Rosa Alicia Silva and Manny Silva
Case No: 1244918
Hearing Date: Tue Apr 23, 2019 10:30

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

Req. for Order: Modification Child Custody/Visit

Petitioner (“mother”) is represented by Tracy Rangel Cruz; Respondent (“father”) is self-represented.

Ruling: Father and mother have made it clear the Court should talk to the minor child.

California Rules of Court Rule 5.250(d)(6) provides that “No testimony of a child may be received without such testimony being heard on the record or in the presence of the parties.This requirement may not be waived by stipulation.” [Emphasis added by the Court.]

The Court will interview the child in chambers; only the Court will question the children; counsel may submit questions in advance.

Counsel for mother and father will meet and confer and select from the following options:

Option #1. The Court will meet with the child in chambers with the parties i.e. the parents and mother’s counsel present. After the interview but without the child present the Court will then hear whatever the father and mother’s lawyer think about the “new” evidence, out of the presence of the child. The Court typically makes a decision immediately thereafter.

Option # 2. The Court will meet with the child in chambers without the parents and mother’s counsel present but on the record; but the record must be made available to counsel and the parties before the Court formulates and publishes a tentative decision so they can provide any input on the “interview.” Parents have elected this option in the past; it means an additional two weeks before my tentative decision related to the interview can be published because it takes a day or two to get the transcript prepared; the parents must then pay for the transcript; the parties have had a chance to read the transcript so father and mother’s counsel can submit any additional evidence and be prepared to argue the tentative. That is to say, the parties should have a chance to comment on what the children said, if they wish, before the Court formulates its tentative. Thus, in the past, the decision-making process is put over for two weeks [to May 7]; reporter has a day or two to get out the transcript; counsel have a week to submit briefs/declarations about what was said; the Court formulates and posts its tentative decision.

Option #3. Any additional options you can think of would be considered.

Background

Over the years this case has consistently seen a lot of courtroom time; the most recent request was filed by father on 2/19/19; his RFO seeks a change in child custody and visitation; the hearing was set for 3/26; mother filed a status report prior to the hearing;

Father’s RFO filed 2/19 seeks change in child custody and visitation; minor child born 9/2004; father reports that he is asking for sole legal and physical custody; the present order was filed in 5/2008 and ordered joint legal custody and primary physical custody to mother; the visitation order was filed in 3/2014 and father reports that it set visitation at every other weekend, six weeks in summer and half of the school breaks. Father reports that oldest son, Adrian Silva, is requesting to address the Court. Minor child Jacob M. Silva (age 14) specifically requests that he be able to address the Court or judge in chambers. Father attaches form FL-341(D) the physical custody attachment and makes many modification requests AND FL-311 the parenting time attachment that seeks many modification requests. He has filed a 7-page declaration that is also extensive and testifies that he is now coming to the Court to request full custody of his son Jacob; he is pleading to the Court to finally allow his son Jacob to speak with the judge in chambers; that mother has been an un-fit parent and does not deserve to continue raising his son.

Counsel for mother filed a Status Report; reports that father did not follow local rules and set mediation in this case and no mediation has been held; mother requests that he follow local rules, confer with her about a date, and schedule a mediation date prior to the instant RFO being heard. Mother asks that the matter be continued, the parties attend mediation, and that the matter be postponed with sufficient time so that she can engage in discovery directed at father’s current financial circumstances, bring a new fee request so she can afford to retain counsel to litigate the instant matter, as well as bring a contempt action for the existing unpaid fee order.

The Court’s Conclusions were that mother’s requests must be granted; this case obviously must go first to mediation before the matter can be heard in the courtroom. Mother also presents some issues related to her claim that father is in contempt of court and she does not have the funds to retain counsel and wants time to file her RFO seeking relief. The Court also said, in part, that the Court will set a further date for a hearing on father’s RFO and the Court will also address the time requests made by mother about her needing time to file her RFO. Certainly all the requests made by father need to be addressed FIRST in mediation [which is the Court rule]. The mediation date was April 15, 2019, at 1:30 pm. Both sides will attend; do not miss the date. Mother’s boyfriend shall not attend; the Court intends to talk to the 14 year old on 4/23; the 1419 documents of mother shall be filed by April 2, 2019; father shall provide the 1419 documents to counsel for mother no later than April 2, 2019; child support is payable by father pending a hearing on the matter with the understanding that the Court reserves the right to backdate his child support order to March 26, 2019.

Father filed an ex parte motion on 3/28 father seeking the same things the Court addressed on 3/26; his requests were denied.

On 4/3 father filed a status report and said [in summary] that mother’s attorney has requested a full year’s statement for all his credit cards; was ordered to only provide all documents needed under local rule 1419; he did that on Friday, March 29, 2019, in Judge Anderle’s office/chambers; mother and her attorney have failed to provide local rule 1419 documents before the ordered date set forth by the judge of April 2, 2019; they did not follow the judge’s orders and are again requesting more financial statements; mother states that she cannot afford legal counsel, and has yet again delayed this court hearing like in previous and past hearings over financial burdens; she got married in Las Vegas, Nevada on March 23, 2019, three days before the March 26, 2019 hearing; obviously costing anywhere from $500 to $2,000 for the trip/event; he will not settle for 50/50 physical and legal custody, nor will he except (sic) any past lawyer fees be waived and child support be at zero; brought this motion against her for son, not money.

Mother’s Response filed 4/11

Comprised 29 pages; will summarize here; acknowledges that father asks the Court for the following Orders:

1.To modify custody orders so that sole physical custody of 14-year-old son Jacob is awarded instead to father, and changing joint legal custody to father’s sole legal custody;

2. That Jacob’s every other weekend time with father be changed so that Jacob lives with father full time with every other weekend visitation being awarded to mother;

3. That the Court speak with Jacob in chambers;

4. That mother, and not anyone else, provide all future transportation to exchanges;

5. That the non-custodial parent have telephone access to Jacob at reasonable times; for reasonable durations; and that the custodial parent must make Jacob available for scheduled telephone contact;

6. That no person may listen to, monitor, or interfere with the telephone calls;

7. Non Disparagement Orders;

8. That neither parent discuss the court proceedings with Jacob;

9. That father and mother will not use Jacob as a messenger;

10. That Mother not use alcohol or drugs eight hours prior to and during her custodial time;

11. That mother not expose Jacob to secondhand cigarette or medical marijuana smoke;

12. That neither parent schedule activities for Jacob during the other parent’s scheduled time; and

13. That Jacob’s clothing and belongings remain with Jacob.

Mother is opposed to the many of the requests; she does agree that the Court should speak with Jacob in chambers to discern his preferences; agrees to non-disparagement orders; that the court case not be discussed in front of Jacob; that he not be used as a messenger; and that he not be exposed to second hand smoke of any kind.

Mother disagrees with father’s request for change in custody orders and his request to reverse Jacob’s living situation, and go from father having alternating weekends to mother have alternating weekends with Jacob; 18 months ago when elder son, now an adult, was just finishing high school father filed a similar request; his RF0 was replete with many false and salacious allegations; the Court denied the requests he made as for Jacob; she does not feel that their longstanding custody orders should be changed.

Mother testifies that Jacob needs strong guidance and support to make it through this tough adolescent period; she has taken the hard road of having to discipline him; taken his cell phone away (which is his social life-line) and grounded him from social activities; she has met with school official after school official; in response to her disciplinary actions, Jacob has decided he would rather live with father and his unrestricted home environment where father is unconcerned about grades and discipline; she has volumes of emails documenting her daily involvement with Jacob’s teachers regarding his school work and attendance; will provide them to the Court upon request.

Mother testifies that father hasn’t involved himself with Jacob’s schooling, or his current academic difficulties other than to criticize and blame her for Jacob’s failings; for example, she has had Jacob enrolled in basketball since he was five years old; on many occasions Jacob had tournaments during father’s custodial weekend where father would not take Jacob nor allow him to participate; she has had a long and difficult road with father; Jacob’s comments and their discussions have made it crystal clear that he feels living with his father will allow him his cell phone, X-Box and activities without restrictions.

Mother testifies that father’s RFO has attempted to portray him in a very positive light; he has lied to Court about his past; for example, his statement that he has never been arrested while his children are in his custody is false.

Declarations filed on 4/11 in support of mother: Diana Hemsley; Carole Nevarez; Jennifer Case; Rosanna Medina; Robert M. Ruth. The Court has read them and found them very impressive.

Declarations filed on 4/15 in support of father: Father; Adrian Silva; Angelica Ramirez; Jakob Ramirez.

The Court has read them and found them very impressive.

Mediation

Reports on 4/16 that no agreement has been reached between the parties; this matter will need to be determined by a court hearing upon motion by either party. NOTES: The Court may want to consider obtaining more information regarding the child pursuant to Family Code 3042 (a)(b)(c).

The Court’s Conclusions

The Court will interview the minor child.