Tentative Ruling

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

FAMILY LAW
Dana Cook v. Maxx Hennard
Case No: 16FL00487
Hearing Date: Tue Nov 12, 2019 10:30

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

Req. for Order: Modification Child Custody/Visit

Attorneys:

Channe G. Coles for Petitioner [“mother”];

Jane L. Tanner for Respondent [“father”]

Ruling: Father’s request for an evidentiary hearing is granted; it will be scheduled as quickly as possible; the lawyers will need to confirm at the 11/12/19 hearing when they will be ready; and provide their time estimate; the Court will have time to do it when the lawyers and clients are ready; it will be combined with mother’s move away request which she shall file forthwith; the hearing will consolidate mother’s move-away RFO and her current RFO along with father’s affirmative relief. The Court fully intends to get the hearing done well before the Christmas holidays. The present orders will remain in force and effect until that time.

Analysis

This case was originally filed in 2/2016; mother sought a DVRO against father; also later filed a Petition to Establish Parental Relationship; there was a lot of litigation and many continuances; they had a daughter together [Beatriz born 1/2015]; those matter were not really concluded until 4/2017 when there was an evidentiary hearing that took several days; the Court made extensive rulings; among many other rulings the Court ordered joint legal custody with mother granted sole physical custody; father to have unsupervised time share every other weekend from 5 pm on Friday through 7 p.m. on Sunday and every Wednesday from 4 pm to 7 pm.

On 9/13/19 mother filed a RFO

It consists of 58 pages; have read it all but will summarize here; she seeks sole legal custody because father disappears for months at a time (most recently for 6 months) with almost no communication; she testifies that Beatriz is a young child who needs stability and consistency; mother has been the only parent to provide these things for Beatriz; father consistently cancels his visitation, asks to move his visitation, and leaves the state (if not the country) often not speaking with Beatriz for weeks and months at a time; this has been an ongoing problem since the Order was entered on 4/14/17; father has not followed the Orders regarding his visitation schedule, sometimes asking for changes or canceling last minute, creating even more chaos.

Specifically she ask for the following orders:

1. Phase One:

a. Father shall have visitation every other Saturday and Sunday from 8:00am to 5:00pm each day.

b. Every Wednesday from after school to 5:00pm.

c. FaceTime to occur 30 minutes before bedtime on Mondays and Thursdays.

2. Father shall find a stable home/apartment and shall provide mother a copy of the lease and shall provide the full names and contact information of all persons with whom he shares his residence.

a. Mother shall be given the opportunity to inspect Beatriz’ sleeping arrangements at father’s home at least once.

3. Phase Two: After father has lived in this home/apartment for three months and he has exercised each of his ordered visits as scheduled, his visitation shall increase to:

a. Every other Saturday at 8:00am to Sunday at 5:00pm.

b. Every Wednesday from after school to 5:00pm.

c. FaceTime to occur 30 minutes before bedtime on Mondays and Thursdays.

4. Phase Three: After three months of consistently operating on the Phase Two schedule without cancelled or modified visitation, father’s visitation shall increase to:

a. Every other Friday at 5:00pm to Sunday at 5:00pm.

b. Every Wednesday from after school to 5:00pm.

c. FaceTime to occur 30 minutes before bedtime on Mondays and Thursdays.

5. Father shall not travel out-of-state with Beatriz without mother’s written permission.

Mother testifies that she has kept a meticulous calendar that establishes father’s “nomadic” lifestyle; he’s gone back and forth between Santa Barbara, Los Angeles, Virginia, Texas, Norway, and likely many other places he hasn’t mentioned; he has bounced around between apartments, houses, and couch surfed; there is nothing stable or consistent about his lifestyle; that in March 2019, father left for Norway; in July 2019, he stopped communicating with mother for approximately one month; eventually told mother that he would be returning mid-September, but he had told other people that he was back in California in early September, and that he was in Long Beach with his new baby (his third child); despite being back in Southern California, father made no efforts to talk to or see Beatriz (just as he’s been refusing to pay for child support all while not exercising any visitation for multiple consecutive months).

Mother testifies it is important to mother for Beatriz to have a stable and consistent schedule; she has been wanting to file this motion seeking these necessary changes; had to gather the money for her attorney; did not know where father was, so she could not serve him; is not positive she knows where

he is staying; Beatriz has suffered from father’s inconsistent involvement in her life, and it’s been apparent in her behavior; her behaviors varied widely while father was here and had visitation, especially when his visitation wasn’t consistent with the ordered schedule; Beatriz’s mood changes were so concerning to mother that after father returned from Virginia in January 2018 she took her to a psychologist; father refused to attend these sessions despite Dr. Witt’s suggestions that he participate; father was so inconsistent with his visits that he asked mother to stop telling her when it was his day for visitation, which was difficult for helping her transition to her care and teaching her about time and schedules.

Mother’s Audio Recording Filed 9/13/19

Mother caused to be filed a audio recording made on 11/27/17 when Beatriz, was upset about father being gone; recording was sent to father shortly after it was made; the Court finds it compelling in support of mother’s cause.

The matter was continued

On 10/3 the lawyers filed a continuance changing the hearing date from 10/22/19 to 11/12/19

Father’s Response filed 11/1/19

It comprises 11 pages; have read it all but will summarize here; he testifies he is a permanent resident of the County of Santa Barbara, State of California, although he did spend eight months abroad for work in 2019; has obtained rental housing in Los Angeles County effective last week; not sure if he can afford to return to Santa Barbara to resume residency at his former home; will update the Court with his residency status upon its inquiry; the Court has previously heard extensive testimony in the 2017 evidentiary hearing and has spent a large amount of time on this file since 2016; mother continues to try to limit his time with Beatriz.

Father specifically requests that

1. Mother’s request be denied it its entirety; and mother shall complete the COPE parenting class;

2. Confirm the current joint legal custody order and modify the current sole physical custody order in mother’s favor, to joint physical custody;

3. Increase father’s visitation time with to 25% (currently it is about 18 or 20%, depending on holiday sharing); he would like the same alternate weekend and Wednesday dinner visit schedule, with an increase in holiday and vacation time for an additional four weeks over the year; proposes having one week at Christmas break, and three separate one-week periods over the summer vacation;

4. Both parents to communicate only through Talking Parents, so that a clear and independent record is kept of their communications;

5. Allow him to have Beatriz for a 7-day visit over the Christmas break in 2019, and to allow him to fly with Beatriz to Virginia to visit his mother;

6. Confirm its order that the driving for visitation will be equally shared; and

7. Set an evidentiary hearing on mother’s motion if the Court is inclined to grant her motion, so that he can present admissible evidence for the Court‘s review; he does not believe he can convey everything in writing on his Response; like the 2017 hearing, the Court will need to hear live testimony.

Among other things he reports about a “reconciliation” shortly after the 2017 hearing.

Mediation

Mediation was set and Family Court Services reported on 11/1/19 that the mediation did not occur because both Parties failed to appear to the scheduled mediation. The file reflects that another mediation was set for 11/18 but there is no report from mediation or from the lawyers that I can find as to what happened. I have concluded the mediation did not solve anything or the lawyers would have let me know [I have good lawyers on this case.]

Mother’s Reply filed 11/6

It comprises 35 pages; have read it all; will summarize; she has received a job offer from Coast Psychiatric Associates, which will provide her and Beatriz with health insurance and will provide additional financial benefits necessary for her care and upkeep; position is in Walnut Creek and is set to begin January 1, 2020; her official move away request will be filed in a separate

RFO, but mother is bringing it to the Court’s attention now including her detailed job search history; when she filed her RFO seeking a modification to the visitation schedule, she believed father was in Long Beach, CA; he informed DCSS that he would not be returning from Norway until late October, which was new information to her; would not have filed motion if she knew he was in Norway.

Mother testifies at length about the alleged reconciliation; when father left for Norway in March 2019, it was exceptionally clear that there was no relationship between them; he still made advances after he left and he would not stop, despite her requests; under no circumstances was he returning to Santa Barbara to live with her.

Mother testifies, given the news of her new employment, she will be immediately filing a new RFO containing her move-away request; pending that hearing and an order resulting from that hearing, she asks that the Court issue the following orders:

a. “Phase One” visitation as outlined in her initial RFO until the hearing on her move-away request, at which time the Court may make new orders. Phase One entailed:

i. Father shall have visitation every other Saturday and Sunday from 8:00am to 5:00pm each day.

ii. Every Wednesday from after school to 5:00pm.

iii. FaceTime to occur 30 minutes before bedtime on Mondays and Thursdays.

b. Grant mother’s request for sole legal custody of Beatriz so that mother may begin the process of schools and doctors in Walnut Creek.

c. Grant father’s affirmative request that they communicate through TalkingParents.com.

d. Deny father’s affirmative request that she enroll in COPE.

e. Deny father’s affirmative request for an evidentiary hearing because

(1) the request was not made correctly; it was “qualified”’ (only if the court denies his request) and hence insincere, and (2) an evidentiary hearing is not required for this RFO.

The Court’s Conclusions

An evidentiary hearing will be scheduled; the lawyers will need to confirm at this hearing when hey will be ready; their time estimate; the Court will have time to do it when the lawyers and clients are ready; it will be combined with mother’s move away request.