Tentative Ruling

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

FAMILY LAW
County of Santa Barbara v. Saul Linares (Pauline Tuazon Other Parent)
Case No: 1381190
Hearing Date: Tue Mar 03, 2020 10:30

Nature of Proceedings: Req. for Order: Modification Visit

Req. for Order: Modification Visit

Attorneys:

Lynn E. Goebel for Respondent [“father”];

Other Parent [“mother”] is self-represented

Rulings:

1. This is the Court’s Statement of Decision

2. The Court’s Rulings of March 3, 2020

Daughter’s physician

A. Mother’s requests related to the selection of Daughter’s physician(s) are DENIED; father will continue to solely select Daughter’s physician(s).

B. Mother’s request that she can request “to view” Daughter’s medical records is DENIED; but mother may make a request to have “a copy of Daughter’s medical records” provided that mother may not make such a request more than twice a calendar year.

C. Mother’s request that Daughter have a Female Physician rather than a Male Physician is DENIED unless father selects such a physician.

D. Mother’s request that if father prefers that Dr. Brewer be Daughter’s primary physician, she would like to request an open discussion in which they can decide on a physician they both approve is DENIED; it appears to the Court that ordering “an open discussion” in this case is clearly counterproductive.

Daughter’s Medical and Dental Insurance

E. Father’s contention that the issue is better brought before Commissioner Foley with the Department of Child Support Services present to address any modifications to the Order(s) made in that Court must be accepted on this record. The fact is that the decision of who should pay for health and dental insurance is typically made at the time child and spousal support is determined; it is based upon an analysis of the parent’s respective assets, income and what their access to medical and dental insurance is at the time of the order. This Court has virtually no current information on that subject.

F. For the reasons stated above, mother’s request that father provide full Medical/Dental Insurance for Daughter, as well as share [i.e. 50/50] in the responsibility of paying all of her co-pays for her Medical or Dental appointments must be DENIED without prejudice; she may seek such an order before the Commissioner.

Daughter’s Special Functions

G. Mother’s request that Daughter be able to attend all of her special functions, regardless of which parent she is with [i.e., the parent who has custody at the time] during the function or event irrespective of who has time share or custody is DENIED. [Special functions would include dance recitals and competitions, sports award ceremonies, school field trips, etc.]. To do as mother has requested would clearly lend itself to one parent scheduling such extracurricular events and classes to take place during the other parent’s time share. This potential overlapping is not permitted unless the other parent agrees, in writing, prior to the overlapping event taking place.

Request to Re-examine Previous Rulings

H. The Court has re-examined the previous rulings as requested. The fact is that mother has not been a credible co-parent. Father has done his level best to co-parent but mother’s attitude has made his efforts fruitless. She has been litigious and confrontational. The Court finds that it is in the best interests of the minor child to stand behind the decisions stated above.

Background

On 12/31/19 the Court addressed this case. Father was present with his attorney, Lynn Goebel. Mother was also present. The Court made the following ruling on the RFO for modification filed by mother.

“Mother’s request for a continuance was granted to March 3, 2020, at 10:30 am provided that the orders made herein are in full force and effect subject to modification if the Court believes that becomes necessary. Any documentation mother wants to submit on this matter is due on February 25, 2020; such documents to be served on father’s counsel as well as being filed. Father’s counsel is not available during the balance of that week, i.e. March 4-7, 2020.”

Analysis

This case has seen a vast amount of courtroom time ever since it was filed in 6/2011; indeed the case has seen litigation time in virtually every year since it was filed; this is not a typical case.

The case was on calendar 11/19/19 when mother, and father, and Lynn E Goebel, Attorney for father, all appeared; the Court dismissed mother’s OSC re Contempt and told her if she wants to modify any previous orders, a Request for Order [“RFO”] should be filed.

On 11/26 mother filed a RFO

She seeks modification of previous visitation and time share orders; set the matter for 12/17; the matter is related to the minor child Yzabelle (sometimes “Daughter” or “Belle”) DOB 2/1/11; the present order was filed in 1/2019; mother sets out a lengthy declaration; have read it all but will summarize here; current court order is via stipulation; it specifies that father and mother share legal and physical custody of Belle; in exercising joint legal custody, they share in the responsibility; must consult in good faith on matters concerning the health education and well-being of the child. In the stipulation, it states that when selecting a doctor, dentist, optometrist, or other healthcare professionals, and when deciding on medication(s) or course of treatment for the child (except in emergencies), they shall exercise joint legal custody.

On October 25, 2019, she filed an Order to Show Cause for Contempt and the hearing was set for November 19, 2019; during the hearing, she was provided with the option to either move forward and clearly identify the precise counts of contempt she had described concerning father, or dismiss the case and file a Request for Order [RFO] regarding the two main issues she has presented.

She elected to file a RFO.

The first issue is in regards to the primary physician for Daughter; she is requesting that Daughter have only one physician, and one in which they as legal parents can equally access and request to view her medical records; she would also like to request that Daughter have a Female Physician rather than a Male Physician as Daughter will begin experiencing changes in her body and mother thinks she will feel more comfortable around a female doctor; Belle has been seeing Dr. Margot Roseman since she was born; if father prefers that Dr. Brewer be Daughter’s primary physician, then she would like to request an open discussion in which they can decide on a physician they both approve.

Mother would also like to discuss Daughter’s Medical and Dental Insurance; she would like father to provide full Medical/Dental Insurance for Daughter, as well as share in the responsibility of paying all of her co-pays for her Medical or Dental appointments.

Another request she makes is for Daughter to be able to attend all of her special functions, regardless of which parent she is with during the function; special functions would include dance recitals and competitions, sports award ceremonies, school field trips, etc.; events are for her and she should automatically be able to attend them whether she is with mother or with father; mother understands that prior plans may have been made by the custodial party, therefore, she believes it should be stipulated that if the custodial parent is not available to take her to the function, then the other parent can take her to the event.

Mother points out that in the stipulation, it is the responsibility of each parent to notify the other within twenty four hours of receiving any invitation, schedule, or information of a special function for the child, especially those that occur during the other parent’s time. This allows the custodial parent the opportunity to make proper arrangements for the child’s special function (i.e., award ceremony, parent/teacher conference, performance, sports competition, etc.); in order to eliminate any ambiguity regarding decisions related to Daughter’s special functions, she is requesting that the Court consider her addition to the stipulation for the sake of Daughter and all of the hard work and dedication she puts into her various involvements and activities. She is an incredible young lady who has managed to maintain her grades while balancing her extracurricular activities and mother wants her to know that she will always have their support, especially for the things she loves to do.

Father’s Responsive Declaration was filed on 12/13

He testifies via declaration: As for the choice of medical provider, there was a period of time during this case when mother and he shared joint legal custody of Belle; but he was given the right to make the medical decisions regarding her; it clearly sets forth in the Order filed November 17, 2015, “… however the father shall be primarily in charge of making health care decisions as to providers” (Order, page 2, line 11, no. 4); mother knew this, she was present when the order was made, and she even knew Dr. Brewer was Belle’s primary medical provider when she signed Dr. Brewer’s office authorization to speak with Dr. Roseman’s office; he, too, would like an open discussion about Belle’s health care provider(s) rather than mother continuing to file frivolous requests in this case; whether mother felt nervous and comfortable when she was Belle’s age is not the point: the best interests of Daughter, her health, safety and well-being are paramount; at no time has Belle expressed to father any discomfort with Dr. Brewer; father wishes that mother would make a more concerted effort to co-parent with him; this Court is the wrong Court for mother to address medical and dental insurance costs; issue is better brought before Commissioner Foley with the Department of Child Support Services present to address any modifications to the Order(s) made in that Court.

As for special functions (i.e., Belle’s dance class), he has made it abundantly clear with mother that he does not agree with mother scheduling dance events and/or classes for Belle during his custodial times; specifically, these dance classes were classes to which he expressly did not agree to enroll Belle in; although he did previously agree that Belle would finish out her previous dance class(es), which directly interfered with his custodial time, he told mother going forward that she was not to do so; yet she still did.

On 12/17 the Court ruled that: The matter must be continued to allow mother a chance to file her Reply; it is due 12/23; the hearing was continued to 12/29/2019 at 10:30am.

On 12/20 mother filed a Reply

The Court read it all but will summarize; this is important litigation and the Court has put significant time into the case; she testifies that she has always strived to Co-parent, not only with father but for his wife Crystal as well; knows that a lot of people will agree with her; loves Daughter so much; is the reason why she ignores the emotional and mental stress that has been inflicted on her; made the decision of not pursuing the contempt of court she filed against father because her intention is to clearly state the consequences of his actions without punishing him.

Selection of Belle’s physician: She agrees father was made the decision-maker on November 16, 2015, with Commissioner Denise Motter but on April of 2017, it was ordered by Judge James Herman during the Evidentiary Hearing that the Parents will share legal custody of Daughter and it specifically added that when Daughter is in Santa Barbara, she shall see the Primary Care Physician that mother has chosen for the child in Santa Barbara; when in Lompoc, she will be seen by the physician chosen by father; when father moved back to Santa Barbara, he didn’t follow the stipulation and continued taking Daughter to a doctor of his choice.

Another order was made on January 16, 2019, that when selecting a doctor, dentist, optometrist, or other healthcare professionals, medication(s) or course of treatment for the child (except for emergencies), they shall exercise joint legal custody; father has violated the court order since the order was made in April of 2017 until the present; she does not want jail time for father; if the Court feels that he did violate the court order, she’d like the Court to emphasize the consequences and apply what is necessary.

Mother believes that Belle should see a female doctor, not only to feel comfortable, but also to have an opinion from a professional who has experienced what Daughter’s about to experience as a teenager and as a woman.

Medical and dental insurance: As for medical and dental insurance, she wanted to discuss Belle’s insurance because mother has been providing full medical and dental for her and has been paying the co-pay charges as well; during her dental appointments, she has paid multiple times; father provided insurance in January 2018 in which the dental office hasn’t been able to charge until June of 2019; not entirely sure if he was able to settle it; she has attached Belle’s statement history that shows mother’s Cigna Insurance and Sun Life Financial Insurance was being charged and it also shows the payment made by them; that father inquired about the Co-pay fees one time and she provided him the amount of fees but he never paid his share just like what he proposed on his e-mail on Family Wizard [she attaches the statement history and his e-mail].

Special Functions: She has made a lot of effort to reach out to father and his lawyer regarding Belle’s dancing; Belle had to switch dance studios to fulfill father’s wishes of not interrupting his custodial time with her; mother did her homework; she moved her to another studio and made sure that she had considered everything father wanted. Belle started dancing at Momentum Dance Company in August of this year. All of her rehearsals and studio activities were scheduled during mother’s custodial time; mother is the one who is responsible for her tuition and costume fees; only thing that mother can’t foresee is the competition dates; there are only two competitions that are during father’s custodial time; this is not the first time that Belle joined in a competitive event; father asked mother to have Belle for a weekend for her to attend her gymnastic event in Lompoc; mother agreed for him to take Belle; signed the stipulation on January 10th that states on page 6, number 11 that each parent shall be responsible to notify the other within 24 hours of receiving any invitation, schedule or information about a special function for the child, especially those that occur during the other parent’s time, to allow the other parent who has the child the opportunity to make arrangements to take the child to special functions and events. Both parents shall attend the child’s special functions. (i.e. award ceremony, sports competition, parent-teacher conference, performance, etc.) whenever possible.

Mother testifies that she is not sure if father has anything against Belle’s dancing but whenever he has extracurricular activity for Belle, mother normally supports Daughter; she may not go to her games or activities but she knows that mother gives her 100% support when it comes to the things she loves to do — not only for the things mother wants her to do; has told father about the performances and she has presented the date of events for Belle’s new studio during their mediation.

Mother testifies that this isn’t about mother; she believes that it is her right and responsibility to involve herself in the things that Belle loves; she has bloomed and being with the right group and studio has given her confidence and stamina, and it promotes a very healthy mind and body for her. Belle was heartbroken when she found out that she wouldn’t be performing on Wednesday, December 18, 2019. She danced very beautifully and gracefully on Tuesday, December 17, 2019; father didn’t even make the effort to watch her dance; everyone was so impressed; mother’s parents and her tutor were there to support her first show with Momentum Dance Company.

On 2/26/20 Mother filed a Supplemental Briefing re Continued Hearing On her RFO; she asks for a Statement of Decision.

The Court has read it all but will summarize here. Specifically she asks for for a statement of decision pursuant to Family Code section 3022.3 and Code of Civil Procedure section 6325 regarding any decision concerning (1) Ruling relative to the choice of medical provider/primary physician for Yzabelle; (2) Ruling regarding mother’s right to view Yzabelle’s medical records.

Mother argues that in this case, mother is for all purposes a custodial parent since she has joint legal custody of Yzabelle with the father; that she has the equal right to access medical records and information of Yzabelle the same way as the father; joint or equal right entails proportionality; short of proportionality in treatment, father is effectively given preference over mother despite the existing joint legal custody orders; if Respondent is given the right to “View” Yzabelle’s medical records, mother’s right to do the same cannot be limited to some other arrangements different from what father is allowed to do. The Court is requested to re-examine its orders denying mother her right to view Yzabelle’s medical records if father is allowed to do the same; otherwise, the Court would have inadvertently modified the existing court orders without any of the parties requesting said modification.

Mother argues that in this case, mother’s Request for Order is exactly enforcing the 2017 and 2019 Custody Orders. Based on the most recent custody orders (2017 and 2019 custody orders), father does not have the primary right to choose Yzabelle’s medical provider; to the contrary, said right was given to both mother and father jointly and specifically. The 2017 Custody Orders even allows mother to take Yzabelle to the primary physician of her own choosing. When the Court stated in its temporary orders of December 31, 2019, that father will “continue” to “solely select Daughter’s physician” runs counter to existing court orders of 2017 and 2019. In effect, the December 31, 2019, Order may have inadvertently modified the 2017 and 2019 Custody Orders even without any party requesting said modification. The Court is requested to re-examine this temporary order that Respondent will continue to solely select Yzabelle’s physician.

The Court’s Conclusions

The Court has re-examined the previous rulings as requested. The fact is that mother has not been a credible co-parent. Father has done his level best to co-parent but mother’s attitude has made his efforts fruitless. She has been litigious and confrontational. The Court finds that it is in the best interests of the minor child to stand behind the decisions stated above.