Olivia Alvarado v. Jesus Emanuel Garcia
Case No: 1440484
Hearing Date: Tue Jun 04, 2019 10:30

Nature of Proceedings: OSC Contempt; Req. for Order: Modification Child Custody/Modification Child Custody/Visit

Respondent’s OSC re Contempt; Req. for Order: Modification Child Custody; Amended Req. for Order: Modification Child Custody/Visit

Attorneys: Both parties in pro per

Rulings:

1. Mother shall continue to have sole physical and legal custody of Sarah Garcia (DOB: 09/18/2012, age 6).

2. Father’s timeshare with Sarah shall be unsupervised, and shall occur every Monday and Wednesday from 3 pm to 7:00 pm and the second Saturday of each month from 12 noon to 7:00 pm.

3. The parents are to continue to use Talkingparents.com for all communication between mother and father.

4. Father’s request for joint legal and physical custody (i.e. 50/50 custody and time share) is denied.

5. The Court denies father’s request for a holiday schedule without prejudice; may be raised again when Sarah is older.

6. All of the other stipulations and agreements set out in the Stipulation after Mediation signed by the parents and the Court and filed 1/9/18 remain in full force and effect except as modified herein.

7. For the reasons set out below the Court denies father’s request to order up the confidential juvenile Court records or the CPS reports and will not grant father the right of first refusal for times mother travels or is out of town.

8. The Court intends to conduct the contempt hearing at 10:30 am on June 4 as soon thereafter as I can get to it; be prepared.

Background:

The Petition to establish Parental Relationship was filed in 3/2014; a parenting plan was stipulated to in 2014; there has been a lot of court litigation and a lot of mediations over the years since then.

The last order was entered in 2/2018

1. Mother was given sole physical and legal custody of Sarah Garcia (DOB: 09/18/2012, age 5).

2. Father’s timeshare with Sarah shall be unsupervised, and shall occur every Monday and Wednesday from 4 to 7:00 pm and the second Saturday of each month from 12 noon to 7:00 pm.

3. Father shall not drink at all for 12 hours before and also during the time he has the minor child in his care.

4. Father, mother and minor child to attend counseling through CALM with the CALM counselor to determine the duration and scope of the sessions and which party(ies) are to attend which sessions.

5. The parents are to use Talkingparents.com for all communication between mother and father.

6. All of the other stipulations and agreements set out in the Stipulation after Mediation signed by the parents and the Court and filed 1/9/18 she remain if full force and effect except as modified herein, to wit: the Court has now ruled upon Physical Custody, Legal Custody, father‘s time share, and supervised visitation between Father and child.

Father filed this RFO on 3/13/19; set the hearing for 4/16; his document was 14 pages long; the Court has read it all; summarize here; one child Sarah DOB 9/2012; father seeks joint legal custody; visitation Monday and Wednesday 3-7 pm (“already agreed upon”); also requesting 50/50 legal custody; seeks a holiday schedule; seeks specific orders related to:

A. Add an extra hour to visitation (3-7pm)

B. Joint legal custody

C. Enforce a holiday schedule (form FL 341)

D. Continue communication through Talkingparents.com

Father filed his “amended” RFO on 4/19; set hearing for 6/4; seeks 50-50 legal and physical custody of Sarah (DOB 9/2012); amends earlier request; reports that when he filed initial paperwork on 3/13/19, it was before he got the child welfare services report; after reading the “alarming report” it was clear that his help was needed. He reports that his original RFO to regain custody came after an altercation with mother on 3/9/19 when she threatened him by saying “Forget about picking up Sarah for the rest of your fucking life, take me to court Bitch, Good luck.” At that time he filed for joint legal custody, holiday visitation and an extra hour of visitation. This was before he got to read the actual report of Child Welfare Services from 1/17/19.

Father filed his OSC re Contempt on 3/14/19; set it for hearing on 6/4/19; father testified that mother violated the existing order issued in 2018 relating to his visitation; he testifies that “the court should hold mother in contempt of court for visitation schedule.” He complains that the main reason why he is filing this contempt motion is because there have been more than enough times where his visitation rights have been violated; gotten to the point where he has to say enough is enough; really needs the court to help him enforce the agreement because it is clearly out of his control; he feels helpless. Shortly thereafter father requested that the contempt hearing be rescheduled; the request was denied on 3/26.

Father filed another OSC re Contempt on 4/23; set it for hearing on 6/4/19; testifies that mother has violated the 2/13/18 order when:

On 7/12/18: mother set up a playdate on his designated time of the day

On 8/22/18: mother denied visitation because he honked outside of their home when he arrived, had newborn infant in the car with him and didn’t want to leave him unattended so didn’t realize it was a big deal. Mother got upset and told him off in front of daughter.

On 10/31/18: at previous pick up before this date she told him she already made plans with daughter for Halloween which was supposed to be his day. On afternoon of 10/31 at 3:02 pm (an hour before scheduled pick up) she messaged on TalkingParents that she changed her mind and for him to pick daughter up and drop her off at 7pm. Because she had already told him in person he wouldn’t get to see her and he was at work all day, he wasn’t able to see the message until 5:37 pm.

On 11/5/18: mother denied visitation because she claims daughter told her she needed space from him; he was told he couldn’t pick her up 11/7/18 either but then again on the day of she called and told him to pick her up and daughter needed to get over allegedly being upset with him.

On 11/12/18 he was supposed to pick her up at a friend of family’s house and was called later by them around 2:30pm that daughter was sick.

On 11/21/18 mother left out of town with daughter.

On 12/31/18 mother made plans with her already.

On 3/13/19 mother messaged him if he could pick up at 3pm; he let her know he was unable to due to work but he could pick up at his designated time at 4pm. She let him know that visitation was cancelled instead. Then he told her he wasn’t ok with that and he would contact LE. She told him that he could instead pick her up all the way in Oxnard now. Oxnard at the time of pick up is almost an hour away, meaning he would have little to no time with daughter; already has to drive 20-30 minutes to her school in Carpinteria; it is not fair and the places are out of SB jurisdiction.

Father testifies that daughter also claims that mother interrogates her about the visits and has scripted her on what she can and cannot say to him; he would like for her to stop interrogating daughter about their visitation that day because it is part of the court agreement from mediation as well and it is unfair that daughter feels restrictions while speaking with him.

Mediation was conducted on 5/21; No agreement has been reached between the parties; this matter will need to be determined by a court hearing upon motion by either party.

Mother filed her Response on 5/28; it is 24 pages long; have read it all but will summarize here; many of her comments occurred before the last order and must be ignored.

At the outset mother testifies that father was given supervised visitation only. That is obviously wrong.

She testified that there has been no substantial change in circumstances affecting Sarah that would show that a modification of custody is essential to Sarah’s welfare; father has failed to present admissible and convincing evidence to the Court to show same; she vehemently opposes overnight visitation; believes it is worth mentioning to the Court that said abuse took place just over a year ago; was a one-time arrangement that she allowed Sarah to spend the night with father; was hopeful that father would show Sarah and mother that he was able to handle an overnight visitation; it did not work out.

Mother testifies that the Child Protective Services Report dated January 17, 2019, was barely referenced in father’s second Request for Order filed on April 19, 2019; it was unsubstantiated; father takes the time to inform the Court that said report was “alarming,” but fails to say why; mother testifies that is because there is nothing to inform the Court about; as a mandated reporter, Sarah’s teacher felt the need to file a report with CPS due to Sarah telling her teacher that mother instructed her to stand up to bullies and also that she drinks wine; Sarah and mother met with the CPS worker; mother was never contacted again, and the report was found to be unsubstantiated.

Mother testifies that Sarah now attends one of the best schools in Santa Barbara County, Howard Carden School; only reason she enrolled Sarah in Notre Dame School in Santa Barbara was due to Howard not having an open spot for her; when notified that there was a vacancy at Howard, she enrolled Sarah. Sarah is flourishing at Howard; she speaks French, can now tell time and can count currency; she did not like attending Notre Dame because she was subjected to bullying.

Mother testifies that father complains multiple times in his declaration that he now has to drive twenty to forty minutes to exercise his weekday visitation with Sarah; she contends that a twenty to forty minute ride to pick your child up from school seems short and reasonable. Nevertheless, mother testifies that she tries to accommodate father’s schedule and encourages his visitation; she will agree to extend his weekday visitation time by one hour to begin at 3:00 pm. and conclude at 7:00 pm.

She believes that caution should be exercised before making any changes to the order; that if the Court grants father’s requested orders, Sarah will be very negatively impacted.

Father’s “Reply” Declaration filed 5/30/19

It is 13 pages long; have read it all; will only summarize now; but will point out that the declarations and information supplied in this case have been extraordinary and exhaustive.

Father testifies that he was diagnosed with schizophrenia back in March 2014, five years ago; was in fact on medication for a short period of time; slowly recovered from taking the medication and found other ways to cope like exercise therapy, drawing and art. Testifies that his mental state from five years ago cannot and should not be taken into account now because it does not reflect his present mental state; that there is no actual evidence to confirm that he choked Sarah or locked her in her room; the reason why he didn’t fully state what he found in that report was because he was ordered to not bring up specific details without the permission of the presiding juvenile judge. He is asking the Court and the Judge herein to request access to these reports so the Court can read them thoroughly; and make his own conclusions.

Father testifies that the CPS report against him was filed 12/2017, but daughter has made present claims about her mother slapping/spanking her in the recent 1/2019 report.

Father’s references to incidents that occurred before the last order are ignored; they cannot be used in making modifications to existing orders.

On multiple occasions he has kept daughter overtime due to mother’s lateness, including most recently this past Memorial Day.

As for Sarah’s school, messages on Talkingparents can confirm that Howard Carden was never in the list of suggestions for her school; mother only started looking at other options because Adelante, the school she is still on the waiting list for and the only other school they have ever talked about, had no other open spots. Howard was never in consideration before this.

Despite mothers claims that he has never been involved in daughter’s school activities, he has pictures on a school field trip and has tried to be informed as much as he can; in her old school he was only aware of what was posted on the front bulletin board and if he ever got in contact with her teacher, he would ask what he could; in her new school now, he is in the dark; only sees what is on the school website and whatever forms daughter comes home with when he picks her up.

Father testifies that Sarah has in fact made it clear that she wants to spend more time with him and her brother; messages on Talkingparents show that mother states herself that daughter feels like she no longer has his full attention and it would be beneficial for them to spend more alone time together; he thinks this is what the Court needs to consider the most when helping in making this decision because it doesn’t make sense that now mother is asking for supervised visitation when they haven’t had supervised visitation in several years and she has never brought up an issue with visitation being unsupervised in the past; testifies that he didn’t state that he wanted to make time up for the last six years of daughter’s life; does want to make time up for the times this past year since the 2/2018 Court order when his visitation was unjustly violated; he wants to be considered, when looking for someone to watch daughter for several days when mother is on work trips or personal trips; wants to be involved and he does not see any valid reason as to why he should be denied these rights.

The Court’s Conclusions

The Court does not find that there has been a showing of either a material change of circumstances or that the best interests of Sarah would benefit from significant changes in custody and visitation that father now requests. The additional hour on Monday and Wednesday nights apparently has been already agreed to and is formally ordered. The Court will not ask to see the juvenile Court records or ask to see any confidential documentary materials. That information will not be helpful because it includes unsubstantiated hearsay and no record of what facts were ever determined; it is inconclusive. Father’s request to have Sarah when mother is away for work will not be granted; it is often referred to as the first right of refusal but that invariably requires vastly more cooperative spirit between the parents then has been demonstrated here.