Tentative Ruling

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

FAMILY LAW
Nancy Paola Romero vs Christian Alejandro Olivares
Case No: 17FL02698
Hearing Date: Tue Oct 22, 2019 10:30

Nature of Proceedings: RFO

RFO

Attorneys

Petitioner Nancy Romero [“mother”] in pro per

Respondent Christian Olivares [“father”] represented by Marcus Morales

Ruling:

1. The parenting timeshare schedule for the school year, [effective October 25, 2019] father will have time share with Christopher, Jr. every other weekend from Friday at 4:30pm (father to pick him up from YMCA after school program or if he is not at the program from mother’s residence) till Sunday 6:00pm when mother shall pick him up from father’s residence.

2. Summer; it shall be divided 50-50 with mother having one week on and father having one week on.

3. The holiday schedule is set out below.

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 Christopher, Jr. 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 Christopher, Jr., 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 Christopher, Jr. 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 Christopher, Jr. regarding the disputed issue during the time that Christopher, Jr. is in his or her care. Both parents shall have access to all school and medical records. Either parent may submit Christopher, Jr. 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.

4. The parties shall share joint physical custody; mother shall have primary physical custody but father shall have realistic time share as set out herein. .

5. The parents shall each pay ½ of any uninsured medical or dental bills that are promptly presented to the other. When either parent accrues or pays costs pursuant to this order, that parent shall provide the other parent with an itemized statement of the costs within a reasonable time, but not more than 30 days after accruing the costs. The other parent shall make the reimbursement or pay the remaining costs within 30 days from notification of the amount due, or according to any payment schedule set by the health care provider for either parent unless the parties agree in writing to another payment schedule or the court finds good cause for setting another payment schedule. [See Family Code Section 4063.]

6. The holiday schedule shall be:

It will be available in the courtroom

Any Monday holiday [i.e. three-day weekend] will be added to father’s scheduled weekend.

7. The party picking Christopher, Jr. up shall provide the transportation; there need to be no meeting or discussion; the party relinquishing custody will simply have him ready for the exchange; timing on the exchanges will be prompt.

8. Christopher, Jr. will be driven only by a licensed and insured driver; the vehicle must have legal child restraint devices.

9. There will no travel, with Christopher, Jr., outside the State of California, without prior written permission of the other party or a Court Order; the Country of habitual residence is the United States.

10. Each parent must notify the other 60 days in advance prior to any planned change in residence of Christopher, Jr.; the notification must be sent by certified mail, return receipt requested; to be effective a return receipt received showing a signature of the addressee must be obtained.

11. Christopher, Jr. must not be left alone without age-appropriate supervision; the parents must let each other know the name, address, and phone number of the child’s regular child-care providers.

12. If father is unable to exercise visitation on a given occasion, he must notify mother at the earliest possible opportunity; mother must give father as much notice as possible if Christopher, Jr. is ill and unable to participate in scheduled parenting time with him.

13. Christopher, Jr. may have telephone and FaceTime access to his parents and the parents may have telephone and FaceTime access to him, at reasonable times, for reasonable durations.

14. Neither parent will make, or allow others to make, negative comments about the other parent or the other parent’s past or present relationships, family, or friends within hearing distance of Christopher, Jr.

15. The parents will communicate directly with each other and will not use Christopher, Jr. as a messenger.

16. Christopher, Jr. will not be exposed to cigarette smoke while in the home or car of either parent.

17. Neither parent will schedule activities for Christopher, Jr. during the other parent’s scheduled parenting time without the other parent’s prior agreement.

18. Each parent will maintain clothing for Christopher, Jr. so that he does not have to make the exchanges with additional clothing; he will be returned to the other parent with the clothing and other belongings he had when he arrived.

19. Neither parent will change Christopher, Jr.’s last name or have a different name used on her medical, school or other records without the written consent of the other parent.

20. Mother is NOT required to enroll Christopher, Jr. in Adams School; he shall continue going to school in Lompoc.

21. The terms and conditions of this order may be added to or changed as the needs of Christopher, Jr. and parents change. Such changes will be in writing, dated and signed by both parents; each parent will retain a copy. If the parents want a change to be a court order, it must be filed with the court in the form of a court document.

Analysis

This case was filed in 2017; Petition to Establish Parental Relationship.

Mediation reports on 8/18/19 there was no agreement

Father’s RFO

Filed 9/19/19; seeks child custody and parenting time; specifically requests:

1. Visitation to Mother every Monday and Tuesday;

2. Visitation to Father every Wednesday and Thursday;

3. Alternating weekends.

4. All communication between the parties to occur on Talking Parents.

5. The minor child be ordered to be re-enrolled in Adams School.

6. Mother to provide a breathalyzer and not consume alcohol or be under the influence of alcohol during any visitations with the children.

7. Order joint legal and physical custody of son Christian, Jr. DOB 2/2010 (age 9).

Father testifies he has been an active father and these orders are in the minor child’s best interests; he is an active father and until recently took the minor child to school and cared for him the majority of the time until mother started to block his parenting time; son misses him; son wants to spend more time with him; mother, moved to Lompoc and changed the minor child’s school to Lompoc without his permission or authorization.

Father testifies mother and he equally co-parented and shared Christian Jr. an equal amount of time; Christian Jr. always attended school in Santa Barbara; that father lives in the Santa Barbara area; mother works in Santa Barbara as well; mother has now unilaterally moved Christian Jr.’s school to Lompoc; she has tried to sever his relationship between Father and son; all for her personal gain.

Father testifies mother and he established an unofficial custody agreement whereby they agreed to 50-50 custody; alternated weeks and the exchange day took place on Tuesdays; this custody order (sic) eventually ended as soon as mother became aware of his new relationship; father was no longer allowed visitation with son; mother wanted 100% legal and physical custody only after she became jealous of his new girlfriend; allows him to see Christian Jr. when it is convenient for her; he is eager to have an official custody order established.

Father testifies that mother has a severe drinking problem; he reports CPS came out to do a wellness check and found mother passed out from overdrinking while Christian Jr. was in her care; when Christian Jr. was four years-old, he would leave the home when mother was drinking and walk over to father’s sister’s home; a child endangerment order was filed against mother in the past due to her negligence and drinking while Christian Jr. was in her care.

Father testifies that mother and he have had an informal custody agreement but her recent actions of enrolling Christian Jr. in a new school has caused more turmoil on his relationship with Christian Jr; he has always attended school in Santa Barbara; was enrolled at Adams Elementary in Santa Barbara before the start of this school year; without prior notification to father, mother enrolled son in school in Lompoc for this school year; he asked her to re-enroll son in Adams but she refused; father believe that mother did this to be vindictive and make it harder for father to see Christian Jr.; son has expressed to him that he is not happy at his new school and wants to return to Adams Elementary where all of his friends are; mother works in Santa Barbara; she would drop off Christian Jr. at Adams Elementary; the convenience of having Christian Jr. enrolled in a school in Lompoc is not an issue for her living situation and travel is not an issue as she works in Santa Barbara.

Father testifies that he requests any future communication be through Our Talking Parents; he is open to attending co-parenting classes and hopes mother will do the same.

Mother’s Response

Mother proposes:

1. Visitation for father should be every other weekend Friday 4:30pm (pick up from YMCA after school program) till Sunday 6:00pm

2. Summer; Every other weekend Friday camp pick up till Sunday 6:00pm and last two weeks of summer;

3. Holidays; to be determined;

4. Custody; joint legal custody and Physical custody/Mother

Mother testifies that father and she were together for 9 years; have one child together, who is 9 years old; during their relationship they both had a very active social life that included alcohol; she could not maintain the lifestyle father led; decided to put her focus on being a Mom and Nurse; parents no longer shared common interests resulting in the separation; relationship ended in June of 2016; after the separation, minor child was living with her for the majority of the time; she had a moment of poor judgment due to the stress of being left to fend for her son and home alone so suddenly; she sought treatment through CADA, Parenting classes at CALM, and counseling for son through Adams Elementary School; father continues to engage in the same social activities.

Mother testifies she has been a nurse for over 5 years; is currently living in a home where son has his own room, paying rent, utilities, clothing, after school care, health insurance, appointment copays, and all of the other basic needs of son. She reports they are currently living in the city of Lompoc; currently employed through VNA health, at Serenity House in Santa Barbara; currently working 2 days during the week, Thursday and Friday and every other Saturday with a potential transfer in the near future to an office in Solvang; son has adapted and is happy at his new school and was open to a fresh start; he has made new friends and has established a well-structured weekly routine closer to home; he is currently attending an after school Program on Thursdays and Fridays until 6:00pm through the YMCA, and continues to engage in after school sports; he has kept in contact with his best friend from Adams; he has currently started tutoring sessions at Miguelito Elementary School to receive the extra help that he requires, based on his last IEP meeting she had with his teachers at Adams and his academic standing; throughout all of son’s school years she has taken on the full academic and extracurricular activities responsibility, attending conferences, class volunteering, and field trip chaperoning.

Father’s Reply

The Court has read it.

The Court’s Conclusions

These parents are widely apart in their view of what is in the best interests of the minor child. The Court concludes that the son should live primarily with mother based upon her declaration and where she is now; requiring that he enroll in Adams is not a viable option and neither is 50/50 custody; these folks are not co-parenting and consistency in the child’s life right now is critical; he will not find that in two such wildly different perceptions of what is in his best interests.