Alexandra Burkhardt and David Burkhardt
Case No: 1265909
Hearing Date: Tue May 07, 2019 10:30

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

Petitioner Mother’s Req. for Order: Modification Child Custody/Visit

Attorneys: Mareike Schmidt for Petitioner (“mother”); Respondent (“father”) has not appeared.

Ruling: Mother shall have temporary sole physical custody and the parties shall have joint legal custody pending a hearing after mediation now set, sua sponte, on July 9, 2019, in this Department at 10:30 am. If no agreement is reached in mediation, father’s response shall be filed on June 24; mother’s reply to be filed on July 1. Pending further order of this Court father shall have parenting time every other weekend from Friday after school until Monday before school (or 8 am when no school) and one weekday visit beginning after school until 8 pm. Father must transport Max at beginning of the visitation and at the end of visitation.

Background: This case has seen a lot of courtroom time; it was originally filed in 1/2008.

Mother filed her RFO on 3/27/19; seeks a change in child custody and parenting time; minor child Maxwell (“Max”) was born 12/2005; mother seeks joint legal custody and sole physical custody; seeks an order that father have parenting time every other weekend from Friday after school until Monday before school (or 8 am when no school) and one weekday visit beginning after school until 8 pm. Requests that father must transport Max at beginning of the visitation and at the end of visitation.

This is a change in the current order of 2/2013 when the Court ordered sole legal and physical custody to father with mother having visitation on alternate weekends and each Wednesday after school until 7:30 pm.

Mother has attached an eight-page declaration in support of her request which the Court has read and will only briefly summarize here; she testifies that on November 8, 2018, Max came to live with her and she has been his primary caretaker since; that the Post-Judgment Stipulation filed on February 19, 2013, provides that: “Should Alex [“mother”] maintain her sobriety for a full year from November 2012 through November 2013, the parties agree that is a material change of circumstances.” Mother claims she has been sober consistently and continuously since December 16, 2011; testifies that father may not agree that this material change precipitates a change in custody; mother claims that it is in Max’s best interest that a change in custody and visitation should occur.

No opposition

The file reflects father was served on 4/14/19; there is no opposition filed.

Mediation

The file reflects that mother has secured a mediation date set for 6/17/19 at 1:30pm.

The Court’s Conclusions

Mother’s declaration is extremely persuasive and, without any opposition from father even though he has had almost three weeks to file one, the Court must change physical custody temporarily.