Jose Ramirez v. Cristina Beltran
Case No: 1439394
Hearing Date: Tue Dec 17, 2019 10:30

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

Req. for Order: Modification Child Custody/Child Support

Attorneys:

Petitioner (”father”) in pro per;

Geoff Conner Newlan for Respondent (“mother”)

Ruling: Based upon the ANALYSIS set out below, both mother’s and father’s request to modify the current schedule is DENIED.

ANALYSIS

Background: this case has seen a lot of courtroom time ever since it was filed in 2013.

Mother’s RFO

On 9/6/19 mother filed a RFO; set it for 10/22/19; she testifies that the current order is for mother to have sole legal and sole physical custody [current order filed 3/2016] and father has every third weekend with son; one month every summer and one-half of Winter Break and alternating Thanksgivings; mother’s RFO seeks serious consequential relief, including no contact between minor child and father pending agreement or further court order; and if no agreement or other order is in place by 3/1/2020, father shall have the right to professionally supervised visitation within three miles of mother’s home for three-hour periods on 10 days’ notice; such time sharing to be arranged for and paid by father.

The Orders requested are based upon her testimony via declaration that father and she have one child together: Jose M. Ramirez, Jr. DOB 10/21/2011 [sometimes “son”]; she testifies that her relationship with father ended violently and there was in place for years a restraining order against him; the 2015 custody order required supervision and three hours twice a month; slowly Judge Herman allowed more contact and less restrictive contact between father and son (2016 he saw son more, but still required supervision by family members); in October 2016 father was granted one overnight each month; when she moved to Arizona in October 2018 the Court granted extended periods of overnight visits unsupervised.

Mother testifies that since moving to Arizona her car was repossessed and she has not been able to find a job that permits her to drive back to California every third weekend: she lost several jobs because of the requirements in place; she does not have the money to drive so far, so often; father has been driving over to Arizona, where he has family, to see son; over the summer she was not able to speak with son, he was not allowed to call her, and when she did reach him father cut the call off after just a few minutes (like five).

Mother testifies that father “hit” the minor child; that when son was with father over the summer, toward the end of the extended visit, the child called mother late at night on father’s phone after father had fallen asleep; son was crying and was expressing how much he missed her and about the stay with his father; during the call she could tell father woke up, yelled at the son and then hung up the phone; she spoke again with the son that night when he called: son was crying inconsolably and told her that his father hit him after he had hung up the phone, because he had called her.

She testifies via declaration that son’s school started 8/6/2019 and father came to Arizona to visit him the next weekend; when she told the son on Wednesday that he would be seeing his father on Friday, son expressed extreme distress and stated his refusal to go.

Mother testifies that on the Friday when she was expecting father, son was crying and throwing up because he was afraid to go with his father; that weekend son was left with father’s sister and son did not see his father until the morning; on 8/26/2019 son’s teacher noted a big change in his behavior after the weekend with his father (8/9/19) and asked if anything happened; CPS contacted her because of reports son made to his school teachers that are consistent with what he told her: that is, his father hit him and he was afraid to go with him.

She requests that the Court conduct a short evidentiary hearing when she is back for the mediation and hearing date of this motion, so it can determine what contact with father, if any, is appropriate at this time; believes no contact until son can continue with therapy for some time and the therapist can recommend resuming contact; she does not have the resources necessary to hire experts, but thinks that father’s history of violence, and these new reports support the finding that unsupervised contact at this time is not in son’s best interest

On 10/22 the Court ordered father to file his Response by 11/20.

Mediation

It was on 11/15/19 and Family Court Services reported: “No agreement has been reached between the parties; this matter will need to be determined by a court hearing upon motion by either party.”

Father’s Response

Unaccountably, father filed his Response late; instead of filing it as ordered on 11/20 he filed it on 11/22; he testified via declaration that he does not consent to the order requested by mother and he refers the Court to the responsive declaration he filed on 11/22/19.

He attaches as an exhibit the Arizona child safety department letter to him, dated 11/4/19, stating that the claim against him was “unsubstantiated and the case is closed;” he would like the Court to look at the pattern of lies mother is always accusing him of right before any court case is heard that she files.

At father’s request the Court has reviewed father’s responsive declaration of 11/22/19 [notes it was due earlier]; he testifies that he wants the Court not to approve mother’s request that his visitations be supervised; he is asking the Court to keep the prior [same] visitation schedule; he is also asking the Court to have him provide all the transportation to and from Arizona since mother cannot do it due to not having steady employment; he provided the school schedule for the year and asks the Court for the days the minor child is not in school; attaches the school schedules.

Hearing on 12/3

The Court continued the matter to December 17 at 10:30am; ordered mother’s Reply to be filed by 12/10/19.

Mother’s Reply filed 12/9/19

Mother reminds the Court that on 9/6/19 she filed her request to modify the custody order to protect her son until therapy can address his feelings about contact with his that resulted from physical abuse since the last order. The parties’ eight year old child is suffering behavioral issues that are negatively impacting him and his ability to participate in school (where he has been moved to a separate program stemming from the abuse). On 10/22/19 this Court granted that request temporarily and set the matter for mediation on 11/15/19 and further hearing 12/3/19. That mother presented competent evidence that father hit their son in an effort to keep the child from speaking with his mother during a visit in Arizona; that father did not address this in his responsive declaration, so she must assume it is true; instead, father requests that the prior order remain in effect, and that it be modified so that he can drive to Arizona to exercise it; mother strongly believes that it is in the child’s best interest to be allowed to continue his weekly therapy without having to worry about contact with father for a reasonable period of time, which was causing him intense anxiety (fear); therapist will have the opportunity to contact father to include him in the therapy, as she deems appropriate; mother requests that the Court grant her request, to wit:

1. No contact between minor child and father pending agreement or further Court order;

2. If no agreement or other order is in place by 3/1/2020, father shall have the right to professionally supervised visitation within three (3) miles of mother’s home for three (3) hour periods on 10 days’ notice, to be arranged for and paid by father.

The Court’s Conclusions

The Court disagrees with mother’s assumption that father did not address her claim he had hit son; he attached the CPS investigative report that after an investigation found the claim was unsubstantiated. Mother has not commented on the CPS conclusion in any of her documents; that was not helpful to her cause. It is clear to the Court that father’s position is the event did not take place. At the same time the Court encourages mother to take the child to therapy because it appears that is appropriate. Father’s requests are denied. Mother’s requests are denied. The Court finds that mother’s claim that father hit son is “unsubstantiated.” Mother has not established either a change in circumstances or that the son’s best interest warrant a modification of the current orders. Based upon the prevailing law [set out below] there will be changes to the current orders.

The Prevailing Law

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.)

In this case the changed-circumstance rule and the best interests test produce the same result. When custody and time share has been adjudicated or agreed to between the parents, the child’s need for continuity and stability will mean that maintenance of the current arrangement will be in the best interest of that child.