Susanna Munoz v. Michael Mata
Case No: 1383554
Hearing Date: Tue Apr 09, 2019 10:30

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

Req. for Order: Modification Child Custody/Visit

Attorneys: Marcus Morales for Petitioner (“mother”); Respondent (“father”) in pro per

Ruling:

1. The Court will interview Andrew; bring him to the Family Law Calendar at 10:30 am; ask for priority.

2. 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.”

3. The Court will interview Andrew in chambers; only the Court will question him; father and mother’s counsel may submit questions in advance.

The parties will meet and confer and select from the following options:

Option #1. The Court will meet with Andrew in chambers with the parties, i.e., father, mother and mother’s counsel. The Court will then hear whatever the parents’ think about the “new” evidence, out of Andrew’s presence. The Court typically makes a decision immediately thereafter.

Option # 2. The Court will meet with Andrew in chambers without the parents and 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.” The Court has had some experience with this kind of problem before; it means an additional two weeks before the decision can be published; it takes a day or two to get the transcript prepared; the parents must then pay for the transcript; the Court will not make a decision in the case until the parties have had a chance to read the transcript so they can submit any additional declarations and be prepared to argue the tentative. That is to say, the parties should have a chance to comment on what Andrew said, if they wish, before the Court formulates its tentative. Thus, in the past, the decision-making process is put over for two weeks; reporter has a day or two to get out the transcript; the parties have a week to submit briefs/declarations about what was said; the Court formulates and posts its tentative decision.

Option # 3. The parties and counsel waive, on the record, before the interview, their right to file declarations and have a hearing after reading the transcript.

Background/Analysis

Father’s RFO filed 2/4/19

Father seeks to modify custody and visitation; requests that the Court change the present status from “joint legal and physical custody on an equal time share” to “sole legal and physical custody to father.”

Andrew was born January 14, 2005; is currently 14 years old; on February 17, 2012, the court filed their Parenting Plan Stipulation; it provided that mother and father had agreed to joint legal and physical custody, on an equal time share basis; agreement provided visitation to father every Monday at 8:00 am. to Wednesday at 8:00 a.m., visitation to mother every Wednesday at 8:00 am. to Friday at 8:00 am and alternating weekends to each parent; they have been following this schedule for over six years.

Now father seeks sole legal and physical custody and requests that mother be given two weekends out of the month; that they share holidays.

Response filed by mother 3/26

She does not consent to the order requested for child custody and parenting time; instead she seeks sole legal and physical custody to mother with visitation to father every other weekend. Mother contends that father is not a good role model for Andrew; that he is currently unemployed; since he has no income, he lives in between two of his family member’s houses; mother understands that Andrew or father sleeps on the couch at both residences and Andrew does not have his own room. Mother acknowledges that father requests that the Court speak to Andrew; believes father is pressuring Andrew to say that he wants to live with his father, even though he does not want to.

Mediation

On 3/28/19 Family Court Services reported that no agreement had 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 obtain more information regarding the child pursuant to Family Code 3042(a)(b)(c).)

The Court’s Conclusions

The Court will interview Andrew.