County of Santa Barbara v. Trenton Fredrick Schirmer/Amy Perkins other parent
Case No: 1385380
Hearing Date: Tue Jun 11, 2019 10:30

Nature of Proceedings: Req. for Order: Modification Child Custody/Visit

Respondent’s (“father”) Req. for Order: Modification Child Custody/Visit filed May 2, 2019

Attorneys: Father in pro per; Marcus Morales for Mother (Other parent)

Rulings: Father’s RFO is DENIED for the reasons set out below.

Analysis:

Mediation Report of 5/31

Family Court Services reports that no agreement has been reached between the parties; this matter will need to be determined by a court hearing upon motion by either party.

Father’s RFO

Filed 5/2; it is 82 pages long; have read it all but will summarize here; seeks changes to the Court’s Order of 10/12/18 when the Court ordered “joint legal” and physical custody to mother with 25% visitation to father; father seeks sole physical custody and joint legal custody; asks that the parties attend meditation on 5/28; he claims mother has acted in bad faith and egregiously violated the new order multiple times; things have gone poorly for Chase while under mother’s care; soon after the October 12, 2018 order, mother moved with Chase to Tennessee and had him hospitalized and institutionalized multiple times; despite mother’s testimony in August 2018 that she would enroll Chase in “three three-hour sessions per week” of in-home ABA therapy, Chase has not had a single session of ABA therapy since being placed back in mother’s custody. Father testifies mother has failed to comply with the last Order in the following ways;

A. Failing to engage Chase in ABA therapy, in violation of Page 5, Paragraph 4 of the Order. She had testified that she would do so in August 2018. It is now April 2019 and Chase has not participated in a single session of ABA therapy.

B. On November 27, 2018, Chase was prescribed and administered Ativan, a sedative psychotropic drug, without father’s knowledge or consent. This was a violation of Page 4, Paragraph d. of their agreement.

C. Despite there being many inexpensive options in Murfreesboro, mother has failed to enroll Chase in physical activities outside of school at least two times a week; this violates the stipulation at the top of Page 6 of their agreement.

D. On January 30, 2019, mother took Chase to see the psychiatrist Dr. Mudumbi without telling father in advance, and directly against his wishes which he had previously made known to her in writing. This directly violates Item 2.b. of form FL-341(E) of the October 12, 2018 Order.

E. Mother took Chase to the St. Thomas Rutherford Hospital ER on November 27, 2018 and to the Vanderbilt University Medical Center Children’s Hospital on November 28, 2018; father was not informed of the first visit at all until after it occurred, and he was not informed of the second visit until Chase had already been in the ER for several hours. This violates Page 4, Paragraph b. of their agreement.

F. Mother failed to notify him in advance of Chase’s December 7, 2018 IEP meeting at his new school in Tennessee, in violation of Page 4, Paragraph e. of their agreement.

Alternatively, father asks that the Court modify the October 12, 2018, Order so that he can better ensure that Chase receives his necessary care, treatments, and therapies in accordance with the recommendations of Dr. Sices. He has worked diligently to establish proper resources for Chase in Tennessee which are in accordance with the recommendations of Dr. Sices. His concern is that mother will utilize them inconsistently, haphazardly, or not at all, so father would like to establish an order which specifically requires her to do so. Moreover, mother’s recent move offers opportunities for additional visitation which she has previously denied, so he would like to modify their visitation schedule as well.

Mother’s Response filed 5/14

It is 17 pages long; have read it all but will summarized here; she testifies that father’s declaration is accusatory in nature and has twisted the truth to suit his own aim at gaining “possession” of Chase; his obsession with gaining custody, personal attacks and slander towards her has created hostile parenting communication between them; father is constantly accusatory of her care of Chase; he makes inappropriate comments through texts to her and accuses her of parental alienation when Chase is in her custodial care; father continues to push forward this accusation that she is abusive towards Chase which was found false by this Court less than one year ago.

Mother testifies that upon moving to Tennessee she obtained agreement from father that he would not attempt further litigation of custody; since moving Chase to Tennessee, Chase has made a significant improvement since starting school there; father’s actions made Chase’s transition difficult; Chase has been diagnosed as “Aggressive behavior, ADHD (Attention Deficit Hyperactivity Disorder), Intermittent Explosive Disorder, Chronic Diarrhea, Autism Spectrum Disorder and Impulse control disorder.”

Mother testifies that she has encouraged extra visitation between Chase and father since the entering of the last court order, even though father makes it difficult to co-parent; she does not hold this against Chase and father’s relationship; she will continue to facilitate visits in and outside the scope of the court order, for Chase’s benefit. She also testifies after trial, they moved to Tennessee and father was agreeable to this move; move was due to the family support they would receive; her mother is a half a mile from her house and her sister is just across town.

Father’s Reply

Filed 6/4; comprises 36 pages; read it all; summarize only; repeats that the changes of circumstances justifying the modification of the custodial orders is mother concealed from the Court during the August 2018 trial and him during settlement negotiations of her intention to move Chase from his school, doctors and therapeutic treatments in Santa Barbara to Oklahoma where he is not receiving the care that he received in Santa Barbara and for which father bargained Chase would receive when he entered into the October 2018 settlement agreement and when he agreed to the move to Oklahoma; additionally mother has flouted the court orders and has failed to follow the very detailed guidelines for Chase’s care; is prepared, as he was during the August 2018 trial, to maintain full custody of Chase and provide him with the Court ordered therapies and medical treatment that mother refuses to provide; requesting the Court grant him primary physical custody of Chase with additional provisions as outlined in Custody Proposal A of his RFO filed May 2, 2019; alternatively requests that the Court grant his Custody Proposal B of the same RFO.

Mother’s evidentiary objections to father’s Reply Declarations

The Court is familiar with In re Marriage of Heggie (2002) 99 Cal.App.4th 28, [We recognize that it is very common for family law practitioners to include argument in their declarations (we know it is done all the time, and we do not want to single out the trial lawyers in this regard), but it is a sloppy practice which should stop] and CCP §436 (a) [The court may, upon a motion made pursuant to Section 435 or at any time in its discretion, and upon terms it deems proper: (a) Strike out any irrelevant, false, or improper matter inserted in any pleading. (b) Strike out all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court. Additionally, CCP 437c(q) provides: In granting or denying a motion for summary judgment or summary adjudication, the court need rule only on those objections to evidence that it deems material to its disposition of the motion. Objections to evidence that are not ruled on for purposes of the motion shall be preserved for appellate review.

The Court has said the following with rhythmic regularity but no one seems to listen. Lawyers and parties who are self-represented must use some reasonable restraint in their submission of declarations that contain inadmissible statements and opposing counsel must use some reasonable restraint in making their objections. Many of the objections made by moving party are valid. The Court urges again, that those who are submitting declarations to read them before filing them and eliminate the inadmissible testimony, and counsel who are objecting to the inadmissible testimony, to resist exercising every conceivable objection, on the theory that in most cases there is virtually no harm done by the inadmissible statement and in every case the Court is inevitably asked to read and rule on each objection.

The Court has elected to rule on each objection as follows:

1. Father’s Declaration, page 2, #4 – Objection, Hearsay; Lacks Foundation

SUSTAINED

2. Father’s Declaration, page 3, #6, lines 15-16 – Objection, Hearsay; Lacks foundation

SUSTAINED

3. Father’s Declaration, page 3, #7 – Objection, Hearsay, Lacks Foundation

SUSTAINED

4. Father’s Declaration, page 4, #9, lines 10-13 – Objection, Hearsay; Lacks Foundation.

SUSTAINED

5. Father’s Declaration, page 4, #10 – Objection, Hearsay; Lacks Foundation.

SUSTAINED

6. Father’s Declaration, page 4, #11 – Objection, Hearsay; Lacks Foundation.

SUSTAINED

7. Father’s Declaration, page 5, #12 – Objection, Hearsay; Lacks Foundation.

OVERRULED

8. Father’s Declaration, page 5, #13 – Objection, Hearsay; Lacks Foundation.

OVERRULED

9. Father’s Declaration, page 6, #14, lines 4-7 – Objection, Hearsay; Lacks Foundation.

OVERRULED

10. Father’s Declaration, page 6, #15 – Objection, Hearsay; Lacks Foundation.

OVERRULED

11. Father’s Declaration, page 6, #16 – Objection, Hearsay; Lacks Foundation.

SUSTAINED

12. Father’s Declaration, page 7, lines 1-3 – Objection, Hearsay; Lacks Foundation.

OVERRULED

13. Father’s Declaration, page 7, #18 – Objection, Hearsay; Lacks Foundation.

OVERRULED

14. Father’s Declaration, page 7, #19– Objection, Hearsay; Lacks Foundation.

OVERRULED

15. Exhibit A– Objection, Hearsay; Lacks Authentication.

SUSTAINED

16. Exhibit B– Objection, Hearsay; Lacks Authentication.

SUSTAINED

The Court’s Conclusions

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.

The Court has now read more than 130 pages in preparation for this hearing not to mention the evidentiary objections; much of what was said could surely have been said in fewer pages; the testimony is contentious and acrimonious; that in itself is not productive. But with all that said mother’s testimony is persuasive and the Court agrees with her analysis; there has been no material changes in circumstances since the last order was entered and the best interests of Chase support mother’s request that father’s RFO to Modify Custody be denied.