Tentative Ruling

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

FAMILY LAW
Megan J Havrda vs S Asher Sund
Case No: 16FL01834
Hearing Date: Tue Oct 22, 2019 10:30

Nature of Proceedings: DVRO

DVRO

Attorneys

Petitioner Megan J Havrda represented by Tim Rhodes

Respondent S Asher Sund represented by Eric Gans

Ruling: For the reasons set out below:

1. Father shall have sole temporary physical custody. Mother will have unsupervised time share with Teo every Wednesday from 4:30 pm to 7:30 pm and every other weekend from Friday at 4:30pm until Sunday at 6:00pm.

2. The parties shall have joint legal custody.

3. For the purpose of this order “joint legal custody” shall be defined as follows: The parent under whose care Teo is at any given time shall have the day-to-day decision-making rights and responsibilities during that period of time. The parents shall consult and cooperate with each other regarding all issues affecting the health, education, and welfare of Teo, including the following specific areas: School placement; Special educational services; Extra-curricular activities; Long-term or after-school childcare; Non-emergency medical services; Dental and orthodontic services; Psychological/psychiatric services; Practice of religion; Residence of Teo. If after adequate consultation the parents are unable to reach agreement on the above issues, the parents must submit the matter to this Court before he or she determines what is in the best interest of Teo regarding the disputed issue during the time that Teo is in his or her care. Both parents shall have access to all school and medical records. Either parent may submit Teo to emergency medical or dental treatment, routine check-ups or treatment for minor illness without prior consultation with the other parent, although the other parent shall be notified of such treatment.

5. Asher shall continue to have a stay-away no-contact personal conduct Restraining Order prohibiting Megan from contacting him or Teo except for peaceful contact to facilitate child parenting time with Megan.

6. Megan shall establish a 6 month period of sobriety and compliance with the below described drug and alcohol abuse treatment provisions.

7. Megan shall submit to random drug and alcohol testing upon written demand by email from Asher at reasonable times; Asher shall front all costs for such tests; if she tests dirty Megan shall pay the costs of such test; if she tests clean Asher will pay the costs of such tests.

8. Megan is prohibited from driving with Teo without the installation of an ignition interlock device in her car (at her expense).

9. Neither parent may travel outside Santa Barbara County without prior written approval of the Court.

10. Megan is not required to attend Alcoholics Anonymous meetings.

11. The matter is set back on my calendar for April 21, 2020, for a Status Report. Status Reports due one week in advance.

Background

This case was originally filed in 2016; the case was settled in 2017; subsequently in 5/2019 Family Court Services reported “temporary agreement has been reached between the parties, pending the final disposition of this matter by further agreement of the parties or by the Court; a written Stipulation and Order will be presented by the parties to the Court for approval.” Such a Stipulation was then signed and ordered on 5/13/19 which provided: “Schedule of Time-Sharing:

A. Father shall be responsible for the child from May 13th 2019 until July 3rd 2019, August 5th 2019 until August 18th 2019 and from September 10th 2019 until December 16th 2019.

B. Mother shall be responsible for the child from July 3rd 2019 until September 10th 2019 and December 16th until January 9th 2020.

C. The parties agreed to facilitate nightly face time with child.”

It provided that the parties will return to mediation in November of 2019.

Nevertheless they submitted another stipulation (and hence court order) on 7/18/19 that changed the 5/13/19 order by providing the temporary order of April 22, 2019 is vacated. The parties agree to follow the Stipulation for Judgment Re: Custody, Visitation and Child Support Order dated June 23, 2017. Place of Residence: Both parties agree that the United States of America is the habitual residence of the child and that the State of

California is the home state of the child within the meaning of California Family Code §3402(g).

Asher’s DV-100

On 9/25 Asher sought an DV-100 order for himself and the minor child Teo age 4;

included personal conduct order and stay-away orders; wanted the child custody order “changed;” the Court issued a TRO on 9/26 and set it to expire at the hearing set for 10/15; the Court did not change the custody and visitation order which according to Asher is “shared custody of Teo on an equal basis;” they each signed a Settlement Agreement attached to their judgment, filed June 23, 2017, in this case, that provided for a roughly equal 50/50 schedule that they since achieved, which schedule they have modified a couple times by Stipulation to allow Megan to pursue business opportunities in Washington state, but which has remained approximately equal.

Specifically he requested vastly different custody and visitation orders (that were not granted); specifically:

(a) A stay-away no-contact personal conduct Restraining Order prohibiting Megan from contacting him or Teo;

(b) A temporary child custody and visitation Order that modifies the existing custody order so as to protect Teo until Megan seeks appropriate treatment, including:

i. Awarding Asher temporary sole legal and physical custody of Teo,

ii. Prior to a hearing, limiting Megan’s contact with Teo to brief phone or Video calls (FaceTirne), monitored by a third party,

iii. After the hearing, limiting Megan’s contact with Teo to a supervised setting at her own cost until she can establish a significant period of sobriety and compliance with the below described drug and alcohol abuse treatment provisions,

iv. Requiring Megan to seek treatment and counseling for drug and alcohol abuse

through a court-approved medical provider,

v. Requiring Megan to submit to random drug and alcohol testing upon written demand by email from me or my counsel,

vi. Prohibiting Megan from driving with Teo until the conclusion of the drug and alcohol abuse treatment program and the installation of an ignition interlock device in her car (at her expense),

vii. Prohibiting Megan from traveling outside Santa Barbara County in the event the Court establishes a Visitation schedule after the hearing, and

viii. Requiring Megan to begin attending Alcoholics Anonymous meetings.

Megan sought an order for modification of the child custody and visitation

On 10/3 Megan sought an order for modification of the child custody and visitation

orders previously just denied to Asher and set an ex parte for 10/4; the Court denied the relief she requested and stated that the Court would wait until 10/15 to “clarify” and “decide” the issues that Megan raised in her Ex parte motion.

Megan’s “Declaration” was 26 pages and the Court summarizes here: She requested the following orders:

1. That the Court clarify the orders contained in the Temporary Restraining Order that the current custody orders remain in effect; that the Court order Asher to comply with those orders, or alternatively, make specific orders to provide

Megan’s parenting time with the Minor Child, pending the outcome of the hearing on Asher’s Request for Domestic Violence Restraining Order.

2. Requests the Court to deny Asher’s Request for Domestic Violence Restraining Order in its entirety, based on the information contained in her declaration and the evidence presented at the hearing.

She reports since September 23, 2019, Asher has unilaterally prohibited her from any physical contact with Teo. Asher’s only stated reason for prohibiting contact arises from a single unfortunate incident that took place while she was in Washington on September 13, 2019. According to the September 26, 2019 Temporary Restraining Order and Notice of Court Hearing, the Court partly granted and partly denied Asher’s requests. The Notice of Court Hearing indicates “The Court wants to hear from mother before making child custody and visitation decisions.” Further, the Court ordered an exception to the stay away order for court-ordered visitation of children.

Megan requested that the Court clarify the orders contained in the Temporary

Restraining Order that the current custody orders remain in effect; requested the Court to order that Asher comply with those orders, or alternatively, make specific orders to provide Megan parenting time with the Minor Child, pending the outcome of the hearing on Asher’s Request for Domestic Violence Restraining Order. She also requested the Court deny Asher’s Request for Domestic Violence

Restraining Order in its entirety, based on the information provided and the evidence presented at the hearing. Moving forward, she is supportive of a 2-2-3 custody schedule that provides Asher custody of Teo on Mondays, Tuesdays, and alternate weekends; she is willing to continue with A.A. classes, therapy, and standard drug and alcohol testing provisions requested by Asher, until they agree otherwise, or the Court is satisfied. She attached “letters” that the Court has not considered under this Court’s standard policy; to wit letters and/or declarations are not read until and unless the declarant is in the courtroom to be cross-examined.

On 10/8 Family Court Services reported no agreement was reached in mediation.

On 10/8 Eric Gans attorney for Asher filed a Status Report and reports on October 3, 2019, Petitioner, submitted her responsive papers to the DVRO Request as part of her Application to dismiss the DVRO Request, which Application this Court denied; in light of the representations made in her responsive papers regarding the allegedly “dismissed” status the CPS investigation in Washington State, he attempted to learn the present status or outcome of the CPS proceeding, and to present such relevant information to the Court for consideration in the form of a sworn statement; those efforts have been unsuccessful, and thus the best information the parties have regarding the CPS investigation remains the unsworn email correspondence attached as Exhibit “D” to Megan’s Application, which indicated that the investigation is completed, outcome unknown at this writing; in light of Megan’s submission of responsive papers on October 3, Asher requests that the Court treat his Opposition to her Application, also filed on October 3, as his Reply to her Response; while the outcome of the anticipated criminal

prosecution of Megan is not known, the current state of the pleadings reflects clearly that CPS in Washington State and this Court have intervened to protect this child, and that protection should remain in place at the very least until the conclusion of the criminal prosecution regarding the acts of Megan that allegedly put the child in danger in the first place.

On 10/10/19 Family Court Services (Mediation) 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.”

On 10/11/19, at the end of the day, Megan filed a Response to Asher’s DVRO request; she is now represented; she does not agree to the order requested; she requests the current custody orders set forth in the Judgment entered 6/23/17 remain in effect, or, alternatively, a similar 2-2-3 parenting schedule as requested in her attached Declaration; she does not agree to the orders requested to limit the child’s travel as listed in Asher’s form.

The matter was continued one week so Asher can file his response to the recently filed declaration but with that said it appears to the Court that he has done precisely what the Court denied him when the Court granted only a partial DVRO request and did not change custody or visitation orders; his actions on that front are disturbing to the Court.

The restraining order filed on 9/25/2019, against Megan was to remain in full force and effect until the end of the hearing set on 10/22/2019, or until further order of the court. Megan was present in court and informed of that order.

Father’s Reply

He testifies he brought this Request for a Restraining Order for the simple reason that Megan’s reckless actions while exercising custody of Teo—as documented by (a) the submitted declaration of the arresting officer; (b) her subsequent refusal to give the police his name and contact information; and (c) her refusal to give to the authorities the contact information for Teo’s numerous paternal relatives in Washington state, forcing Teo to spend 3 days with strangers in foster care—demonstrated to Asher that she is presently battling a crisis of alcohol abuse, rendering her unable to properly care for Teo without professional help.

He brought this action not because he harbors ill will towards her, nor because he is seeking to punish her for something; in his view they had significantly improved their co-parenting relationship in the past two years to the point where he trusted that she had Teo’s best interests in mind and that she would never put him in harm’s way; testifies he was obviously overly optimistic; their gradual increase to a 50/50 shared custody schedule, and his willingness to consider allowing her to exercise time in Washington state (per their May 2019 Stipulation, since modified), both demonstrate his good intentions and that, prior to her recent arrest, their co-parenting relationship was on a positive track. Megan admits as much in her Response. In short, this is not a custody battle between “squabbling parents.”

Asher testifies he was not aware of the extent to which Megan’s drinking had spiraled out of control, which her recent arrest, and pending prosecution, for DUI, Hit and Run, and Reckless Endangerment clearly evidence; when she does address the incident itself, she describes a series of events notably different from what the arresting officer swears to (e.g., she ignores entirely her statements to the officers in which denied drinking alcohol, and she likewise ignores her actions that led to Teo being held in CPS custody for 3 days). She also states that she “disagree[s] with many of the statements contained in the police report,” though she declines

to identify any single fact from the officer’s declaration that she “disagrees” with.

Instead, she attempts to downplay the seriousness of her actions, repeatedly stating that she has “no issues concerning alcohol,” and that the events leading to her arrest, which she declines to describe in any significant detail, were an “unfortunate situation” caused by her “feeling nauseous” and stressed. In other words, she would have the Court believe that her pending prosecution is for not feeling well, nothing more. On the one hand, she states that she has “no issues” with alcohol, and then she admits to regularly attending AA meetings since her arrest.

Analysis

The Court finds Asher’s Reply declaration when read in connection with his RFO very persuasive and the Court will give him many of the orders he requested, albeit not all of them.