Cassidy Whitehurst and Isaac Whitehurst
Case No: 1417488
Hearing Date: Tue Jun 04, 2019 10:30

Nature of Proceedings: Req. for Order: Modification Visit and Declare Minor Free from Father’s Parental Control

Req. for Order: Modification Visit and Declare Minor Free From Father’s Parental Control

Attorneys: Marcus Morales for Petitioner (“mother”); Respondent (“father”) in pro per; Claimant in pro per

Ruling: Mother’s request that the Court modify the current time share order is DENIED and mother’s request for the Court to interview the 12-year-old is also DENIED. On the other hand, mother’s request that father should undergo a current drug test, and pass it, before he exercises his time share is GRANTED. The identification of the specific drug test that mother selects and the specific location of where it will be taken shall be communicated to father by June 7, 2019 in writing; father shall bear the initial expense of any requested drug test; however, if father passes, mother shall reimburse father, forthwith, upon presentation of his paid invoice. In the meantime father may not exercise his time sharing. If he passes the test, the current order will be maintained and father may exercise the visitation at the times and manner previously ordered. Father shall provide mother with written confirmation of the “drug test” results and any particulars. Mother may request drug tests from time to time using the above protocol.

Analysis: This matter all started via an ex parte application filed and signed by the Court on 5/8/19; it sought a change in a Court Order of 4/2017 when this Court ordered sole legal and physical custody of the children to mother and supervised visits to Father every Sunday; mother testified that father has not seen the children or exercised his visitation in over two years due to drug and criminal issues; just recently father stated that he wanted to exercise his visitation; children do not want to see their father, especially Riley, who is almost 12 years old and wants to speak to the Court; mother testifies that it would not be in the best interests for the children to have visitation with their father. Mother’s present request seeks a change in parenting time for the two children involved (DOB 6/2007 and 4/2011); seeks no visitation to father until the 6/4/19 hearing; specifically requested:

1. Father’s supervised visitations from 1:00 pm. to 4:00 pm. be terminated and that father receive no visitation time with the children.

2. That the order be made temporary until June 4, 2019, at which time she asks the Court to make it a permanent order.

3. That the Court set a hearing on the issue of father’s visitations with the children on June 4, 2019, at 10:30 am in Department SB 3.

Mother testified via declaration that when father requested a visitation last week she told him she would like a drug test on Monday; he never did; when her attorney notified him of the ex parte hearing, he asked father to drug test; she still has not received a drug test from father; he is still unemployed and currently “crashing on a friend’s couch;” he is most likely still using drugs; he is not a safe person to visit with the children.

The Court DENIED the ex parte request and said this was not an appropriate subject for an ex parte hearing and suggested the issues be set via a RFO.

Mother’s RFO filed 5/8/19 and set for 6/4/19

Mother filed her RFO and said substantially the same things she previously said; also said Pursuant to Cal. Fam. Code § 7825 (a): on information and belief Father has been convicted of a felony of a nature so as to prove the unfitness of the parent to have future custody and control of the minor children.

She requests:

1. That father’s supervised visitations from 1:00 pm. to 4:00 pm. be terminated and that he receive no visitation time with the children.

2. That the Court declare both minor children free from Isaac’s parental custody and control pursuant to Cal. Fam. Code § 7 820, 7822, 7825, et seq.

She also advises that Riley (nearly 12 years old) has told her she wishes to address the Court directly and tell the Court her preference not to visit with father.

Father’s Response filed 5/28

He opposes the requested relief; he does not believe that the Court can terminate his parental rights because a stepparent adoption is not pending; mother is not married. Family Code section 7800 states that the intent of Part 4 of the Fam. Code entitled “Freedom from Parental Custody and Control” is to provide “the stability and security of an adoptive home when those conditions are otherwise missing from the child’s life;” that no adoption is pending.

The Court’s Conclusions

Father misses the point; the Court is not going to terminate his parental rights; the underlying issue is whether he should be permitted to exercise his time share which is extraordinarily severe as it is. But mother has repeatedly asked him to take a drug test and he has apparently refused, although he, unaccountably, does not address that issue. The Court will not modify the current time share order EXCEPT that mother’s request that father should undergo a drug test first, and pass it before he exercises time share, should be granted.