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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

Arthur Mullen, Jr. v. Bianca Tarbuck

Case No: 16FL02936
Hearing Date: Tue Mar 13, 2018 10:30

Nature of Proceedings: Req. for Order: Modification Child Custody/Visit/Req. to Use Talking Parents

Father’s RFO

Attorneys

Maureen Grattan, Attorney for Petitioner (“father”)

Marcus Morales, Attorney for Respondent (‘Mother”)

Ruling

1. Father shall have sole physical custody of Olivia until further order of Court.

2. The parents shall continue to share joint legal custody of Olivia until further order of Court.

3. Mother shall have supervised visitation by a professional visitation supervisor, once her treating psychiatrist provides a letter stating that in his/her professional opinion, mother is stable enough to have visitation with the child.

4. Supervised visits shall be every Monday and Thursday from 4 pm to 7 pm. All costs for the supervisor shall be at mother’s sole expense. The dates and times of the supervised visitations may be modified by a written agreement signed by both parties, in advance.

5. Father has listed the supervisors that he would approve; additions or subtractions to the list can be made only with prior “written” approval of father.

6. Mother’s request that the maternal grandfather Paul Tarbuck be an approved supervisor is rejected.

7. Either parent may require random drug testing at his or her own expense unless the test turns out “dirty.” Under such circumstances the party testing “dirty” must reimburse the other party the cost of the test within five calendar days.

8. Father’s request that supervised visitation can take place only if mother demonstrates with a Breathalyzer that she has no alcohol in her system and by a urine test that she has no non-prescribed drugs in her system is denied.

9. Mother’s request that the Court order father not to consume alcohol while Olivia is in his custody is denied.

10. Father’s request for a restraining order is denied; however, his request that “the parties communicate only through using ‘Talking Parents’ software” is granted; mother’s request to narrow this order to only address issues related to the minor child is rejected.

11. Mother’s request that there be a status report for June 13, 2018, is rejected. Custody and visitation orders are modifiable pursuant to case and statutory authorities.

12. Mother shall complete the PEACE requirement by May 1, 2018.

Analysis

This matter began with father’s ex parte motion filed 2/28/18; father sought emergency orders regarding child custody and visitation; asked for temporary sole physical custody; no visitation to mother; that the parents use “Talking Parents” software to communicate; father testifies, via his motion, that mother's mental health is very unstable. Since the last Court order (December 13, 2016), Mother has attempted suicide at least five times.

Father reported that this would be a change in a 2016 order that said: Joint legal custody; Mother to have physical custody on alternating weekends from Friday at 5:00pm to Sunday at 5:00pm and Wednesdays from 4:00pm to 7:00 pm; Father all other times.

Mediation was set for 3/7/18.

Mother opposed the Ex parte motion.

The Court read her declaration.

Ruling on the Ex parte motion

The Court granted the motion; that is, the Court gave father temporary sole physical with no visitation to mother and set the hearing for 3/13/18 shortly after the scheduled mediation.

Mediation

Mediation was set with Family Custody Services on March 7, 2018. Mediation reported 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. Mother was required to attend the PEACE class.

Father’s Modification and Declaration filed 3/1/18

It is 71 pages long; I have read all the admissible testimony and related evidence; the Court can only summarize; he requests that the Court grant him sole legal and physical custody, with no visitation with mother, or in the alternative, only limited supervised visitation by a professional visitation supervisor, once her treating psychiatrist provides a letter stating that in his/her professional opinion, mother is stable enough to have visitation with the child, and on the condition that mother demonstrate with a Breathalyzer that she has no alcohol in her system and by a urine test that she has no non-prescribed drugs in her system.

Rulings on Mother’s Evidentiary Objections to Father’s Declaration

#l. To Para 4, as to any statements attributed to Connie Harper, who is not a party to this action and has not signed a declaration under penalty of perjury. SUSTAINED

#2. To Para 6, as to any statements attributed to Connie Harper, who is not a party to this action and has not signed a declaration under penalty of perjury.

SUSTAINED

#3. To Para 6, as to any statements attributed to Paul Tarbuck who is not a party to this action and has not signed a declaration under penalty of perjury.

SUSTAINED

#4. To Para 8, as to any statements attributed to Paul Tarbuck who is not a party to this action and has not signed a declaration under penalty of perjury.

SUSTAINED

#5. To Para 9, as to any statements attributed to Connie Harper, who is not a party to this action and has not signed a declaration under penalty of perjury. Father was not a personal witness to the alleged events thus cannot attest to them without violating the hearsay rule or having the proper foundation.

SUSTAINED

#6. To Para 12, as to any statements attributed to Connie Harper, who is not a party to this action and has not signed a declaration under penalty of perjury.

SUSTAINED

#7. To Para 15, as to any statements attributed to Connie Harper, who is not a party to this action and has not signed a decimation under penalty of perjury.

SUSTAINED

#8. To Para 17, as to any statements attributed to Connie Harper, who is not a party to this action and has not signed a declaration under penalty of perjury.

SUSTAINED

#9. To Para 19, as to any statements attributed to Connie Harper, who is not a party to this action and has not signed a declaration under penalty of perjury.

SUSTAINED

#10. To Exhibit A as to the purported text messages allegedly sent by Connie Harper, who is not a party to this action, who has not signed a decimation under penalty of perjury and has not authenticated the alleged text message.

SUSTAINED

#11. To Exhibit C as to the purported text messages allegedly sent by Paul Tarbuck, who is not a party to this action, who has not signed a declaration under penalty of perjury and has not authenticated the alleged text message.

SUSTAINED

#12. To Exhibit H as to the purported text messages allegedly sent by Paul Tarbuck, who is not a party to this action, who has not signed a declaration under penalty of perjury and has not authenticated the alleged text message.

SUSTAINED

#13. To Exhibit J as to the purported text messages allegedly sent by Connie Harper, who is not a party to this action, who has not signed a declaration under penalty of perjury and has not authenticated the alleged text message.

SUSTAINED

#14. To Exhibit L as to the purported text messages allegedly sent by Connie Harper, who is not a party to this action, who has not signed a declaration under penalty of perjury and has not authenticated the alleged text message.

SUSTAINED

Mother’s Declaration filed 3/8/18

It is 60 pages long; I have read it; the Court can only summarize; she does not consent to the order requested; contends it is improperly pleaded and must be denied; she does agree to limit communication between the parties to using “Talking Parents" but only to discuss the minor child. More specifically she asks the Court to maintain the current custody order entered December l3, 2016 (joint legal custody, sole physical custody to father with unsupervised visitation to mother every Wednesday and every other weekend), or in the alternative: To Order supervise visitations to mother, with the maternal grandfather, Paul Tarbuck, as supervisor, every Wednesday from 4 pm. to 7 p.m., and every other Saturday and Sunday from 9:00 am. to 7:00 pm. (starting March l7, 2018). If the maternal grandfather is unavailable, then mother may arrange a professional supervisor to monitor the visitations. If the Court orders this option, mother requests a status hearing on June l3, 2018, to review the visitation orders and possibly order unsupervised visitation.

Mother testifies that she is doing well in her treatment, regularly attending therapy and practicing new ways to cope with her issues; that she has had regular visitation with the minor and reports the dates; these are just the visitations that were requested by mother and “allowed” by father; testifies that mother requested visitations on numerous other days; father denied the visitations or did not respond to mother's request; requests that the Court allow the maternal grandfather, Paul Tarbuck, to be the supervisor; that father knows she does not have the financial means to pay for a professional supervisor.

Mother testifies that the timing of the events is important; father waited over 2 ½ months after the December incident to file an Ex-Parte hearing. During those 2 ½ months, he allowed Paul Tarbuck and mother visits with Olivia, until he found out she was dating another man; additionally, she has never attempted to hurt herself while Olivia was in her care; these issues are the same issues that father complained of in 2016 when the Court ordered unsupervised visitations.

Since the December 2017 incident she has not consumed alcohol; is willing to submit to an order that she cannot consume alcohol during visits and will submit to a Breathalyzer test; the December l3, 2016, order requires both parties to submit to random drug testing; father has alcohol issues, and she requests that father not consume alcohol while Olivia is in his custody; Olivia is currently attending pre-school; there are no allegations that she has withheld any consent or any other issues pertaining to legal custody of Olivia; father’s request for sole legal custody is made in bad faith; father has tried to “sneak” in a request for a restraining order, without stating any grounds as to the reason why; she has never harmed father, or threatened to harm father. Mother is agreeable that all correspondence between the parties should be limited to Olivia and be through “Talking Parents." The restraining order request is improperly pled. Mother lives down the street from father; thereby creating a constant violation of the potential restraining order if father walks outside his door, thereby harassing mother; she requests that father’s request for a restraining order be denied.

Status Report filed 3/8/18 by father’s lawyer

The report is summarized: The parties were unable to reach a settlement of the pending custody issues during their mediation session on March 7, 2018, with Patricia San Filippo. Father's position remains unchanged. Mother has had mental health and addiction problems for years. In 2017 alone, she attempted suicide at least five times. At least two of those times, she was almost successful. In the spring of 2017, she was rescued from an elevated parking structure shortly before she jumped. In December 2017, just two months ago, she was on a ventilator in the hospital following another suicide attempt. Mother should not have unsupervised visitation with the toddler who is the subject of this motion. Father requests that mother's visitations be professionally supervised so that both the Court and father can have input from a neutral party as to how the visits are going. Father requests sole legal and sole physical custody of the minor child, Olivia, with twice weekly professionally-supervised visitation with mother.

Court’s conclusions

Father’s requests should be granted, at least in part, as set out above because the December 2017 incident creates a real concern to the Court.

 
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