Marcus Natale v. Rachel Jackson
Case No: 15FL01483
Hearing Date: Tue Oct 01, 2019 10:30

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

Petitioner’s [“father”] RFO: Modification of Child Support/Spousal Support

Attorneys: Petitioner [“father”] in pro per; Respondent [“mother”] in pro per

Ruling: There is no showing of a change of circumstances or that the best interest of Zander would benefit from. All requests are DENIED.

Analysis: This case was last on calendar very recently on 07/16/2019 when 15-minute Skype Dates with mother, when Zander is in father’s care, every Tuesday, 30 minutes before bed, and every Saturday at noon; father shall have the same schedule whenever mother has Zander on a Tuesday or Saturday; the Court will not make the order mother requests that neither parent may use the reasoning that the child does not want to talk to them as dismissal for the call. If for any reason father or mother is not with Zander at the proposed times, he or she is absolutely charged with and responsible for seeing to it the call is timely made and completed; neither parent nor any other third party may listen to, monitor, or interfere with the calls.

3. Summer time share. For 2019 mother shall have one week at the end of each summer month. For 2020 mother shall have the first week after school lets out, followed by one week with father, and then rotating; that is a 50-50 time share; exchange times to be at noon at both pick up and drop off. No further modification as suggested by mother is appropriate now.

4. Legal custody. Father shall have sole legal custody.

Father’s RFO filed 8/27

The ink on the last order was not even dry when father filed his RFO and seeks the following Court Orders:

A. VISITATIONS – NONE OR SUPERVISED

B. HOLIDAYS / SUMMERS – NONE OR SUPERVISED

C. CHILD SUPPORT – BASED ON GUIDELINE

Claims the original declaration was filed by the father on 9/1/2015 when mother moved to San Diego. Multiple mediation agreements were made following this declaration. Mother submitted an Ex Parte Emergency Request for Order on 11/23/2016. Rulings for Physical Custody, Legal Custody, Lawyer Fees, Child Support, Our Family Wizard and a Visitation Schedule; including transportation details, were made on 1/10/2017. An Evidentiary Hearing was held and orders were made on 10/17/2018 for Visitation, Exchange Location, Holiday Schedule, and Summer Vacation schedule. On 07/16/2019 Father was given Sole Legal custody and orders were made for Visitation, Exchange Location, Holiday Schedule, and Summer Vacation schedule.

Claims the following change in circumstances – Mother is provoking conflict. Mother is threatening to keep the child out of school. Mother is leaving child alone in motor vehicle. Child is being exposed to tobacco and/or marijuana during Mother’s visitations. Currently there are signs that a good parent can recognize when something is awry. When comments developed into consistent stories of Zander’s unhealthy exposures and endangerment, he became very concerned. Zander regularly talks about someone “smoking” when he gets back from Mother’s. After the fourth time he shared the same story in detail, he became increasingly worried for him. He has explained this in vivid detail many times now: “Breath it in and hold it in. Then the smoke like from a fire comes out and you can do cool things with the smoke”. He shared with father that someone lets him “push the button” on the vape and told him that “he can do it when he gets older”. When Zander told father about being left in the car while Mother goes into the store, he was concerned right away. He explained to mother and if you press the “red button” on the car keys you will be safe. He specifically said he was instructed by Mother to press it if anyone was going to steal her stuff and to not get out of the car until she came back from getting milk and snacks. If these were inconsistent father would not be remotely concerned, but Zander explains these things in clear detail exactly the same from one visitation to the next, even months apart. Father has reported all of these issues to CPS. He was informed that Mother would be told not to do these things anymore, but until something very serious happens they are unable to do anything. After Mother got the phone call from CPS she went out of her way to send father message, seemingly gloating that CPS would not be able to do anything. These ongoing reports from Zander pay tribute to Mother’s past behavior and father can’t stand the thought of not doing everything he can to protect son now. Especially after he failed to protect him as an unborn child and infant. Father understands that Mother must be very upset and unhappy, but Zander needs to come before them. Mother chose herself and her current behavior shows that has not changed. As Zander grows older and more capable to speak for himself and protect himself, he will not fight that natural process if or when he wishes to spend more time with Mother. However, these are still Zander’s formative years. His own mother is leaving him in the car alone, teaching him witchcraft and how to inhale. Additional video calls are the only alternative father can think of in turn for parenting time, if that’s what the courts decide. He can’t imagine the distaste that one must have making the decision to remove a parent out of the child’s life for a time, but please consider the risk to reward factors; thanks the courts for everything they’ve done so far and for recognizing his dedication as a father.

Mother’s opposition

Filed a 39 page response after an extensive continuance

Mother claims to seek affirmative orders and provides a response to father’s RFO; she seeks to

1. Make up parenting time (continued from ex parte as requested on FL-305)

2. Additional parenting time

3. Child Support

Claims that father has filed multiple complaints to CPS against her but none of them have been for the use of marijuana; asks the father to prove that claim. Every single call from CPS she has received has ended with the report being found inconclusive and case closed; she is requesting that lost time be made up during a couple weekends in October and the father’s week of Christmas Vacation. Since he broke Court order and denied two vacation weeks, which she had multiple plans for, she thinks it is only fair that some of the vacation time be replaced with other vacation time; is requesting the following dates :

-Two weekends in October 10/11/19- 10/13/19 and 10/25/19- 10/27/19

-All of Christmas Break starting when the child gets out of school to the 5th of January. Mother already has from the 28th to the 5th.

Additional parenting time. Furthermore she would like to request that those two weekends or ones similar (2nd and last weekend) in October remain permanent in their court order; additionally, she would like to ask the Courts to allow Zander to be a part of his siblings’ birthdays yearly. Her other children’s birthdays are September 18th and December 4th. To make things simple she is asking for specific weekends that will most likely fall the closest to their birthdays and she can plan their parties around them; asks the Court to grant her:

– The 3rd weekend in September from when the child gets out of school until 4pm Sunday.

– The lst weekend in December: from when the child gets out of school until 4pm Sunday.

She also seeks a change in the child support; she reports seeing as the timeshare has changed and they both have had more children, she can agree that a modification might be in order, but she asks the courts to take into account that she is not working because she is in school full time trying to better herself for her family and financially, it does not make sense for her family to pay more in child care costs than she would make working a minimum wage job.

Father filed a 26 page Reply [have read it all but will summarize here]

Acknowledges he may not have “proof” of mother’s and Michael’s offenses, but Zander’s words still deserve to be heard. Zander’s courage to speak up, despite his fear of punishmen, is admirable. The least father can do is recognize what Zander shares with father, and do his best to advocate for him. Attaches five exhibits.

The Court’s Conclusions

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 most cases the changed-circumstance rule and the best interests test produce the same result. When custody and time share has been recently 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.

There is no change in circumstances shown that support a modification of the rulings just made a month ago.