Tentative Ruling

Judge Thomas Anderle
Department 3 SB-Anacapa
1100 Anacapa Street P.O. Box 21107 Santa Barbara, CA 93121-1107

FAMILY LAW
Carolin Isabelle Hauser and Daniel Sckolnik
Case No: 1417486
Hearing Date: Tue Nov 12, 2019 10:30

Nature of Proceedings: Req. for Order: Modify Child Custody

Ruling:

1. The Court has read everything and spent a lot of time on this case currently and over the years. Then Court has decided to exercise jurisdiction on the basis that both parents have submitted the case to this Court. Additionally, the original court orders were made here.

2. The Court finds nothing in the declarations that support any change in the underlying orders. The fact that the parents seem to be bent on moving to Mexico, then mother moving to Arizona and father’s plans are in a state of being settled is not a reason to change custody and visitation. The Court remembers this case very well and there are parents here who can and should make the original order work.

3. The original order was agreed upon between the parents; they were married for 7 years; they had two children; one born 6/2006 and one born 1/2011; they entered into a Stipulated Judgment in 1/2014; pursuant to the 1/2014 Order mother and father were awarded joint legal and physical custody.

4. Mother has tried to change that Order several times now; each time seeking sole legal and physical custody; once ending in a decision of 11/2014; again in 2016-2017 ending in a decision of 5/23/17; and now in 2019.

5. For the reasons set out in the following paragraph this Court again, as I have in the past, can find no reason to modify custody or time share. It is not in the best interests of the two children.

6. 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.)

This Court finds that the children’s need for continuity and stability will mean that maintenance of the current arrangement will be in the best interest of the children.

Background

This case has been vigorously litigated since it was filed; a Judgment of Dissolution was filed in early 2014; the parties have two children: one born 6/2006 (now age 13) and one born 1/2011 (now age 8); was last on calendar in 5/2017; mother made a modification request; mother’s request was for sole legal and physical custody; it was denied; there was nothing in the paper work that demonstrated a preponderating change of circumstances that justified changing the custody; the Court said it was not unsympathetic to mother but she had not met the burden of proof to establish that the agreement they reached should be changed; the fact that father is, or was, homeless did not mean he could not jointly co-parent.

Mother’s current RFO filed 10/23/19

It is lengthy and complicated; a lot has happened in her life and the Court has read it all but summarizes here.

She seeks sole legal and sole physical custody; in her initial RFO she wanted father to have Daily/Weekly Independent activity with the children; upon prior arrangement. (Plans need to be made 3 months in advance and for at least 3 months at a time)

Mother testifies that since the last hearing, father has continued to not fulfill his 50/50 parental obligations; he continues to emotionally blackmail and harass her; she has stress from this relationship; developed chronic pain and chronic fatigue; lists everything that has occurred since last motion made in June 2017; this Court ordered for him to find appropriate housing consisting of a private room for daughter Maja and a separate room for himself and Nouri; instead of following the orders father proceeded to live in a one-room studio with both kids; for the entire school year 2017/18 she paid $700/ month for school, he $300; she paid for all of daughter’s gymnastic and most of her clothes; she paid for most of son’s clothes and all haircuts.

Mother testifies for the school year 2018/19 she wanted to move to Mexico, to take the kids on an adventure; father agreed but only under the condition of her paying his way there; he has been emotionally blackmailing and narcissistically abusing her since 2005; they started tossing the idea for the move around then and he had taken her to court for child support; ended up settling out of court; he dropped the request for child support by extracting $5,000 out of her; in 2018 daughter’s schooling here in Santa Barbara fell through, creating an opening to actually leave Santa Barbara and go to Mexico; father came up with a bunch of conditions under which he would be “willing” to “go along;” the agreement they made clearly states that if one or both of them want to leave Mexico in September 2019, the other has to come along; he is now not keeping this agreement; he refuses to acknowledge this agreement based on the premise that she didn’t pay what she promised him; in fact she paid more than agreed upon.

Mother testifies that she and her now ex-husband Paul Carson paid all the money requested; she had the kids by herself in Mexico; she moved a 5 bedroom house and did it in a week, so kids could start school at the beginning of September [2018]; she calculates the money she paid; they had promised Maja and Nouri visits to Santa Barbara to stay in touch with friends; father made none of this happen; she did; Maja was able to go to SB 3x, Nouri 1x; all trips paid by her (total cost apps. $3,000); she also paid most of Maja’s gymnastic there in Mexico; she let him use her car or paid for a driving service when the car was in the shop; so she did provide transportation as per their signed agreement, way beyond Dec 2018; she did all the volunteer hours for both school years at both kid’s schools.

Mother testifies that Maja started at a homeschooling based program; she bought all the materials worth $1,500; spent time researching schools and enrolling the children in Mexico; once they moved to Mexico the schooling for Maja didn’t work out; she didn’t like going to father’s as he never provided air conditioning and it got so hot she couldn’t sleep there; he needed time to get ready for the move to Mexico; during summer 2019 she let father use her house with air conditioning and lived at a friend’s house; incurred an extra cost; father never paid her for any gas or electricity or internet usage; Nouri’s school was next to her house but 4 kilometers from father’s; he left Nouri to his own devices and Nouri would end up at her house most days till 3:30-4 pm; she ended up driving Maja to and from gymnastic essentially having her till 7:30 pm on many of father’s days; most days the children begged her to stay with her as they didn’t want to go to father; partly because he works on his computer all day and leaves them to fend for themselves’ and partly because of the no air conditioning situation; he does feed them well.

Mother testifies that in August 2019 a new opportunity opened up for her as the executive director of With His Hands Foundation near Sedona Arizona; opportunity has come into her life through David Becket, to whom she is now engaged; he has helped to provide for her children since the moment he stepped into her life; for the School year 2019/20 they agreed on at least getting the kids started for the first few months in Mexico; David and she paid for most of Maja’s homeschooling again ( with books $1,000 so far); she had struggled to run her business the entire year in Mexico and has been living very minimally. Maja only attended a homeschooling initiative for a few months; the rest of the year they tried to home school; this situation was not what she really needs to keep up with school; it was very expensive for her; both children wanted to go back to the US.

Mother testifies that she had contracted a bad case of dengue fever in June and it is now extremely dangerous for her to stay in Mexico health-wise as a second infection is generally 3 x more intense then the first time was; she kept continually being exposed to mosquitos and couldn’t risk getting sick again; in Arizona, she has housing, a car; kids are enrolled in a Waldorf Charter school which is minimal cost; father was offered living space on the property in Arizona in exchange for work per week; he declined; he is still refusing to take on a job and is, as far as she knows, living from Social Security; he has no ties in Mexico; he is there on a visitor visa; so were she and the kids; final straw was him holding daughter’s passport hostage and refusing to let her and the kids go to Sedona, Arizona.

Mother testifies that she could not afford to stay any longer in Mexico; children wanted to leave too; Nouri’s visa had expired; she had decided to take the kids to the states against father’s will but in accordance with their written agreement, which was for only one year in Mexico; she is drawing the line on his mental narcissistic controlling abuse; she is done; kids are now with her full-time; both enrolled and attending at Desert Start Community School in Cornville, AZ (a tuition free Waldorf inspired School); because of what’s been happening all along since the divorce, she comes before this Court once again and asks for full custody of the children; asks to put protection for her in place so father cannot keep harassing her; last time she came before this Court, father was told he would have one more chance to pick up his side of the 50/50 responsibility that comes with the right to 50/50; she has given him more than a fair chance; over two years and no change; she thinks it is fair to say that he is forgoing his chance and that full custody at this point should be awarded to her; father can see and be with the kids as much as he likes; she is not trying to separate him from the children.

Father’s Response filed 11/5

It too is very lengthy and complicated; have read it all but will summarize here.

He does not consent to mother’s request; in fact he asks for exactly the opposite; he seeks sole legal and sole physical custody. Visitation schedule to be determined in mediation [he does not say where or when that is scheduled or even if it is to take place.]

Father testifies that the terms of the divorce, as decreed by SB Superior Court, established 50-50 joint legal and physical custody, which has remained in effect ever since, despite a couple of failed attempts by mother to modify the custody agreement; over the last six years, they have managed to successfully co-parent, despite bouts of difficulties; in 2016, mother met Paul Carson, got engaged a few months later, and then married; over the next two years, Paul convinced him to move to Mexico with him and mother; he had no interest in making such a move, and as their court-approved parenting agreement stipulated that “mutual agreement on any State and Country travel” was required; no such move was made; in 2017, it became clear that Maja’s beloved Waldorf school, which she had attended her whole life, would not be offering a seventh-grade class; with mother’s promise of a great Waldorf school near Paamul for both Maja and Nouri, some financial incentives offered to him to compensate for wages he would lose by virtue of being down there, and a belief that the children could benefit from seeing mother in a happy domestic environment, he agreed to move there for one year; if it didn’t work out, they would return to the States.

Mother and the children moved to Mexico in August, 2018; he followed in September; he had an apartment close to Paamul for him and the children, and they stayed with him on the same 50-50 schedule that had been in place since 2014; testifies that he has provided equally for the children’s education; Paul texted him to let him know he was divorcing mother; divorce was finalized several months ago; in May 2019, mother met Mike Kilmer, who moved into her house in short order, living there along with the children on the days they were with their mother. In July, Mike returned to Texas with mother but she returned to Mexico, and Mike never returned.

In July, mother met David Becket, who came to visit her from Sedona, Arizona, having connected with her on an internet dating app; David moved into her house, living there along with his children on the days they were with their mother; he testifies that she constantly told the children that they were going to move to Sedona; there are no permanent structures on David’s property; children said they didn’t want to go; they offered him a place to stay on his property in exchange for moving there with the children. He began to feel less than comfortable with David being around his children; around the end of September, David returned to Sedona to set up yurts in preparation for mother’s arrival, though she and father never came to agreement to move there with the children; David proposed to mother; during the second week of October, he told mother that while he would consider moving to Sedona with the children by the end of the calendar year, provided he could reach some fair agreement with David regarding renting space on his property, he didn’t want to pull the children from their school environment until the fall semester ended. Mother became furious and hysterical at this news. On October 10, mother said she would be taking the children to Texas for a business convention; he requested that she show him the return tickets for the children before he agreed, while also insisting that she sign an agreement to return with the children on October 20, 2019; she signed the document; on October 20, Maja texted him that “Mama is taking us to Arizona!!!!!!” They have not returned to Mexico, in violation of their court-ordered custody agreement. Maja said that she had tried to call 911 upon arrival on David’s property, but he tackled her to get the phone away. This prompted father to call to the regional Sheriff’s office; a mother of Maja’s friend said that her daughter had texted her that she had been kidnapped.

On October 21, he called the Sheriff’s Office in Yavapai County, Arizona, where David has his property; asked them to do a welfare check on the children, and concurrently he attempted to file an ex-parte emergency motion, not sure of their safety; Yavapai sheriffs said the children don’t seem to be in any immediate danger, having gone to the property and also having spoken to Maja at the school.

Father testifies that as of November, 2, 2019, the children are still in the Sedona area of Arizona, camping out on David’s property with mother; children are currently living in a tent and in a small camper; there are no showers on the property, and the children have to dig holes in the ground for bowel movements; they have been enrolled in school there, and mother is proceeding as if everything is normal, despite the fact that she has basically abducted the children. Jurisdiction appears to be an issue, as the children, along with mother and he, have all been residents of Mexico for the last year; law enforcement says there is little they can do, again stressing the issue of Jurisdiction; mother has filed a RFO requesting custody change, to which this declaration is a reply.

Father testifies that mother has failed to arrange the required mediation prior to the fast-approaching court date; he has taken a pro-active stance and contacted the mediation office, and is awaiting a reply; he does not want to push back the court date, leaving the children in limbo for an even longer period of time.

Father testifies that the problem right now is that he wants to make sure that the children are doing OK. He is going to Sedona and wants to have the requisite certified court documents to show to the Yavapai Sheriff’s office so they may assist him; has tried to make arrangements with mother to take the children for a few days, while simultaneously assuring her that he won’t try to take them out of state or country. Making these arrangements have been difficult, though he has been assured by the local sheriff’s office that they would be available to provide a civil standby, in an effort to ensure an orderly transition of the children to him; problem also is that taking the children back to Mexico, where he still has an apartment, seems nearly impossible.

Father testifies that he wants to bring the children back to Mexico; realizes that this might be extremely difficult due to jurisdiction issues and because the mother is adamant that she doesn’t want to return; he is willing to relocate back to Santa Barbara, which is where both children have clearly stated that they would prefer to be; to do this, he would require sole custody; at this time, he hasn’t yet re-established residency in Santa Barbara; he has been in touch with his previous landlord in SB, who owned the rental property that the children loved, as it had a big yard with a pool, a hot tub, and a park within walking distance. The landlord suggested the apartment might be available within the next six weeks.

Father continues to work part-time as a professional writer, and has worked for the same company for four years in this capacity; he has some flexibility in relocating to Santa Barbara, if it is best for the children; without being granted sole custody, there is nothing preventing mother from taking the children to yet another state or country the next time she meets someone and insists on movingagain. She just doesn’t seem to understand the fact that she cannot make unilateral decisions regarding the children, in terms of the current joint custody agreement. Granting him sole custody would help to eliminate the impact upon the children of the consequences of her erratic relationship patterns; wants to attend mediation; wants the children to continue to have a strong relationship with their mother; would enthusiastically enter into court-ordered mediation with an eye to working out a healthy visitation schedule for all involved.

Mother’s Reply filed 11/7

It is lengthy; have read it all but can only summarize; Maja is in regular gymnastics program, and Nouri in Rock Climbing program; father keeps threatening her with you’ll just see what happens at the SB court hearing; he hasn’t filed a response (sic); she doesn’t know where he is living; knows he is visiting Sedona till Sunday 11/10/2019; his financial condition is weak and he is most likely sleeping in a tent; he has not contributed a single dollar from October 16th-Nov 6th; she is making a change to her original request; is requesting a specific visitation schedule: Children with father every Tuesday after school- Wednesday Morning school start and every other Fri after school – Monday School starts, starting with the kids with him the coming weekend of Friday 11/16/2019; vacations 1st half with him and 2nd half with her; aside from this Christmas break where they already agreed for them to be with mother the whole break; should he decide to move to Sedona, there must be a schedule.

Mother testifies that should he decide to NOT move to Sedona, kids would be with mother 100% of the time during the school year and during vacations 1st half with him and 2nd half with her.

Mother testifies that father’s argument that she took the kids from Mexico without his consent is not true; he had initiated conversations about wanting to move back to the US in August 2019; there is also the letter he wrote and they signed stating that “one or both of us can leave Mexico starting in September;” she has email conversations between them as proof that he even agreed to move to Sedona ruling other places out and living away from the kids out; only disagreement was on timeline; she needed to move now; he wanted to stay in Mexico; that didn’t work for mother; when she proceeded with her move he then kept Maja’s passport from her, essentially holding her hostage in Mexico; he has been immediately locked out of his Mexico apartment and the security deposit of $400 is forfeited; he is homeless again; father and she have a permanent address on 2.56 acres in Rimrock, Arizona.