Robert Fick v. Ashley O’Brien
Case No: 17FL02067
Hearing Date: Tue Sep 17, 2019 10:30

Nature of Proceedings: OSC re Contempt; Req. for Order: Minor’s Counsel

Petitioner’s OSC re Contempt; Req. for Order: Minor’s Counsel

Attorneys:

Glenn L. Robertson for Petitioner [“father”]

Ashley O’Brien [“mother”] in pro per

Ruling: The Court has spent a lot of time reading all the history and all the documents submitted; hundreds of pages; the Court makes the following orders:

1. Mother’s request to appoint minor’s counsel is denied; the appointment is discretionary and father’s argument is more persuasive than mother’s argument.

2. Father’s request that the order for therapy be terminated is granted.

3. Father has asked that the Court decide the issue of contempt “on the documents” in lieu of an evidentiary hearing.” Mother has not responded. The Court needs to have a decision from her if she wants an evidentiary hearing on those issues; she is entitled to one.

4. If mother so elects, the “hearing” will commence at 1:30 pm on Tuesday afternoon 9/17/19.

5. If mother elects to rely upon the documents submitted, the Court will be prepared to rule on the OSC re contempt.

Analysis:

This case was first filed in 8/2017; it all began with a request for a DVRO filed by father; there appear to have been many hearings days over a lengthy period of time; on 7/17/2018 Judicial Officer Von Deroian made orders including the following: Custody shall remain week on/off with each parent during children’s summer vacation. Father is permitted telephonic contact with the children when in Mother’s custody. When school starts, Mother shall have children every 1st, 3rd, and 5th weekend of the month. Children are to remain living primarily in Santa Barbara with Father per previous Court Orders. Mother is permitted daily telephonic contact with the children between 3:30pm and 5:30pm. Father shall provide his current address and any necessary phone numbers to Mother so that she may contact the children. Father shall find a new counselor for the children. Children are to attend counseling at least two times per month. There shall be no discussion about Custody and/or Visitation with or in the presence of the children.

Mother’s RFO

About a year later, in 6/2019, mother filed an 84 page RFO seeking modification of the 7/17/18 orders related to child custody and visitation; set hearing for 7/2/19; two children, one born in 2009 and one born in 2010; have read it all but will only summarize here; she contends that father has caused children to become alienated from her; he has intentionally negatively impacted her relationship with them; contends that it is in the best interests for the children to reside with her. Father would have visitation on weekends. Seeks many other orders including child abduction orders; father posting a $2,000 bond; joint legal custody attachment orders; physical custody attachment orders.

Father’s Response

He filed a 60 page response and objected to any modification; asked that existing orders, set forth in the Minute Order of July 17, 2018, be continued.

Mother’s 60 page Reply

On 7/19 mother filed her Reply which controverted father’s accusations.

The hearing was set for July 30

The Court entered an extensive order that is only briefly summarized here, to wit: “Mother’s request for a change in physical custody is denied. Father shall continue to have sole physical custody.”

Mother’s subsequent RFO

On 8/16, just 45 days later, mother filed another RFO; this time she is seeking to have “minor’s counsel” appointed; she reports about her thoughts on the matter and says: “At the present time the children would benefit from having a neutral third party advocate for them, listen to their needs and navigate them through this difficult situation.” As to who would pay the fees, she reports that she is “humbly asking the Court to consider” her financial situation; she is in debt from relentlessly fighting to get her children back and she is working after being a stay-at-home mother for over eight years. She set the hearing for 9/17/19.

Mother OSC re Contempt

On the same date, 8/16, mother filed a 48 page OSC re Contempt; charges father has disobeyed “Domestic violence restraining orders and child custody and visitation orders;” She charges that father has violated the order issued on July 17, 2018.

The custody order is as follows:

* Pick up/Drop off Friday, May 17, 2019 at 7:00 pm – Sunday, May 19, 2019 at 7:00 pm.

* Exchange point at 605 E. Janss Rd., Thousand Oaks, CA

* Robert Fick was ordered by the Court not to schedule activities for the children during the other parent’s scheduled parenting time without the other parent’s prior agreement.

Contempt is very serious allegation; father can be jailed for 5 days on each count and/or fined $1,000 on each count; thus the Court sets out what mother has claimed verbatim:

“For our May 17, 2019 exchange, Robert attempted to change my Friday pick up time from 7:00 p.m. to 8:30 p.m. in order for Kennedy to participate in a dance program. He bullied and guilt tripped me in order to get his way. Not only that, Robert had his sister Judy contacted my family members in hopes that they could sway my decision. On February 19, 2019 I was sent a Talking Parents message saying, “It falls on your weekend. Let me know what you want to do?” When this came up last year, I was strong armed into giving up precious time with the children. At our hearing in May, 2018, the judge frowned upon this change and specifically ordered us NOT to put extracurricular activities before my custodial time. This is mainly why I decided not to allow for this change. Even though I said, “no”, Judy left a voice mail to my cousin Carissa saying, “So, what’s going to happen is the performance begins at 6:30 p.m. here in Santa Barbara and Kennedy goes on first. She should be done between 30 and 45 minutes and then Robert will bring them to the meeting point at Starbucks in Thousand Oaks between 8:15 and 8:30 p.m. I confirmed that I was not in agreement and would be at Starbucks at 7:00 p.m. as ordered by the court. This is when I received an abusive message from Robert via Talking Parents stating that he would bring the kids after the recital regardless. Not only did he show up after the recital, he arrived at nearly 9:00 p.m., only to find that I was not there. Going through the motion of showing up to drop the children off regardless of my answer was emotional abuse upon the children. I was bombarded with excessive text messages and phone calls from the children. It is obvious that Robert, once again, intentionally inflamed the situation in attempt to paint me in a bad light.”

Mother attaches more than 40 pages of text messages.

Mother also submits the declaration of Carissa Rose Perone Lysne, who is her first cousin, in support of her OSC.

Father’s Response to mother’s requests filed 9/4

As for the appointment of minor’s counsel, he does “not believe that ordering minor’s counsel is in our children’s best interest.” He reports that the children are doing extremely well. They are now entering their third year at Washington Elementary School, Kennedy into the 5th Grade and Ethan into 4th Grade. They both had exemplary report cards last year, in terms of academics and socialization. They both have many friends, adore their teachers and their teachers adore them. He believes it is in their best interest to end litigation and let them enjoy school, other children and the love of both parents. He does not believe it is in their interest to be interviewed by an attorney for the children and thereby reliving the events of the last three years.

He submitted Points and Authorities on why the Court should not appoint minor’s counsel. Among other things, he contends that mother’s RFO and supporting declarations contain nearly exclusively inadmissible hearsay and conclusions without foundation. He points out that the Court has the discretion to appoint or deny to appoint an attorney for the children. (Family Code § 3150.) He also points out that there is also no evidence that the parties can afford an attorney for the children. Mother did not file an Income and Expense Declaration.

As for the OSC re Contempt, father is waiving his right not to testify and has filed a Responsive Declaration to OSC re Contempt. He proposes that the court adjudicate this matter based on the pleadings.

As for the therapy issue, he reports that he took the children to CALM for counseling before the court hearing of July 17, 2018, for approximately six months and they were discharged from therapy; took them for counseling in September and October, 2018, to CALM two sessions for each child; was not able to continue therapy because CALM only offers the program for attendance every week; could only take them on the weekend; could not take them every week because mother had the children every other weekend; mother never asked him to continue the counseling for the children; never raised the issue until July 2019 when she filed a Request for Order to change custody; children were doing well and mother did not ask for continued therapy; thought it was OK not to take them; apologizes to the court; meant no disrespect; asks now that the order for therapy be terminated.

As for the phone calls, he reports he has never interfered with mother calling the children; he bought a cell phone for each child and mother has been permitted to phone the children whenever she wanted to do so. Mother has also texted the children nearly every day, often multiple times per day; he has not monitored her calls with the children or listened in on the calls; has not monitored their texts.

As for the dance therapy issues, he explains his position at length; the Court has read what he said and will not report here.

Father submitted Points and Authorities on the issues related to contempt of court; the Court read them. The burden of proof in a civil contempt is beyond a reasonable doubt. There is a presumption of innocence.

The Court’s Conclusions

Father’s arguments and evidence on why minor’s counsel should not be ordered are very persuasive; among other things, there is obviously little money to fund such an appointment; moreover, father’s declaration related to how the children are doing in school is convincing testimony on the issue. On the contempt issue the Court needs to know if mother wants an evidentiary hearing; if so, it should go forward forthwith.