Nicole DeMarco and Rosary DeMarco
Case No: 19FL01208
Hearing Date: Tue Aug 20, 2019 10:30

Nature of Proceedings: Req. for Order: Child Custody, Visitation, and Child Support

Petitioner’s Req. for Order: Child Custody, Visitation and Child Support

Also on for CMC

Attorneys:

Channe G. Coles for Petitioner [“mother” and sometimes “Nicole”]

Renee M. Fairbanks for Respondent [“father” and sometimes “Roy”]

Rulings:

1. The request for an evidentiary hearing is granted; need to know when you will be ready and a time estimate.

2. The Court presently estimates three days and has scheduled the case for Tuesday 9/17 at 10:30 am calendar call; testimony to begin at 1:30 pm and continue Wednesday, Thursday and Friday.

3. At this point in the proceeding third party declarations are ignored; not considered.

4. But with that said, the Court is familiar with Family code section 217 [The right to live testimony regarding family law hearings may be forfeited]; Marriage of Deamon 2019 DJDAR 4244 [wife contends that the family court should have based its ruling on the live testimony of Deamon, including her cross-examination of him, rather than solely on Deamon’s declaration, wife did not fulfill the procedural requirements to allow that to occur because she did not bring Deamon before the court to testify]; and Marriage of Swain 21 Cal.App.5th 830 [Statutory exception to hearsay rule permitting courts to rely upon affidavits in certain motion matters does not apply to a motion to modify a family law judgment where the opposing party seeks to exclude the declaration on the ground that he or she is unable to cross-examine the declarant; in that situation, the opposing party’s objection not only seeks to exclude hearsay evidence, but also amounts to an assertion of the party’s statutory right to live, competent testimony that is relevant and within the scope of the hearing.] Thus there can be some question in the legal literature about how best to proceed with third party declarations and testimony. This Court will adopt for this case the following rules: no third party declaration is admitted, considered or argued unless the party relying on the third-party testimony makes the third party declarant available for cross examination on the date and time requested (24 hours in advance) by the other party.

Analysis:

Petition for Dissolution was filed on 6/7/19; seven year three month marriage; one child, DOB 9/27/14;

Emergency Protective Order protecting mother from father was obtained on 5/30/19 to expire on 6/6. It apparently has not been continued in effect.

Mother’s RFO.

Filed 7/2 and requested:

a. Sole legal and sole physical custody of Audrey.

b. Limited supervised visitation of Audrey to father as outlined in Attachment 2c, due to the history of domestic violence, his alcohol abuse and addiction, and his highly questionable parenting decisions which put Audrey in danger.

c. Asks that father be ordered to register for BACTrack View Plus, a handheld breathalyzer which connects to father’s phone and sends verification that he is taking the test and will send mother the results. [Information from BACTrack View was attached to the RFO as Exhibit B.] BACTrack View Plus shall be at his sole expense.

d. Father be ordered to do random monitored urine drug testing at MedCenter. Father must do the drug test within six hours of the written request by mother or her attorney. Drug tests must test for the following: amphetamines, benzodiazepines, marijuana, methadone, opiates, hypnotics, barbiturates, cocaine, MDA-analogues, methaqualone, phencyclidine (PCP), and all test must be tested for adulteration. Father shall pay for all tests with a “positive” result for any of the above substances, and mother shall pay for all tests with a “negative” result for any of the above substances.

e. That father be ordered to attend weekly Alcoholics Anonymous meetings and provide proof of weekly attendance.

f. That father be ordered to attend weekly Narcotics Anonymous meetings and provide proof of weekly attendance.

g. A “No MATCH” clause, whereby father shall not molest, annoy, threaten, contact, or harass her; includes coming to her home or workplace without prior agreement; exceptions are to be carved out for peaceful custody exchanges and communication through TalkingParents regarding Audrey.

h. Guideline child support to be calculated following the exchange of necessary financial disclosures.

The visitation mother apparently requests is father having supervised visitation scheduled every Tuesday and Thursday from 5pm to 7pm and an additional two hours every other Saturday; agrees to a supervised visitation by his father as had been previously done. Attaches Exhibits A and B.

Response to Petition

Filed 7/2; sets out a later separation date of 5/29/19 for an eight year one month marriage.

Continuance

On 7/5 the RFO was continued by stipulation to 8/20.

Mediation reported on 8/7 that there was no agreement reached.

Father’s Response to the RFO filed 8/7

He asks that the Court deny mother’s RFO for Modification of Child Custody, Child Support, Visitation, and the other orders requested in the moving paperwork and he requests that the Court grant him the following relief:

a. Joint legal and physical custody, pursuant to a 2-2-5 schedule; and,

b. Guideline child support based upon a 50-50 custody schedule.

Father testifies that most issues presented in mother’s declaration are fabricated; he is sober and has been for years; never been violent toward mother; she has refused to allow any unsupervised visitation between Audrey and him; she continues to block him from attending any of Audrey’s extracurricular activities, demonstrating that she is actively undermining his ability to be a parent to Audrey; that he has multiple character witnesses who attest that mother’s description of him is fabricated; he has never acted in a manner that is not in Audrey’s best interest.

As for the EPO, he testifies that throughout our marriage, he has never once been violent with mother or Audrey; in addition to filing her Petition for Dissolution of Marriage, Nicole requested an Emergency Protective Order the day after they had an argument; what was omitted from the police report, but mother admitted to his father, was that she was poking him in the chest; she had struck first; after seven or eight hits he grabbed her wrist to get her to stop; he was not arrested; was only the first instance in which she only told the partial truth in order to paint him in a bad light; her declaration is littered with misleading accusations and fabrications.

As for his Ambien use, since leaving rehab in 2015, he has been Ambien-free; now has been Ambien-free for four years; since Audrey’s birth, he has tried to show mother that he wanted to be a present father for Audrey; mother has repeatedly refused to aid a loving relationship between Audrey and him; despite mother’s attempts, Audrey is fully aware that he is available to her.

As for AA, in late 2017 he began leading AA meetings, and this changed his work schedule; late 2018, he was trying to better himself; started focusing on recovery; still participated in family life, but felt that he could be a better father and person if he focused on his recovery for a couple months; started attending 5-6 meetings per week; now currently sponsoring three gentlemen, as well as leading meetings; helped his emotional state; it created problems at home. In all instances where mother claims he “took off right away,” if he did so, he did so because he did not want to cause any conflict with Audrey there; testifies that mother and he fought for most of marriage and he did not feel that Audrey should be involved in their arguments.

As for supervised visitation he testifies that the supervised visitation schedule comes out of nowhere and is inconsistent with prior behaviors; leading up to the divorce, mother never asked or demanded that his time with Audrey be supervised; she is alleging that he is a threat to Audrey with nothing to suggest otherwise; he still drives in his car with Audrey; feeds her; plays with her and spends time with her with as much as is allowed; currently, mother only permits four hours per week that he can spend with Audrey; has tried to initiate contact with Audrey while she is not in his care; mother has been refusing to answer the calls; she will not answer her phone for him to speak with Audrey; claims this is not in Audrey’s best interest.

Father’s “third-party” declarations

Andreas Blomst’s 6-page declaration (father’s best friend); Kathleen Kenyon’s 4-page declaration (father’s mother); Roy DeMarco, Sr.’s 3-page declaration (father’s father); Anna Cessario’s 3-page declaration (father’s sister).

Father’s I & E

Filed 8/7; earnings $7,400/mo over last 12 months; additional $72/mo from private insurance; cash $20,000; all other property $13,000; living expenses $1,657/mo; lives with grandmother and aunt; paid his attorney as a retainer $10,400; time share is 2% with him and 98% with other parent;

Father’s DissoMaster calculation

Child support is $74/mo;

For father assumes: 49.99% time share; filed Single; 1 exemption; $7,613 in salary; $36/mo other nontaxable income;

For mother assumes HH/MLA; 2 exemptions; salary of $6,408/mo; $140/mo 401 contribution; $340/mo health insurance;

Mother’s DissoMaster calculation

Child support is $1,214/mo

For father assumes: 5% time share; filed Single; 1 exemption; $7,792 in salary; $880 in 401 contribution; $57/mo self-employment income; $1,076/mo other taxable income; $330/mo other nontaxable income per month;

For mother assumes HH/MLA; 2 exemptions; salary of $7,059/mo; $142/mo 401 contribution; $99/mo other taxable income; $340/mo health insurance;

FLIS

On 8/7/19 Renee Fairbanks, lawyer for father, filed a FLIS in anticipation of the CMC set for 8/20; reports that this hearing is set; response filed; one minor child [“Audrey”] age 4 years; as part of the CMC she points out the discovery that needs to be done; father will complete and serve PDD on 9/3/19.

Reply

Filed 8/13; it consists of 30 pages; Nicole asks the Court to allow her declaration to exceed five pages given the need to respond to the fabrications; besides Nicole’s declaration the Reply includes the declarations of Timothy Ray (Nicole’s father), Naomi Ray(one of Nicole’s younger sisters), Mary Ray (Nicole’s mother), Noelle Ray (one of Nicole’s younger sisters); and Damaris Garcia (Audrey’s preschool teacher); also includes Nicole’s reply to Roy’s “third-party declarations.”

Nicole testifies in her declaration that Roy moved out of their home on 7/22/18 to work on his ongoing addictions to marijuana, prescription medication, and his alcohol use; between that day and 5/30/19, Roy had full access to spend more time with Audrey; however, he chose not to and instead kept to the schedule of seeing her for approximately four hours per week on the weekdays when he was in town, and occasionally two to three hours on the weekends even though she regularly sent Roy Audrey’s schedule and kept him informed of her extracurricular activities which he had (and still has) the freedom to attend whenever he would like; only time Roy was “blocked” from swimming lessons was when the EPO was in effect; she has kept Roy informed of Audrey’s activities through emails and texts, hoping he would take an interest in her activities, become a more involved parent, and develop a healthy bond and relationship with Audrey; repeatedly told Roy that he needs to participate in Audrey’s life consistently, not just see her for a few hours a week, but really be involved so that they can form a strong father-daughter relationship; Roy dismissed her statements as condescending; she talks positively to Audrey about her time with Roy.

Nicole testifies that Roy’s sudden request for a 50/50 schedule would be highly disruptive to Audrey’s overall well-being; Roy set the schedule they have been operating on for the last year; Roy requested only limited time with Audrey, and he has always been fine with having a third-party present for his visitation; his statement that Nicole’s proposed schedule realistically does not work for him only furthers her point that this is about Roy, not about Audrey. She contends that Roy is an addict and has been abusive toward her, even body-checking her as recently as 6/15/19; requests for BACTrack View, AA meetings, NA meetings, random observed drug testing at MedCenter or Recovery Road Medical Center, supervised visitation, and a No MATCH clause, guideline child support as calculated by Ms. Coles and sharing childcare costs must be granted. (Attaches Exhibits A through E that I have seen.)

Request for evidentiary hearing filed 8/15 by Roy

The request for evidentiary hearing is made in response to mother’s Reply Declaration which includes new information on reply leaving no time or option for father to respond; identifies six witnesses; requests that the Reply Declaration of mother, the declaration of Noelle Ray, the declaration of Demaris Garcia, the declaration of Mary Ray, the declaration of Naomi Ray, the declaration of Timothy Ray, all attachments to the opposition to the Responsive Declaration to Request for Order, be stricken in their entirety, as hearsay, argument, improper opinion, relevance, and includes new evidence on reply.

The Court’s Conclusions

The request for an evidentiary hearing should be granted; need to know when they will be ready and a time estimate