Susanna Munoz v. Michael Mata
Case No: 1383554
Hearing Date: Tue Jun 04, 2019 10:30

Nature of Proceedings: Req. for Order: Modification Visit

Req. for Order: Modification Visit

Attorneys: Marcus Morales for Petitioner (“mother”); Respondent (“father”) in pro per

Ruling: DENIED, for the reasons set out below.

Analysis:

This case was filed in 2011; it has seen a lot of courtroom time; the last time this Court addressed the issue was just on April 23, 2019, when the Court made orders; this order came after the Court interviewed Andrew and considered lengthy declarations.

Father filed his RFO on 5/13/19 less than three weeks after the last Court Order; seeks modification of orders relating to minor child born 1/2005 (age 14); father testifies via declaration that he was very pleased with the judge’s ruling that occurred April 23, 2019; unfortunately there were issues immediately after the new orders.

(1) First issue: he had an encounter with mother on April 24, 2019; she sent him a text message stating that she would not be picking up Andrew until the following week, which would have been May l; he tried to get some clarification if that included her weekend visitation days which were April 26-28; received no response from mother.

(2) Second issue: comes on Wednesday May 1, 2019; she failed to pick up Andrew at 5pm as the order states; mother never reached out to father that she would not be showing up to pick Andrew up; been a major issue in the past that mother does not know how to communicate, which is currently still going on and making her own visitation schedule; on May 8th, 2019, mother picked up Andrew from father’s mother’s residence at 5:30pm; Andrew was dropped off at 8pm, but was very angry and would not talk to father; in the time Andrew went to visit her he encountered a physical altercation with his mother while trying to retrieve his personal belongings that belong to him.

Father testifies that on Friday May 10, 2019, mother messaged father that she would pick up Andrew; father asked her to call Andrew to talk to him; he did not want to go with her on her scheduled visitation hour at 5pm; when mother arrived to pick up Andrew, mother told Andrew to get in the car; he declined; Andrew did tell her why he would have to go with her; there was nothing there for him; mother said: “you’re right, it’s not your room anymore and you do not live there anymore, and he was no longer welcome there anymore.” Father was floored that mother would even say such hurtful things to Andrew; she has only seen him for two and a half hours the week prior since the new ruling; mother proceeded to verbally attack Andrew and father; in the conversation she got real angry with Andrew stating to him, “he should cut his hair because he looks like a hobo;” father thought it would be making a big mistake sending Andrew with her especially after seeing her act so hostile towards him in his presence.

At this point Andrew was very disappointed with his mother’s behavior towards him; vowed to never go back with her again willingly; father told Andrew he had orders to follow the judge’s orders; he responded that he would like to write the judge a letter, on why he doesn’t feel safe or comfortable being with her, especially after the altercation on May 8, 2019; father contacted the Ventura Police department; they advised him to go back to court.

Father now requests visitation to be modified as follows:

1. The visitation to remain, but at any time Andrew feels unsafe, threatened, or uncomfortable, Andrew would be allowed to make the decision to call father at any time during visitation hours, if he wants to come back home during mother’s time when feeling this way.

2. That the Court consider supervised visitation.

3. Transportation: For the holidays he would like mother to pick up Andrew in Ventura at the usual pick up location being that buses don’t run on holidays and that is father’s main source of transportation.

4. Also considering that mother is the receiving parent, as far as the other visitation days starting with Wednesdays, mother can pick up Andrew at father’s mother’s residence at 1131 Punta Gorda St in Santa Barbara; is only a few blocks away from mother’s home; wants mother to be responsible for picking him up and dropping him off.

5. For her visitation weekends twice a month that start Friday at 5pm, she can pick him up at same address in Santa Barbara and father will be responsible for picking him up at Sunday’s at 5pm at mother’s home; this would be during school season.

6. For summer vacation mother can pick up Andrew in Ventura at 5pm Friday’s since Andrew will not be in school and they will be home in Ventura; father will then pick Andrew up on Sunday’s at 5pm in Santa Barbara; receiving parent should always be responsible for pickups.

Letter “To the Judge” from Andrew dated 5/11/19

He explains the events of May 8, 2019; have read it all; he concludes that he does not feel safe being around his mother and he does not like how she emotionally abuses him because he chose to live with his father. .

Mother’s Response filed 5/21/19

It is 12 pages long; read it all; will only summarize here; she asks

1. The Court deny father’s request to modify child custody.

2. The Court deny father’s request for changing the place of visitation exchange from Santa Barbara to Ventura. The receiving parent should pickup Drew at their Santa Barbara residences. Michael’s Santa Barbara residence is 1131 Punta Gorda Street, Santa Barbara, CA and mother’s address is 1317 East Mason Street, Santa Barbara, CA.

3. Father should be sanctioned in the amount of $885.00.

Mother testifies that per the January 16, 2013, court order, the receiving parent is to provide transportation to and from visitations. For the past six years, they have followed this arrangement, without issue; she always picks up Andrew from school or at a house his father stays at 1131 Punta Gorda Street, Santa Barbara, CA. She rarely ever has picked up Drew from another house father stays at in Ventura.

Father’s Supplemental Declaration filed 5/21/19

It materially changes what he requested in his RFO; testifies that he wants Andrew to have a relationship with mother, but this has become very toxic; they need counseling to talk about their feelings and their differences; mother seems very angry and this makes Andrew not want to see her.

Father now requests that the Court modify Mother’s visitation as follows:

a. No overnight visitation;

b. Mother’s visitation to be supervised by maternal grandfather, Javier Munoz;

c. Visitation to occur on 2nd and 4th Sundays of the month from 1- 4 pm;

d. Meet at the fountain at the entrance of Stearn’s Wharf;

e. Father will provide transportation to and from the visits;

f. Mother must confirm that she will be visiting by texting Father at least three (3) hours before the scheduled visitation. If she does not text in this matter, Father may consider the visitation canceled;

g. If Mother is more than 15 minutes late for the scheduled visitation and has not contacted Father with a good cause explanation for the lateness, then Father may consider the visitation canceled.

Order Mother and minor child, Michael Andrew Mata, to attend family counseling to address their relationship problems.

The Court’s Conclusions

This Court will not make any modification to the last Court Order that was filed just 20 days prior to his RFO seeking modifications. Father’s RFO comes vastly too soon on the heels of the last Court Order; his 5/13 RFO has demonstrated that no substantial change in circumstances occurring since the 4/23 order; his reliance on the very short truncated exchanges and confrontations are clearly not persuasive; the law is very clear on the issue of seeking modification of previous orders; the Court said all of that last time but no one seems to listen, so the Court will say it again:

It has long been recognized that the Court, on a showing of changed circumstances, may modify a custody and time share 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.

1. Substantial showing of changed circumstances in required. To justify ordering a change in custody or time share 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 or time share 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.

2. 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 and time share 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 time share has been recently adjudicated or agreed to between the parents, the child’s need for continuity and stability will mean that maintenance of the current arrangement will be in the best interest of that child.