Nathalie Contro Castro and Pedro Castro
Case No: 1267269
Hearing Date: Tue Apr 23, 2019 10:30

Nature of Proceedings: Req. for Order: Modification Child Custody/Visit/Remove Order Requiring Reporting of AA Reporting

Req. for Order: Modification Child Custody/Visit/Remove Order Requiring Reporting of AA Reporting

Both parties in pro per

Ruling:

1. Mother’s requests

A. As for modification of custody and visitation are DENIED for the reasons set out below under the heading The Court’s Conclusions.

B. As for her request that the Court remove the order requiring reporting of AA reporting; that request is GRANTED.

2. Father’s requests

A. That he continue to have sole physical custody is GRANTED.

B. That Carlota and Eva Gaia to have the right to refuse visitations with petitioner if they are feeling uncomfortable doing so is DENIED; the Court’s last order will remain in effect; the Court finds it is in their best interests.

C. That Carlota and Eva Gaia have court permission to spend their summer in Spain as they always do is GRANTED.

Background: The Court addressed this case very extensively just two years ago in April 2017 and wrote exhaustively about the case.

On 3/20/19 mother filed a RFO seeking a change in child custody, visitation, and to remove an order requiring reporting of AA attendance; set hearing for 4/23; there are two children, Carlota DOB 12/2002 and Eva DOB 2/2005; seeks a structured custodial plan be ordered whereby mother is given increasing time with the minor children; this is a change in a 4/2017 order that ordered father to have sole physical custody of the minor children with parenting time with mother of unsupervised time share every other weekend on Saturday from noon to 5pm and every Wednesday from 4pm to 6pm.

Mother filed a very thoughtful and extensive declaration which the Court has read.

Mother’s RFO Supported by Declarations

Sophia Navarro, one of Petitioner’s nieces.

Monique Navarro, a niece of the Petitioner

Mediation of 3/20/19

Reports no agreement has been reached between the parties; this matter will need to be determined by a court hearing upon motion by either party. NOTE: The Court may want to consider obtaining more information regarding the child pursuant to Family Code 3042(a)(b)(c).

Response from father

Filed 4/10/19; it is very thorough and comprehensive; supported by the lengthy letters from the two children.

Father requests

1. Sole Physical Custody to remain with respondent.

2. Carlota and Eva Gaia to have the right to refuse visitations with petitioner if they are feeling uncomfortable doing so.

3. Carlota and Eva Gaia would like to ask the Court permission to spend their summer in Spain as they always do.

The Court’s Conclusions

I find father’s response persuasive; particularly since it is supported by the letters of the two children that are dated 4/6/19. In sum father and the two children do not want any change.

In particular mother has not established any change of circumstances or that the best interests of the children would be served. The law on that subject is clear and is shared here for the benefit of mother, father and the girls.

Change of Circumstances/Best Interest of the Child

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.