reviewed for abuse of discretion; appellate courts defer to the trial court’s evaluation of evidence, credibility, and statutory “best interests” factors.
- A custody evaluator’s recommendation is evidence the court must consider, but it is not binding; the trial court may discount expert opinions for rational, record-supported reasons.
- Claims of judicial gender bias require concrete, record-based proof that decisions were driven by sex-based preference rather than legitimate considerations related to the child’s welfare.

## Conclusion

The court dismissed the father’s direct appeals from temporary custody orders as nonappealable, affirmed the final custody judgment under deferential abuse-of-discretion review, and found no record support for the claim that the custody and visitation rulings resulted from judicial gender bias.


Lester v. Lennane, 84 Cal. App. 4th 536, 101 Cal. Rptr. 2d 86 (Ct. App. 2000)