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Tentative Ruling
Judge Thomas Anderle
Department 3 SB-Anacapa
1100 Anacapa Street P.O. Box 21107 Santa Barbara, CA 93121-1107

FAMILY LAW

Daniel Guerrera v. Shannon Mackall

Case No: 17FL02309
Hearing Date: Tue Jan 09, 2018 10:30

Nature of Proceedings: Req. for Order: Modification Child Custody/Visit/Drug Testing/Neutral Supervisor; Req. for Order: Visit

Father’s Request for Modification of Child Custody/Visit/Drug Testing/Neutral Supervisor filed in pro per; Mother’s Request for Visitation filed by Marcus Morales.

Attorneys

For father: J’Aimee Oxton

For mother: Marcus Morales

Rulings

1. Mother’s objection to father’s late filed 1/4/18 response is DENIED. The response is accepted.

2. Mother’ objection to all new and unsolicited matter included in father’s reply is DENIED except as set forth below.

3. Mother’s motion to strike Exhibit “F,” “G” and “H” because they lack authentication; GRANTED.

4. Mother’s request to modify the custody and visitation order entered on July 11, 2017, and to provide mother unsupervised visitation every Tuesday from 3:00-7:00 p.m. and every Saturday from 9:00 a.m. to 5:00 p.m. beginning January 1, 2018; exchanges at La Cumbre Plaza Starbucks in Santa Barbara; DENIED.

5. Mother’s request that, in the alternative, non-professionally supervised visitation to mother be ordered every Tuesday from 3:00-7:00 p.m. and every Saturday from 9:00 a.m. to 5:00 p.m; exchanges at La Cumbre Plaza Starbucks with the maternal grandmother, Ann Digiorgio, as an approved supervisor, is DENIED.

6. Mother’s request that, in the alternative, non-professionally supervised visitation to mother be ordered every Tuesday from 3:00-7:00 p.m. and every Saturday from 9:00 a.m. to 5:00 p.m. is DENIED.

7. However, mother shall have non-professional supervised visitation with family friend, Sarah Sue Wadell, as an approved supervisor, as follows:

A. EVERY Tuesday from 3:00-7:00 p.m. beginning January 16, 2018; and

B. EVERY OTHER Saturday beginning January 13 from 11:00 a.m. to 5:00 p.m.

C. If Sarah Sue Wadell is not available, it is the responsibility of mother to schedule and arrange supervised visitation through a local agency that provides supervised visitation services at her expense OR with a supervisor agreed upon between mother and father before the scheduled visitation.

8. Place of exchange.

A. The request for exchanges at La Cumbre Plaza Starbucks is DENIED; merchants do not need to be involved in family custody exchanges; sometimes it can be combative; instead,

B. Exchanges shall be on the sidewalk in front of the Santa Barbara Police Station on Figueroa Street in Santa Barbara, or at any other mutually agreed-upon place provided that it does not involve a restaurant or other business establishment.

9. Mother’s request for FaceTime calls every Monday, Wednesday and Friday between Mother and Child from 7:00-7:15 p.m., beginning immediately; DENIED; the present FaceTime order is sufficient.

10. Mother’s request for Caden to have a weekend visit with the maternal grandmother, Ann Digiorgio, on the third weekend of every month from Saturday at 10:00 a.m. to Sunday at 5:00 p.m; exchanges to occur at the Starbucks in La Cumbre Plaza, Santa Barbara, beginning January l, 2018; DENIED. Grandparent visitation should be considered by the Court, but it will do so only upon the direct request of the grandparent(s). The reason for that is that the grandparent identified, Ann Digiorgio, is not now a party to this litigation and any “orders” made as to her would not be enforceable. Additionally, sometimes grandparent visitation is only an excuse to modify and expand a previously-considered and established noncustodial parent’s timeshare.

11. But with that said, Ann Digiorgio may participate whenever mother exercises her visitation with the presence of the independent approved monitor such as Sarah Sue Wadell.

12. Mother’s request that father provide Caden's address to mother forthwith and notify mother at least 45 days prior to any changes of address; GRANTED.

13. Mother’s request that father be prohibited from moving out of the City of Santa Barbara without a court order or written agreement of the parties; DENIED. The documentation on the subject is incomplete; mother says there is a Court order that father must live in Santa Barbara; the Court has not found that Order; in any event, mother reports he has already moved; father does not report where he is living. Mother is entitled to know where the child lives; but for now the Court will not make an order on an existing order. If father has violated a Courrt Order, mother has her remedies.

14. Both mother and father are ordered to attend the next available COPE classes; mother has attended PEACE class [certificate filed]; father apparently has not [certificate not filed]; he is ordered to do so forthwith.

15. Father’s request that he be granted sole legal custody in order that he may make swift and appropriate decisions with respect to medical, dental, vision and mental health care: for Caden, and also with respect to his educational needs and placement; DENIED.

16. Father’s request that mother’s visits with Caden be supervised by persons other than her family members; GRANTED.

17. Father’s and mother’s mutual request that visits be supervised by Sarah Sue Wadell (mother’s childhood babysitter, who they earlier both approved); GRANTED.

18. Father’s request that mother be ordered to submit to random drug tests at Project Recovery upon a minimum of four hours written notice (via e-mail and or text communication) from father or his attorney; and that written drug test results be faxed from Project Recovery by a Staff member directly to their attorneys of record the same day; and that mother shall be responsible for the cost of any positive drug testing; however, in the event that mother’s drug test results are negative, father will be required to reimburse mother, for the cost of that test within 24 hours of receiving said receipt of any cost incurred; GRANTED.

19. Father’s request that mother be ordered to communicate and coordinate (via e-mail or telephone) directly with Supervisor Sarah Sue to obtain Sarah Sue’s availability to supervise the visit for mother; that mother is responsible for contacting the Supervisor to schedule the specific day and time for her supervised visit so that the Supervisor’s availability is confirmed before requesting that Caden be made available for visitation on a specific date or at a specific time; DENIED. Mother has requested precise dates and times above in paragraph #6 and the Court has approved them; additional dates and times may be requested by mother if the supervisor is available, but any additional visitation timesharing is subject to father’s consent and approval.

20. With that said, mother shall notify father 24 hours in advance IF the visitation with the approved supervisor WILL NOT GO FORWARD.

21. Father’s request that the Court take judicial notice of juvenile court records, in particular (1) Dispositional Findings and Order, filed 06/13/2017, and Findings #3, 8, 9, 10, 14, 26 and 35; Orders, #29 and #31; (2) Disposition Report, received May 30, 2017 (referred in #3 in Dispositional Findings and Order, supra) and pp. 2- 5, and Attachment 2. DENIED.

22. The court notes that Family Court Services [i.e. mediation] reported that father “refused to bring the child to mediation.” In future mediations, father will not do that again.

Analysis

Mother’s RFO

Filed on 12/11; hearing set for 1/30/18 [advanced to 1/9/18 by ex parte order]; seeks orders on (1) Modification To Visitation Orders, and (2) Notification of minor's address and school; minor is Caden Guerrera; born 7/26/2011; RFO is 44 pages long; the Court summarizes; she seeks to modify a July 2017 order that set joint legal custody; sole physical custody to father; supervised visits to mother; visits supervised by her family members; seeks the following orders [as now applicable with the passage of time]: specifically she seeks to

1. Modify the custody and visitation order entered on July 11, 2017, to provide mother unsupervised visitation to her every Tuesday from 3:00-7:00 p.m. and every Saturday from 9:00 a.m. to 5:00 p.m. beginning January 1, 2018; exchanges at La Cumbre Plaza Starbucks in Santa Barbara; and

2. Or, in the alternative, non-professionally supervised visitation to mother every Tuesday from 3:00-7:00 p.m. and every Saturday from 9:00 a.m. to 5:00 p.m; exchanges at La Cumbre Plaza Starbucks; approve the maternal grandmother, Ann Digiorgio, as an approved supervisor, and family friend, Sarah Sue, as an approved supervisor, beginning January 1, 2018.

3. FaceTime calls every Monday, Wednesday and Friday between mother and Caden from 7:00-7:15 p.m., beginning immediately.

4. Caden to have a weekend visit with the maternal grandmother, Ann Digiorgio, on the third weekend of every month from Saturday at 10:00 a.m. to Sunday at 5:00 p.m; exchanges to occur at the Starbucks in La Cumbre Plaza, Santa Barbara, beginning January l, 2018.

5. Father to provide Caden's address to mother forthwith and notify Mother at least 45 days prior to any changes of address. Father be prohibited from moving out of the City of Santa Barbara without a court order or written agreement of the parties.

6. Father to provide the minor's school information forthwith.

Mother testifies in her declaration that father has cancelled numerous visits and attempted to change dates and times last minute; that is why a set date and time for her visits is appropriate at this time, so father cannot cancel them arbitrarily; she has not failed a single drug or alcohol test at Case Serena; takes full responsibility for her actions and her prior dependency issues; has become a stronger person both mentally and physically since her hospitalization; one goal in life is to successfully parent Caden.

Mother testifies that the present Court Order provides that she will have Face Time visits with the child, Caden Guerrera, twice per week “while she lives where she cannot visit him in person.” That father has prevented her from having Face Time calls. She had to call the police and file a police report for Father’s violation of the Court order. She requests that she have set days and times that father cannot unilaterally change.

Mother testifies that she has requested information about Caden’s current address and where Caden is attending school; that she is entitled to this information; the current Court order states that father lives in Santa Barbara and she specifically joined a program in Santa Barbara to be close to Caden; it is her understanding that father moved with Caden to Lompoc, without notifying her, and that Caden is currently enrolled in School in Lompoc; that would be a violation of the current joint legal custody order; thus she requests information regarding Caden's current address and Caden’s current school.

Father’s RFO

Filed 12/13; 52 pages long; attaches Exhibits a through E; summarized as follows; he requests that the Court modify the existing orders in four respects:

1. That father be granted sole legal custody in order that he may make swift and appropriate decisions with respect to medical, dental, vision and mental health care: for Caden, and also with respect to his educational needs and placement;

2. That mother’s visits with Caden be supervised by persons other than her family members; specifically, that the visits be supervised by Sarah Sue Wadell (mother’s childhood babysitter, who they earlier both approved); or by father’s sister Patricia in the event that Sarah Sue is unavailable; and, lastly, in the went neither Sarah Sue nor some paternal family member is available, by one of the approved supervisors on the Court’s roster, to be paid for by mother;

3. That if mother’s representations that she is moving out of Casa Serena residential treatment later this month are true, that mother be ordered to submit to random drug tests at Project Recovery upon a minimum of four hours written notice (via e-mail and or text communication) from father or his attorney, which offers no-cost/low-cost drug testing on a sliding scale; written drug test results to be faxed from Project Recovery by a Staff member directly to their attorneys of record the same day; mother shall be responsible for the cost of the drug testing; however, in the event that mother’s drug test results are negative, father will be required to reimburse mother, through counsel, for the cost of that test within 24 hours of receiving said receipt of any cost incurred; and

4. Mother be ordered to communicate and coordinate (via e-mail or telephone) directly with Supervisor Sarah Sue to obtain Sarah Sue’s availability to supervise the visit for mother; that mother be responsible for contacting the Supervisor to schedule the specific day and time for her supervised visit so that the Supervisor’s availability is confirmed before requesting that Caden be made available for visitation on a specific date or at a specific time.

Father testifies in his declaration, among other things, that Caden began acting out at school, going so far as to hit another student; further conversations with school staff convinced him that Caden’s abrupt change in demeanor and behavior began as soon as Caden began to have regular visitation with mother last month, and then escalated to “hitting” following his 11/24/17 visit with mother, when Ann left Caden unsupervised with his mother at least long enough for mother to cause Caden to fear that he will be forced to leave their home; there is an additional problem with the current shared legal custody; when prospective medical and mental health providers learn that he shares legal custody of Caden with mother, father learns that they can only treat son on an “emergency basis,” that is, they can only render emergency care, unless mother also consents to any non-emergency treatment; she either won’t, or she isn’t available to discuss it; sad fact is that mother’s brief stint (her current one) in a residential treatment program at Casa Serena has NOT made her “clean and sober.” Even if mother manages to be clean and sober on day one, there is no acceptable degree of certainty, or even a probability, that she will also be on day two; minor child has witnessed too much trauma in his six young years, and he harbors too many fears about his future.

Mother’s Response to father’s RFO

Filed 12/26; is 11 pages long; the Court will only summarize; she objects to father’s requests and instead requests that the Court order:

1. Current joint legal custody order be maintained.

2. Unsupervised visitation to mother every Tuesday from 3-7 pm. and every Saturday from 9am-5pm. Mother agrees to random drug testing through project recovery upon 24 hours notice with reimbursement from father within 24 hours for every "clean" test.

3. Unmonitored Facetime calls every Monday, Wednesday and Friday from 7:00-7:15 pm

4. The maternal grandmother to have weekend visit once per month from Saturday at 10 am to Sunday at 5 pm.

5. Father to notify mother of minor’s address and school information.

6. Father be prohibited from moving from Santa Barbara without 45 days prior notice or Court order.

In her declaration mother incorporated by reference her Request For Order filed with the Court on December 11, 2017; she had detailed the steps she has taken in her path to recovery from drug addiction, how father has been preventing her from seeing and speaking to Caden, how she has passed every drug test at Casa Serena and the history of custody wherein she was always the primary custodial parent until March 2017.

Mother testifies that it is not true that she used drugs after her hospitalization in March of 2017; has been clean and sober since her hospitalization nearly nine months ago; has been drug tested at Casa Serena and passed every single test; is willing to submit to random drug testing; father’s paragraph 18 is a complete lie; is untrue that she threatened father with bodily harm; he is lying to try get the Court to ignore the good progress she has made in her recovery; describes the facts about issues with the supervised visitation and not having set visitation days and times set; it is well-documented that father has now changed his mind and will not allow her mother to supervise.

Mother testifies that she objects to any change in legal custody; father has physical custody and won’t communicate with her regarding Caden; she does not know if or when he needs medical treatment; all that would need to happen is a simple phone call, and she would consent.

Mediation

Reports on 12/20/17 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. Father refused to bring the child to mediation. The Court may want to consider ordering the parties to attend PEACE and COPE.

Father’s “late filed” Reply to mother’s response to his RFO

Filed on 1/4/18; 11 page declaration attaches Exhibits A through H; he is aware that it should have been filed five days before hearing but holidays and other issues prevented timely filing; the Court has read it all. The request to permit it to be filed should be granted.

Mother’s Sur-Reply and Objections to mother’s “late filed” Reply

Filed 1/5/18; Objects to the Court reading and accepting father’s late-filed response. [The Court will DENY that request. The Court will read and consider it.]

Mother objects to new and unsolicited matter included in father’s reply and asks that the reply be stricken in its entirety. [The Court should DENY that request.]

Mother moves to strike Exhibit “F” AND “G” AND “H” because they lack authentication. Those requests should be GRANTED.

Court’s Conclusions

The Court has read and considered all the exhaustive materials submitted and has provided the Court’s rulings above.

 
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