Susanna Munoz v. Michael Mata
Case No: 1383553
Hearing Date: Tue Apr 23, 2019 10:30

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

Req. for Order: Modification Child Custody/Child Support

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

Ruling:

1. The parties shall have joint legal custody as defined below.

2. Father shall have sole physical custody.

3. Mother shall have visitation every other weekend from Friday at 5pm to Sunday at 5pm and every Wednesday evening from 5 pm to 8pm.

4. Father’s request that mother attend parenting school or take parenting classes is rejected.

5. Any subsequent request made for child support should be assigned to this Department.

6. For the purpose of this order “joint legal custody” shall be defined as follows: The parent under whose care the child is at any given time shall have the day-to-day decision-making rights and responsibilities during that period of time. The parents shall consult and cooperate with each other regarding all issues affecting the health, education, and welfare of the child, including the following specific areas:

A. School placement

B. Special educational services

C. Extra-curricular activities

D. Long-term or after-school childcare

E. Non-emergency medical services

F. Dental and orthodontic services

G. Psychological/psychiatric services

H. Practice of religion

If after adequate consultation the parents are unable to reach agreement on the above issues, after notifying the other parent either parent may do what he or she determines is in the best interest of the child regarding the disputed issue during the time that the child is in his or her care, unless modified by order of the court. Both parents shall have access to all school and medical records. Either parent may submit the child to emergency medical or dental treatment, routine check-ups or treatment for minor illness without prior consultation with the other parent, although the other parent shall be notified of such treatment.

Analysis

This case was last on calendar on 4/9; after the interview the Court continued it to 4/23 to provide the parties to submit any input after they had a chance to read the transcript of the interview.

Background

Father’s RFO was 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 Interview

The Court interviewed Andrew. The parties chose option #2 of the Court’s tentative ruling. At 11:15 a.m. in chambers and on the record the Court met with Andrew; after the interview the Court addressed counsel and the father about obtaining a copy of the interview transcript and continued the matter to 4/23/19.

Mother’s Supplemental Declaration

Mother’s response is thorough and extensive; have read it all but will only summarize some of the issues addressed by her.

She testifies that she was surprised and saddened when she reviewed the transcript regarding the interview with Drew; information is false and is information that Drew’s father has been complaining about to her for years about his personal issues with her; father has finally lied and manipulated Drew enough to start believing him; Jose and Drew have a good relationship, usually every week they will stop by Jose’s worksites with Drew and drop off lunch and say hi to him; father never liked Jose; has frequently said that Jose is “not Drew’s father” and that he works too much; father has said on multiple occasions over the past several years that he will one day get Jose out of Drew’s life.

Mother testifies that father has poisoned Drew to say untrue statements about her; she has attempted to keep Drew out of this courtroom drama; after reading the transcript, she was hurt that Drew told so many lies about her; asked Drew why he would say things that were not true to the judge and Drew responded, “Don’t you think I was nervous? I was talking to the judge.” She believes father influenced Drew to lie about her.

Mother testifies that father used to complain that about her having a beer after work when they were together; this is again another issue father has fed to Drew; the biggest lie is when Drew said she abandoned him when he was only six years old; that is incorrect; father always told her, and now he has told Drew, that she abandoned them; was not the case.

Mother testifies that father is homeless; jobless; takes Drew out of school causing his grades to suffer; has manipulated and forced Drew to lie in order to advance his selfish motives; father has one goal, to try and get child support from her because he is unwilling to work; asks the Court to consider all the facts in this case, the fact that they have always had 50-50 custody for Drew’s 14 years, and that she is a good mother; she needs at least 50% of the time with Drew, so that she can help raise him to be a man who can at least have a job and a home someday, unlike Father; requests that the Court deny father’s motion and maintain the current joint legal and physical custody order on a 50-50 time share basis as they have done for several years; also requests sanctions against father for lying in his declaration, and to the police, in the amount of $500.

Mother’s Points and Authorities

Points to the fact that the Court is required to only “consider” and give “due weight” to the preferences of a child of sufficient age and capacity to reason so as to form an intelligent preference as to custody and visitation. Cal. Fam. Code § 3042. As such, a children’s preference is only one factor in making a custody and visitation decision. Contends the case is striking similar to Marriage of Winternitz (2015) 235 CA 4th 644, 656, where the court went against a 12-year-old boys’ preference to relocate with the custodial parent (mother); court of appeal found no error; permitted an award of physical custody to father, over the child’s objection, where the evidence showed the greatest risk to the child was losing the relationship with his father. Drew states he wants to live with his father; all the complaints he has are gripes father has had against mother since they separated.

Mother’s evidentiary objections

She objects to portions of father’s supplemental declaration on the following grounds:

Copy of Police Report. Objection. Hearsay. Lack of Authentication SUSTAINED

References to Officers Statements. Objection. Hearsay. SUSTAINED

Father’s supplemental declaration

The Court has read it all but summarizes here.

Father testifies that after all recent findings and events he strongly feels Andrew should be under his care 90 percent of the time and give mother 10 percent visitation; ask that she be ordered to take parenting classes; also seek some type of counseling to improve the relationship between Andrew and herself; so that in the future Andrew will feel safe and loved under her supervision.

The Court’s Conclusions

The Court has read everything; considered everything; weighed everything. But the Court disagrees with mother’s assessment that father has so influenced the 14-year old that he lied to me in the interview. I found him to be consistent; straight forward; believable. He wants to live with his father and have visitation with his mother. The Court will not ignore what he plainly wants to do and more importantly, why he wants to do it. I believed him and I do not feel he is simply restating what father told him to say. I find there has been a change in circumstances based upon what the minor child told me. I further find his best interests would be served by a modification of the current custody and visitation orders. I have considered the law on the subject which is summarized as follows.

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.