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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

Colleen Alise Butler and Justin Keith Butler

Case No: 17FL02427
Hearing Date: Tue Mar 13, 2018 10:30

Nature of Proceedings: Req. for Order: Child Custody/Visitation

Case Management Conference

Petitioner Colleen Alise Butler’s RFO

Respondent Justin Keith Butler’s RFO

Attorneys

Gregory W. Herring and Morgan A. Nix, Attorney for Petitioner (“mother”)

Richard Ian Ross, Attorney for Respondent (“father”)

Email: info@theherringlawgroup.com;info@richardrossassociates.com; mnix@theherringlawgroup.com

Ruling

1. Pending trial, the parties shall continue to share joint legal and joint physical custody of the two children.

2. Pending trial mother shall continue to drive the children to their time share with father in Goleta, at his residence, every Thursday evening at 5 pm and she shall drive back to Goleta to pick them up every Sunday evening at 7 pm.

3. Exchanges shall continue to be prompt; father will be at the curbside to receive and deliver the children; neither parent shall be late; communications between the parents will be by email or text messages and shall relate only to children emergency issues.

4. All issues will be re-considered at the trial. With that said, this case needs to have a trial date set; the Court has not ignored counsel’s request that the CMC be continued, but there are experienced lawyers on this case and whenever a trial date is set, that typically works to the advantage of good trial lawyers; this was not a long marriage; they can plan their discovery and work toward resolution with a promise by the Court their case will not be kicked down the alley.

5. Father shall complete and serve his PDD no later than Friday, March 23, 2018.

6. It is obvious from the declarations that both parents will be considering the public school issues prior to the 2018-2019 school year; their declarations make that very clear. Custody time share and the school issues may be the fundamental issues in the case. The declarations on those subjects already exceed hundreds of pages. The Mandatory Settlement Conference is set for September 7, 2018, at 8:30 am in Department 5; the Trial Confirmation Date is set for September 25, 2018, at 11:30 am in this Department; it is a Court trial and the Court has reserved three days [may be expanded for good cause shown]. All declaration now submitted will be considered in evidence provided the declarant is in the courtroom to testify.

7. Father’s request that he be permitted to enroll the minor children in public school at La Patera Elementary forthwith is denied without prejudice.

8. The Court’s Expert witness guidelines was distributed.

9. Pending trial during each of father’s custodial days, mother will be allowed to exercise a 20-minute call with Avery and Charlie at 7:30 p.m., and during each of mother’s custodial days, father is to be allowed to exercise a 20-minute phone call with Avery and Charlie at 7:30 p.m.

10. Pending trial the Court issues a mutual non-disparagement orders issue, such that neither father nor mother may make disparaging comments, insult, or speak negatively about the other parent in the presence of Avery or Charlie, nor allow any third person to do so in either or both in their presence.

11. Pending trial the holiday schedule is:

A. Mother’s Day and Father’s Day: With the parent whose day is being celebrated from 7:30 p.m. the night before until Sunday at 7:30 p.m.

B. Children’s birthdays: If father’s birthday or one of the girls’ birthdays fall during a day when the girls are in mother’s care, father shall have an additional Saturday when the girls are scheduled to be in mother’s care from 10:00 a.m. Saturday to 10:00 a.m. Sunday, the exact date to be determined by mutual agreement at least 30 days in advance.

C. Easter Sunday: From 7:30 p.m. the night before to 7:30 p.m. on Easter Sunday, with father in even years and with mother in odd years.

D. July 4th: From noon until the following day at 8:00 a.m. with father in even years and mother in odd years.

E. Thanksgiving: From Wednesday at 7:30 p.m. until Friday at 7:30 p.m. with father during odd years and with mother during even years.

F. Christmas: From noon on December 24th until noon on December 26th with father in even years and with mother in odd years.

G. New Year’s: From 2:00 p.m. on New Year’s Eve until 2:00 p.m. on New Year’s Day with father when the new-year is an even year and with mother when the new- year is an odd year.

Analysis

The Petition for Dissolution was filed in 10/2017 by mother after 8 years 8 months of marriage and two children; father filed his Response in 11/2017 and reports it was a marriage of 8 years 6 months and two children; it is not a long marriage.

Both sides filed a FLIS

Father’s FLIS

Father reports, among other things, that the parties will attempt to settle the issue of child support after a custodial timeshare is ordered; that father filed his Response and Request for Dissolution on November 25, 2017, but he has still not completed his PDD. Mother has completed and served her disclosures and now asks the Court to order that father complete and serve his PDD no later than Friday, March 23, 2018. The parties cannot engage in meaningful settlement dialogue without exchanging these disclosures; that additional discovery is needed. That the parties are in the midst of litigating the issue of custody. After father has completed his PDD, father intends to meet and confer on all other issues. The parties require additional time to explore voluntary resolution of the case without yet setting trial, and at the hearing on 3/13/18, mother’s counsel will ask that the Court order father to complete his PDD no later than 3/23/18, as well as request a continuance of the Case Management Conference to 4/17/18.

That father is in the process of completing his Preliminary Declaration of Disclosure. He recently issued a subpoena to obtain mother’s employment records, which are due for production on 03/16/2018; are still in the process of determining what other discovery, if any, needs to be propounded; the parties will need an opportunity to meet and confer once PDDs are exchanged and each party has completed his/her discovery.

Mother’s FLIS

Mother reports the parties are in the midst of litigating the issue of custody. After father has completed his PDD, mother intends to meet and confer on all other issues. The parties require additional time to explore voluntary resolution of the case without yet setting trial, and at the hearing on 3/13/18, mother’s counsel will ask that the Court order father to complete his PDD no later than 3/23/18, as well as request a continuance of the Case Management Conference to 4/17/18.

Mother’s RFO

Filed 1/4/18 – set for hearing 2/9/18 – continued to 3/13/18; seeks custody and visitation orders; requests joint physical and joint legal custody of two minor children; visitation to father; 47 pages long; the Court read and reported on it at the ex parte hearing on 1/29; will not repeat what was said then; have reviewed the information in preparation for this hearing; they have two daughters, Avery Jewel Butler, born April 29, 2009, age 8 years, and Charlotte Noelle Butler, born July 28, 2012, age 5 years; mother would like the Court to issue joint legal and physical custody orders; would also like the Court to order a particular visitation schedule which is in the daughters’ best interests.

1. Father’s custodial time take place every other weekend from 6:00 P.M. on Friday to 6:00 P.M. on Sunday.

2. All exchanges to take place in the parking lot of the Home Depot located at 401 West Ventura Boulevard, Camarillo CA.

3. Father have the right to exercise a dinner visit every Wednesday from 6:00 P.M. to 8:00 P.M., for which he will pick Avery and Charlie up and drop them off at her home.

4. That a holiday schedule be set.

5. That during each of father’s custodial days, she will be allowed to exercise a 20-minute call with Avery and Charlie at 7:30 P.M., and during each of her custodial days, father allowed to exercise a 20-minute phone call with Avery and Charlie at 7:30 P.M.; and

6. That mutual non-disparagement orders issue, such that neither father nor mother may make disparaging comments, insult, or speak negatively about the other parent in the presence of Avery or Charlie, nor allow any third person to do so in either or both of their presence.

Declaration of Lauren Bristow filed 1/4/18

Confirms that Charlotte Butler, DOB 7 /28/2012, is a patient at Children's Hospital Los Angeles, under the care of Deepa Bhojwani, MD and Lauren Bristow, NP. Charlotte was diagnosed with leukemia in November 2016. After a complete work up, it was discovered that her leukemia cells expressed a very rare rearrangement that made her eligible for a new Phase II clinical trial. This clinical trial is a part of the national organization titled Children's Oncology Group, and her specific trial, is only available at a select group of institutions nationwide, one of which is CHLA. Subjects enrolled on this trial are given the standard of care for leukemia treatment, in addition to a new drug, by mouth. Due to the nature of her disease process and treatment course, Charlotte is immuno- compromised, and must report to the nearest Emergency Department for any fevers or other major illnesses.

Father’s RFO

Filed 1/9/18; it is 35 pages long; the Court will only summarize; he testifies that he can provide the minor children with stability and consistency; he will make sure that mother has frequent and continuing contact with the children; he seeks sole legal and physical custody; asks the Court to set a visitation schedule as follows:

1. That mother have visitation on alternate weekends from Friday after school, or 3:00 pm. when school is not in session, until Sunday at 7:00 p.m.; and twice per week from after school, or 3:00 pm. when school is not in session, until 7:00 pm.

2. That mother’s visitation shall only take place within Santa Barbara & Ventura counties; and

3. That mother may not remove the minor children from the Counties of Santa Barbara and Ventura without written consent from father or by Court order.

4. That mother return the minor children to his custody forthwith.

5. That mother be responsible for all transportation for custodial exchanges.

6. That he be permitted to enroll the minor children in public school at La Patera Elementary forthwith.

Father submits his Declaration

The Court has read it.

Father submits a Memorandum of Points and Authorities

It is 35 pages long and the Court will only summarize; Father’s counsel reports although this is an initial custody proceeding for legal and physical custody, mother has a history of abducting the minor children; in June, 2014, mother removed the minor children from father in Goleta without his consent or a court order and attempted to have the Los Angeles Superior Court take jurisdiction over the parties and their minor children; father objected; made an ex parte basis; Los Angeles Superior Court transferred venue to Santa Barbara County, which is the rightful jurisdiction since the parties and children had been living in Santa Barbara County before mother impulsively moved the children to Burbank. By unlawfully moving the children to Burbank from Goleta and regularly threatening to not allow father contact with the minor children, mother is interfering with father’s ability to have frequent and continuing contact with them; in essence, mother has caused a move-away to occur without taking the required steps to obtain legal authorization for said move; in a period of approximately three months, mother has seriously considered a permanent move to San Francisco; has moved the minor children to Burbank with the intention of working in Ventura and then living in Fillmore; and is now considering a move to Manhattan Beach. Despite Petitioner’s actions in abducting the minor children, a move to Burbank or other city is not in their best interests. The minor children need and deserve to have stability, which mother is unable to provide; for these reasons, father should have sole legal and physical custody of the minor children.

Mediation

On 1/29/18 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.

Ex parte hearing on 1/29/18

This Court read all the extensive documents filed preceding an ex parte hearing and ordered:

1. The hearing on the competing RFO’s is set for 10:30 am on 3/13/18; and

2. The currently set CMC for 2/6/18 is continued to 3/13/18 at 10:30 am to coincide with the RFO hearings; and

3. The request for sanctions is DENIED; and

4. Pending the hearing the parties shall share joint legal and joint physical custody of the two children; and

5. Pending the hearing mother shall drive the children to their time share with father in Goleta, at his residence, every Thursday evening at 5 pm and she shall drive back to Goleta to pick them up every Sunday evening at 7 pm. commencing Thursday Ill/18; and

7. Exchanges shall be prompt; father will be at the curbside to receive and deliver the children; neither parent shall be late; communications between the parents will be by email or text messages and shall relate only to children emergency issues; and all other issues will be addressed at the 3/13/18 hearing.

Declaration from Mother’s Mother filed 2/28/18

The Court has read it.

Father’s Declaration filed 2/28/18 in response to mother’s RFO

It is 37 pages long and the Court will only summarize; he continues to seek the orders that were summarized by the Court at the time of the ex parte hearing; he does agree to daily telephone calls and mutual non-disparagement orders; he submits his declaration and Points and Authorities; he is not trying to bring “ugliness between us” as mother claims; reason he is seeking sole legal and sole physical custody of the children is strictly because he believes these requests are in the children’s best interests; he still cares for mother and her well-being; believes it is in the best interests of their children that they be in his primary care; that he finds mother’s statement that she would ask for a 50/50 timeshare if he lived in or near Los Angeles disingenuous; but mother infers that Burbank, her current home, should be considered the children’s primary residence even though the Court has not yet made an order on that issue and she has only been temporarily living there since approximately September 2017; mother’s statements to him over the past several months contradict her “desire” for a 50/50 timeshare.

He testifies that he understands mother’s desire to be closer to CHLA; Charlie’s treating physician has never expressed any concern or has ever expressed a directive that Charlie live within a certain distance of CHLA, and her doctor is aware of his Goleta address; he also testifies that while he has not heard negative things about La Patera Elementary School, he would prefer that the girls eventually attend Kellogg Elementary; will be able to transfer children to Kellogg once they are enrolled at La Patera, his zoned school; believes that she has negative feelings about La Patera because of its’ ethnicity mix; although they were not successful getting Avery into the public school system through a lottery, they enrolled her into public school at Open Alternative School, which mother failed to inform the Court about; mother was unhappy about the school’s communication with them and insisted she be home-schooled; he reluctantly agreed; mother has done the bulk of the leg work navigating the homeschool process as they agreed when she approached him about homeschooling their daughters, mother has misinformed the Court regarding his involvement in the process.

Father contends that he does not have a have a long-standing issue with alcohol or anger nor is he dependent on Ritalin; takes Ritalin for his ADHD, which is prescribed and administered under a doctor’s care; needs to take this medicine for his ADHD - otherwise he could become hyperactive and less able to pay attention to tasks at hand. Dr. Schubert is a qualified doctor who he has been seeing for many years.

As for the holiday schedule, he responds as follows to mother’s proposal regarding holidays:

A. Mother’s Day and Father’s Day: Agreed.

B. Parents’ Birthdays: That this not be a part of the holiday schedule.

C. Children’s birthdays: That the non-custodial parent shall have a two-hour visit with the children on each child’s birthday.

D. Easter Sunday: Agreed.

E. Fourth of July: Agreed.

F. Thanksgiving and Christmas: generally agreeable to mother’s proposal except that the even/odd should change so that if he has Thanksgiving in odd-numbered years, then he would want Christmas in even-numbered years, and likewise for mother.

G. New Year’s Eve: Agreed.

Father attaches Exhibits A through D to his Declaration.

Mother’s Declaration filed 2/28/18 in response to father’s RFO

It is 101 pages long; attaches exhibits A through J; the Court will summarize; father’s paperwork presents to the Court a false reality of the circumstances of their lives as a couple and as a family; corrects his misstatements; among other things she addressed the girls’ homeschooling in both her January 5, 2018, and January 29, 2018, declarations; reiterates some; father and she made a decision years ago that the girls would be homeschooled, primarily because they did not want them to attend La Patera Elementary School, the school in which he now wants to enroll them, midway through the school year, despite their ongoing homeschool curriculum; they have discussed that it may be appropriate to enroll the girls in a public school in the future, and she is certainly open to doing so at the beginning of the 2018-2019 school year; is not open to enrolling them in La Patera; plans to remain in her parents’ neighborhood after they move out, in large part because the school the girls would attend, Providencia Elementary School, is a very good school.

Mother’s Points and authorities

The Court has read them; points out that as mother has detailed in prior pleadings, the parties met in early 2005 when father was a client of hers at Impulse Hair Design, where she worked as a hairstylist; she became pregnant with Avery in August 2008 and married on January 8, 2009; marriage has been extremely tumultuous and has been defined by the illness and death of father’s mother due to ALS, Charlie’s battle with leukemia, father’s multiple DUIs and severe anger issues, as well as a prior period of separation; parties separated in September 2017; mother filed for divorce in October 2017.

Evidentiary objections to father’s declarations filed 3/6/18

Objection #1– Sustained

Objection #2 – Sustained

Objection #3 - Overruled

Objection #4 - Overruled

Objection #5 – Sustained

Objection #6– Sustained

Objection #7 – Sustained

Objection #8 – Sustained

Objection #9 – Sustained

Objection #10 – Sustained

Objection #11– Sustained

Objection #12 – Sustained

Objection #13 – Sustained

Objection #14 – Sustained

Objection #15– Sustained

Objection #16– Sustained

Objection #17– Sustained

Objection #18– Sustained

Objection #19– Sustained

Objection #20– Sustained

Objection #21– Sustained

Objection #22– Sustained

Objection #23– Sustained

Objection #24– Sustained

Objection #25– Sustained

Objection #26– Sustained

Objection #27– Sustained

Objection #28– Sustained

Objection #29– Sustained

Objection #30– Sustained

Reply Declaration of Mother filed 3/6

It is seven pages long and the Court will only summarize; she believes the primary matters of importance to be as follows: 1) All issues related to Charlie’s leukemia; 2) Issues related to the children’s schooling; 3) Substance abuse and mental health issues; and 4) Physical abuse. Father argues over things which are unrelated to these issues; orders the Court will make over the custody of Avery and Charlie will be unparalleled in significance by anything else in their lives moving forward; she continues to deny and dispute many of father’s false allegations; addresses only matters which directly impact the girls’ best interests.

Mother agrees to father’s proposal regarding Christmas and amends her initial proposal as follows: father will have the girls in even years and she will have them in odd years; agrees to remove parents’ birthdays from the holiday schedule; does not agree to his proposal regarding the children's birthdays; urges the Court to adopt her proposals on all other issues.

Reply Declaration of Father filed 3/6

It is 11 pages long; I have read it all but will only summarize; he acknowledges he has been convicted of driving under the influence twice in the past ten years; first was in 2009 after an argument with mother; second was in 2015, while mother, the girls, and he were coming home from an evening with friends; second arrest attributable to a gross miscalculation of the amount of alcohol he had consumed at the gathering; is not prone to getting drunk on a regular basis; has been without a license since the 2015 conviction; utilizes UBER, both alone and with the girls; anticipates having his license again by mid-March 2018; requests that the Court order mother to return the girls to his custody, that the Court award him sole legal and physical custody of both girls, with specific visitation to mother, as set forth in his RFO, that the Court limit mother’s visitation to the geographical areas set forth in his RFO, that mother be responsible for transporting the girls for her visitation, and that he be permitted to enroll the girls in public school in Goleta.

Declaration of Dr. Michael York in Support of Father’s Contentions

Filed 3/6/18; it is three pages long and the Court has read it all but summarizes; holds a degree in Psychology and has worked in the field in direct contact with developmentally disabled adults and schizophrenic patients; in Dr. York’s opinion, having kept in contact with father and observed him over the years, through his various encounters with adversity and through good times, father is a man of incredible character, strength and moral integrity; they have had many conversations where father has expressed his love for his wife and children, as well as his desire to remain a family; when he has visited father’s home, he has seen a loving, cared-for family.

Court’s Conclusions

The Court has weighed all the evidence submitted; thank you for the effort. The Court’s ruling pending trial are set out above.

 
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