Nanzy Correa-Figueroa and Carlos Aguirre-Lopez
Case No: 15FL00695
Hearing Date: Tue May 29, 2018 10:30

Nature of Proceedings: OSC re Contempt; Req. for Order: Modification Child Support/Visit re: Ruling After Interview With Child

Father’s RFO: Modification Child Support/Visitation re Ruling After Interview With Child

Mother’s requests for modification of the present orders

Father’s OSC re Contempt of court against mother

Attorneys

Petitioner[“father”] is self-represented

Respondent [“mother”] is self-represented

Rulings: The Court finds there is no substantial showing of changed circumstances and the best interests of the child, or children, does not demonstrate any reason to modify the present orders. There will be no modification made. The present existing orders all remain in effect. Mother is not in contempt of court.

Background

This case was last on calendar on 5/15/18. Req. for Order: OSC re Contempt

Rulings made on 5/15/18

1. Case was last on calendar just recently.

2. The Court expected to sign the written agreement on some issues related to visitation and custody, but nothing was presented.

3. As for an evidentiary hearing, father wants to proceed on the documents in the file only; the Court has read all the documents and is prepared to rule on them.

4. Interview with Julian. The parents selected Option #2.

Option #2. The Court will meet with Julian in chambers without the parents present but on the record; but the record must be made available to the parents before the Court formulates and publishes a tentative decision so they can provide any input on the “interview.” It will take an additional two weeks before the tentative decision can be published; it takes a day or two for the Court Reporter to get the transcript prepared; the parents must then pay for the transcript; the Court will not make a decision in the case until the parties have had a chance to read the transcript so they can submit any additional declarations and be prepared to argue the tentative. Since this option was selected, the Court continued the matter to May 15, 2018 at 10:30; the interview will take place as close to 11 am as the Court can manage its calendar. Bring Julian to the Court’s Chambers door and he will wait in Marilyn’s office until the Court can get to it. The Court will then continue the matter to May 29, 2018, at 10:30 am for a ruling; any declarations or briefs related to the interview are due May 23 (noon).

Legal Authorities

The underlying Motion to Modify Custody and Visitation in this case involves the analysis of whether there has been a showing of a change of circumstances or the whether the best interests of the children require a new order since the last order was entered on 8/01/2017:

Change of Circumstances/Best Interest of the Child

It has long been recognized that the Court, on a showing of changed circumstances, may modify a custody award. The rule properly emphasizes an established rule of practice: The party seeking modification should make an affirmative showing of the new conditions or circumstances that warrant the change. The Court’s power is specified or implied in the statutory authorities; Family code § 3022 [order determining custody of the minor child may be modified at any time court deems it necessary and proper]; Family Code § 3087 [joint custody order may be modified if required by best interests of child]; Family Code § 3120 [order or decree may be modified at any time as natural rights of parties and best interests of children require].

The decisions point out that the concept of change in circumstances is elastic and that the judge has a broad discretion in determining whether the showing is sufficient for modification. The same is true where the discretion is exercised in determining the best interest of the child.

However, the judge must exercise discretion in light of the important policy considerations underlying the changed circumstances rule.

A. Substantial showing of changed circumstances is required. To justify ordering a change in custody there must generally be a persuasive showing of changed circumstances affecting the child that has occurred since the last order. That change must be substantial. The reason for the rule is clear: It is well established that the courts are reluctant to order a change of custody and will not do so except for imperative reasons; that it is desirable that there be an end of litigation and undesirable to change the child’s established mode of living. (In re Marriage of Carney (1979) 24 Cal.3rd 725 at 730.) The burden of showing a sufficient change in circumstances is on the party seeking the change of custody. (In re Marriage of Carney, supra.) Obviously, the change of circumstances rule is applicable when there has been a Judgment entered prior to the request for modification.

B. Best Interest of Child. The court can also make a modification of a prior order on the basis of the best interest of the minor child. At this point this Court must make clear the function of the changed circumstances rule. In deciding between competing parental claims, the court must make the award according to the best interest of the child. “The changed-circumstances rule is not a different test, devised to supplant the statutory test, but an adjunct to the best-interest test. It provides, in essence, that once it has been established that a particular custodial arrangement is in the best interests of the child, the court need not reexamine that question. Instead. It should preserve the established mode of custody unless some significant change in circumstances indicates that a different arrangement would be in the child’s best interest. The rule thus fosters the dual goals of judicial economy and protecting stable custody arrangements.” (Burchard v Garay (1986) 42 Ca.3rd 531, 535.)

In most cases the changed-circumstance rule and the best interests test produce the same result. When custody and visitation has been very recently determined or agreed upon between the parents, as in this case, the child’s need for continuity and stability will mean that maintenance of the current arrangement may be in the best interest of that child.

Analysis

The parties reached some agreements in Mediation on 5/2 as follows: “There was a partial agreement by the parties, however the parties were unable to agree to certain particulars. A written Stipulation and Order regarding the agreed to matters will be presented by the parties to the Court for approval. The matter is being referred back to the Court to resolve the remaining issues: the labeling of legal custody; the right of first refusal for childcare; a schedule for school breaks; and additional time with father.”

The Judgment was filed in the underlying case on 4/10/18.

Also on April 10 the Court made the following orders:

1. Mediation is set for May 2, 2018 at 8:30.

2. As for father’s motion and OSC, the Court consolidated father’s Motion to Modify set for 4/24/18 and father s OSC re Contempt [alleges Mother is in contempt of Court by not allowing Court-mandated visitation for his son Carlos Julian] set for May 8, 2018, at 10:30 am and hear both motions on May 8; no appearance expected on April 24.

Father’s RFO re modification of custody and visitation was filed on March 29, 2018, only eight months after the last order in the case [that is 8/1/2017 when the Court made an extensive analysis].

Father makes many charges including but not limited to: Mother is in contempt of Court by not allowing Court-mandated visitation for son Carlos Julian (date of birth: 9/16/2004). Contends he has not seen his son since 12/15/2017; he has reached out to him by phone and rarely has any response; they have lost communication and visitation and he is truly hurt and disappointed; Carlos Julian has become withdrawn and mother does not encourage spending quality time with father; believes he is confused and hurt by the separation of the family unit.

Izabella (date of birth: 6/23/2010) and Adrian (date of birth: 2/11/2009) are also suffering with lack of attention in their academics and behavior as proven from their teacher’s reports of Hope School District pupil progress report; he discovered after checking Adrian’s backpack that his progress report was neither signed nor returned to school by mother; he is extremely concerned for the children’s health and physical and emotional state; mother continues to prevent their communication by not answering his calls; his children expect to speak to him; he wants to hear about their day at school and general daily activities; mother does not provide names of child caretakers; mother does not keep father informed of medical or dental appointments; mother attempts to modify his visitation hours to her convenience, denying him time with the children; on several occasions he has remained with the children from Friday through Wednesday as a convenience for mother.

Father requests that the Court find mother in contempt of Court and to grant his request for modification to 50 percent child custody; 50 percent visitation and 50 percent legal custody. He requests [all schedules are based on the school district calendar] that the new schedule begins May 1, 2018, as follows:

A. To continue with Tuesday as regular visitation day from school with 2:30 pick up as originally set by the Court with permission to drop children off at school by 8:15 am Wednesday morning.

B. Mother has visitation Wednesday through Monday and continues such pattern with alternating weekends.

C. Father has Friday through Wednesday morning; drop of at school by 8:15 am.

This plan of pick up and drop off eliminates parental confrontation and inconvenience for mother.

Father to have spring break including Easter Sunday and mother to have Thanksgiving holiday and week break with children each year.

Father to obtain US passports for minor children, Adrian Joaquin and lzabella Eloisa. Father wishes to have the opportunity to travel and have children meet their relatives.

Children’s birthday: child to remain with parent that has visitation on such day.

Christmas holiday: mother and father shall alternate years, with mother during even years and with father during odd years.

New Year’s Eve and New Years day: with mother during odd years and with father on even years.

Epiphany Eve and Day: father requests this holiday

Mother’s Response was filed on 4/19; she testifies, via her declaration, that father has failed to meet his burden of proof to find mother in contempt; he does not allege specific facts regarding the alleged acts of contempt; it is difficult to determine what he wants in his OSC re contempt filed documents; she asks the Court to deny his request to find her in contempt; is difficult to respond to father’s OSC re contempt since he has not stated with specificity the alleged acts that he claims go against a Court order; he failed to use mandatory form FL-412 Affidavit of Facts Constituting Contempt, which would have prompted him to state the date of the specific order, the terms of such order, and the how and when of the acts in violation of the stated order; she attaches a copy of FL-412; contends she cannot respond to something she doesn’t understand.

Mother filed many declarations as follows: Maria Correa [her mother]; Mira Taylor [friend]; Kirk Reeves [Izabella Aguirre’s 2nd Grade teacher]; Tamara Voight [Adrian Aguirre’s 3rd grade teacher]; Martha De La Rosa [mother’s neighbor]; Kim Aragon [was Julian’s fifth grade teacher]; Markeisha Vines [mother’s neighbor and friend]; Erika Baldenegro [mother’s friend]; Dorie Rodriguez [mother’s friend; Lifestyle Director Mariposa At Ellwood Shores]; Malinda Robles, [Employer, Business Office Director].

Her declaration filed 4/19 comprises 20 pages; the Court has read it all but will only summarize; she is in disagreement with father’s allegations attached to his moving papers; the allegations are incorrect and untruthful; she doesn’t understand what is the purpose for his allegations; sees these allegations and petition for contempt as an extension of his continuous harassment towards her; the three children and she left his household on April 16, 2014, due to domestic violence; a restraining order was granted in this case on 8/18/2015; restraining order expired on 8/18/2017; according to Family Code section 3044, the Court is required to presume that he should not have any custody at all because this finding of domestic abuse occurred within the last five years; father needs to prove that it is in the best interests of the children that he be granted any custody.

Mother testifies that father expresses concern for the children’s academics; he fails to provide evidence of his actions towards working with her to help improve the children; his tactics instead just build stress; he often attacks her on such challenges, disturbing the peace, and adding unnecessary stress. Despite all of her hardships she has actively and efficiently acted upon all academic challenges the children have faced; witness letters from the children’s teachers refer to the most recent plans that the children and she have been successful with when facing challenges.

She testifies about a summary of requested orders she seeks

1. Sole physical and legal custody of minor children to remain with mother.

2. Father to have parenting time as follows:

a. Tuesday after school (or when school is not in session: at 2:30 p.m.) to 7:30 p.m. every week.

b. Alternate weekends from Friday after school (or when school is not in session: at 2:30 p.m.) through Sunday at 6:30 p.m.

3. Transportation: Since Father has recently moved to the Santa Ynez Valley:

a. Father is to pick children up from school on Tuesdays and return them to mother’s home at 7:30 p.m.

b. Father is to pick up children from school on Friday and return them to mother’s home on Sunday at 6:30 p.m.

c. If school is not in session, an alternative location for father to pick up the children will be agreed upon by the parents.

4. Children’s clothing: The current order states that mother is to provide clothing when the children go to father’s home. Mother asks that the Court now order each parent to supply appropriate clothing for the children when the children are in that parent’s care.

5. Passport and international travel order: Father is to return Julian’s passport to mother. Neither parent is to travel with the minor children outside of the United States without the other parent’s permission or Court order.

6. Our Family Wizard.com:

a. That all communication between them must be done through OurFamilyWizard.com instead of text messages. This online communication tool costs $99/year/parent, but they do offer a sliding fee scale for low income people. Each of them needs to be ordered to register at that website as soon as possible.

b. That father must send her a text message to her telephone number telling her to check her email for the details of his request to change visitation.

c. When she responds to his email, this will act as verification of their agreement or proof of her disagreement for his request to omit any of their children from such visitation. If they both agree to not have all children go with father, then father is responsible for providing appropriate care-taking for any child not taken, especially if she is at work at the time of the exchange. She does not want any child left at home alone in this circumstance; requests such written process in order have a written record and avoid confusion.

Interview (talk) with Julian, age 13

Julian (age 13) [and mother] wants the Court to talk with him; and she so requests; asks for the Court and the child to have a conversation appropriate for his age in regards to the issues involved with his visitation with his father; wants the Court to explain to Julian the importance of him abiding by the visitation arrangements post this hearing regardless of what verbal agreements his father makes with him in private.

Mother requests an order that if father chooses to exclude any of the children

Mother requests an order that if father chooses to exclude any of the children from visitation from here on, he is required to provide a written and signed notice in advance directly to her so she can have a record and so that she can prepare for alternative care-taking for the child, if necessary.

Father’s Reply.

On May 2 father filed a 42-page reply to mother’s response to his OSC re Contempt and his RFO re modification of the 8/1/17 Custody and Visitation Orders. The Court has read it all but will only summarize here.

Carlos Julian. He would like to make the Court aware that mother continues to withhold important information on their minor children; Carlos Julian continues to have ongoing insomnia and headaches for over two years; mother controls medical appointments and refuses children counseling; mother has neglected to advise him of drug testing and results for Carlos Julian; she has denied him access to Carlos Julian’s grades by advising school officials that she has sole legal custody, not even allowing him to be on the emergency contact list; he is now able to get the school record as his father and receive grades and daily notifications; has been in communication with his counselor and all his teachers; his grades are deteriorating and he appears to be disruptive in class and has many incomplete assignments; he believe Carlos Julian is living in a toxically stressful environment due to the adult responsibilities mother has placed on him; she is very guarded with her personal life to the point that the children are cautiously frightened to share events including their mother; the children deserve stability.

Adrian. His concern for Adrian is that he looks up to his older brother and is assimilating these same tendencies. Adrian’s behavior has been improving somewhat at school; he recently had to remove a cap gun from him that he brought to school; cap gun was purchased by his grandmother and mother was unaware Adrian had taken it in his back pack; are many instances like this; Adrian remains six months behind grade level and he would like for him to be in a reading program this summer for him to catch up for 4th grade; children need more personal attention and structure.

Izabella has asked him several times over the past year why she and her brothers could not spend more time with him; he loves her with all his heart and finds it difficult to respond; has stopped ballet, swimming and piano lessons due to mother’s conflict and lack of support; children constantly tell him that mother is going to register them for activities and unfortunately two years have passed and nothing has come to fruition; he has tried communicating through text with mother as to camps and activities, even signing them up with transportation; as per Court documents, summer plans require them to determine activities by May l of each year; mother refused to cooperate last year even at their July mediation; she agreed for the children to attend sailing camp, technology and St Vincent de Paul summer camp last summer through the children’s insistence and at the end denied them the opportunity to attend.

Father testifies that mother now claims poor communication and requests that they use an app called Wizard for communication; imagine how children feel with the tension mother creates in their environment that she cannot even say “hello” or make even the most basic of conversation with their father for their very benefit; due to her control the children stayed at home with their grandfather all summer and the youngest continue to be left without any enrichment or summer camps; his major concern is the unhealthy environment mother has placed on the children, mostly for Carlos Julian.

Father testifies that there is a family history of substance abuse in mother’s immediate family.

Father testifies that he would love for children to be able to participate in summer activities with mother’s support; found programs through PAL and the YMCA that provide scholarships; also reached out to SB Foundation for summer school for Carlos Julian to have structure and encourage better grades; recently met with Eduardo F. Cue, Director Community Outreach/Teen Court Program Manager with concerns for Carlos Julian; he has begun taking parenting classes hoping to learn the best way to communicate with his children; has attended Teen Court with Julian on April 24, 2018.

Father testifies that mother continues to harass him and his girlfriend (Jacqueline) by repeatedly falsely accusing them of abuse. Most recently on November 28, 2017, while they were actually out of the country for two weeks, CWS came to their home to investigate, only to realize such was an impossible situation; this is abusive to his children and to himself, having to be interrogated repeatedly by the authorities and knowing how mother feels satisfaction in causing this harassment.

Father begs the Court to see the effects on continuing to allow mother to have full legal and physical custody of the children; they have all been punished enough through mother’s manipulation and lack of cooperation; mother’s malicious intent is due to control; the Court is witness to her lack of cooperation and repetitive Court visits; many times unprepared and with rambling false statements; he realizes that at the end of the day all that is important is the children’s happiness, health and mental stability; will not continue to debate but wish for them to be able to co-parent and be supportive parents of all three of the children equally.

Father testifies that mother mentions several times that he is harassing her but he does not believe asking to spend more time with children should provoke anxiety, physical or mental harassment; idea of sharing 50/50 custody should be very helpful for mother as she struggles with finding child care and imposes on her mother, family and neighbors as she has submitted many witness reference letters to the Court substantiating this to be true.

Father testifies that he would like to respond to the Form FL-312 that mother has filed with the Court in regards to him wanting to abduct the children from the country; she displays her repetitive intimidation and threat to him and the children by instilling ideas that he would possibly remove the children from their home, family and school; he is a legal resident of the United States and has lived in the County of Santa Barbara for the past 30 years and has been working at Costco for l4 consecutive years; has coached AYSO for six years and has even been a Boy’s Scout troop leader for Julian; he chooses to go above and beyond for his children.

Father testifies that his father, brothers, sister, nieces, nephews, aunts, uncles and cousins [approximately 40 immediate family members] live in Santa Barbara and Bakersfield; loves his family in Mexico, but it is not the life he would desire for himself or children; mother continues to threaten and lie with no remorse for how she hurts the children; she seemed to have no problem when she gave permission for him to apply for a US Passport for Carlos Julian two summers ago; they spent a fun week in Cancun, enjoying all the sites and water activities; were able to bond without any of mother’s opposition and constant meddling; she seems to be the only person who feels threatened or endangered by him; family and he have a very respectful and amicable relationship; they are shocked by her behavior.

Father testifies that mother was able to have her mother and sister testify last summer against his girlfriend (Jacqueline) without ever knowing her, all to no avail; children are always happy to be with them; mother instills many restrictions on their minds of what the children can and cannot do with me; Adrian Joaquin is even afraid to take Tylenol with him; children should be allowed to enjoy both their parents without mother instilling fear and guilt.

Father testifies that he would like to bring to the Court’s attention the false information that Maria Correa, mother’s mother, has provided and filed with the Court; the dates she provided are incorrect and not on his custodial days; she claims that father does not want to spend time with Julian; in fact, he is tired of asking for him and asking why he is not coming with father on visitation days; they have not been in communication for approximately 18 months; mother offered to help him in the very early stages of separation due to his uncomfortable living conditions three years ago; he understands her wanting to be supportive of her daughter but she swears to tell the truth and is falsifying facts to cover for mother’s contempt of Court.

Father concludes by testifying that he has requested, to the Court and through mediation several times, to grant him more time with the children; asking is not a crime or type of harassment; mother’s response does not mention that he should not have 50/50 legal and physical custody of the children.

He asks the Court to grant him 50/50 legal and physical custody; believe that the schedule he originally suggested would be fair and provide mother with less responsibility for driving the children to school and picking them up from him. He has found a partner for the last two years who provides love, support and guidance for his children; they are a very happy family unit; make time to do homework, practice math skills and read to meet school requirements; always find time to engage in fun activities; ever since the OSC for Contempt was filed on March 29, 2018, he has seen changes with mother providing better communication with his children and the return of Carlos Julian as of March 31, 2018, Easter weekend and the Tuesdays that have followed. Attaches Exhibits A through C.

Interview with Julian on 5/23

Julian does not want the Court to change the visitation schedule.

Mother’s Declaration filed 5/23/18

It is 17 pages long; the Court read it all including the exhibits. The Court granted the opportunity to both parents to provide additional declarations to the Court related solely to the transcript of the Court’s interview with Julian. Mother’s declaration goes far beyond what was invited and certainly beyond what was expected. She reiterates most of what she already has told the Court and what is set out above. Although the Court read the declaration it was not helpful.

The Court’s Conclusions

The Court has now read everything again. The case was continued to May 15 so that the Court could talk to Julian. He was mature and direct. He does NOT want any change in the present visitation schedule for anyone. The parents have requested that the Court decide both the Contempt OSC and the RFO to modify the visitation on the documents filed. Father has not convinced the Court beyond a reasonable doubt that mother is in contempt. The Court finds (1) no substantial change of circumstances and (2) that the best interests of the children do not justify any modification of visitation.