HEARING BRIEF.

MARIA SOTO

[address]

IN THE SUPERIOR COURT OF TULARE COUNTY

IN THE STATE OF CALIFORNIA

COUNTY OF TULARE,

Petitioner,

vs.

DAVID LUNA,

Respondent,

vs.

MARIA SOTO,

Other Party.

Case No.: VFS081470

OTHER PARTY’S CONTESTED HEARING BRIEF.

Hearing Date:

Time:

Department:

INTRODUCTION

1. It is the Mother’s position that each Party (Mother and Father) is entitled to parental and custodial rights with regards to their children. The extent of such rights should be granted taking into consideration the facts of each case. In this case, the Father has been granted expansion of rights to the extent of weekly visitation. This is pursuant to the order of November 23^rd, 2020. However, it must be noted that the father has not been a strong presence in the lives of the children since February 2015 to around August 2020. The Father has also on various occasions failed to comply with the binding terms of the court order granting him visitation rights with the children. The Mother, MARIA SOTO, hereby submits this Contested Hearing Brief.

STATISTICAL INFORMATION

• Father and mother are biological parents to three children; JERRY DANIEL SOTO, a male child born on May 25^th, 2009, MICHAEL YNES LUNA, a male child born on January 1^st, 2012 and EMMA HALEY LUNA, a female child born on July 31^st, 2014.

PROCEDURAL HISTORY

• On or about July 10, 2015, a Court Order was issued granting the Mother sole custody of the children and the Father having visitation rights at the discretion of the Mother.
• On or about June 24, 2020, Father filed a Request for Order requesting a modification of child custody and visitation and child support. The hearing was set for August 10, 2020.
• On or about August 10, 2020, the Court issued orders directing that primary custody remain with the Mother. The further ordered that Father have visitation every other weekend from Friday at 3:00pm to Sunday at 7:00 pm. The Court directed the parties attend a mediation session scheduled for October 1, 2020.
• On or about October 28, 2020, the Parties attended a mediation session. The session was unsuccessful as the parties were not able to reach an agreement. Nonetheless, the mediator submitted their report with recommendations that the Father have visitation on the 1^st, 3^rd and 4^th weekends of each month from Friday at 3:00pm to Sunday at 7:00 pm.
• On or about November 13, 2020, the Court issued orders directing that the Parties share joint legal custody and physical custody of the minor children. Father to have visitation on 1^st, 3^rd and 4^th weekends of the month from Friday at 3:00 pm to Sunday at 7:00pm. The Court further directed the Father shall have visitation each week from Monday at 8:45pm until Thursday at 8:00 am.
• On or about November 13, 2020, Mother requested contested hearing which the Court set for February 22, 2021.
• On March, 8^th, 2021, Mother filed her declaration and Father filed his responsive declaration.

STATEMENT OF FACTS

Father Abandons Mother and Children

1. The Mother and Father were involved in a relationship spanning several years. Evident of this relationship, the Mother and Father were blessed with three children born in the year 2009, 2012 and 2015.
2. Unfortunately, sometimes in February 2015, the father knowingly and willingly abandoned the mother and their three children, with the youngest child been the age of 7 months old.
3. During his absence, the father engaged in multiple romantic affairs while the mother committed herself to raising the children.
4. On or about July 10^th, 2015, the Court issued orders directing that the mother have primary custody of the children. The Court further ordered that the father have visitation rights at the Mother’s discretion, which discretion was to be reasonably exercised.
5. Since the orders of July 10^th, 2015, the Father never once challenged the orders as delivered by the Court, and the Mother and Father maintained good relations.
6. Nonetheless, following the order of July 10^th, 2015, the Father’s presence continued to be irregular as he would suddenly make an appearance after long periods of silence. Furthermore, during the period of absence, the Father neglected his responsibilities and contributed mere total of $400 towards child support.
7. As time went by, the Mother engaged in a romantic relationship with David Weinberger, her current boyfriend who has now taken up a fatherly role with the children.
8. Upon learning about the Mother’s romantic relationship, the Father began to take an active role in the lives of the Mother, her boyfriend and the children. However, this role was less positive and more destructive as conflicts would arise between the parties whenever the Father was present.
9. These conflicts were not only instigated by the Father, but also by mutual friends of the Mother and Father.
10. Matters escalated to the point of the Father instituting legal proceedings against the mother for legal custody of the children, whereas the same was never a consideration during his absence and prior to the mother being in a relationship.
11. Owing to the actions of the Father, the Mother is constrained to construe the Father’s actions to be retaliatory, and not focused on the best interest of the children.

Child Support

• Pursuant to the California Family Code § 3900, the parents of any child are imposed with equal responsibility for the welfare and maintenance of the child. This provision looks out for the best interest of the child, whether the parents are together or separated.
• In the present case, Pursuant to the Court order of July 10^th, 2015, the Mother was granted primary custody of the children. Consequently, the Father was equally required to provide his share of maintenance for the children through payment of monthly child support.
• The mother took up responsibility of providing for the needs of the children. Since the year 2015, the children have been housed, fed, clothed and educated to best possible standard, through the efforts of the Mother.
• The Father on the other hand contributed an approximate total of $400 towards child support. This amount accounts for contributions made by the Father since the year 2015.
• The Father truly abandoned the Mother and the children as he equally failed to provide adequate child support to cover the needs of the children as from July 2015 to date. The Father showed little concern for the best interest of the children.
• As stated above, the Father only contributed an approximate total of $400 towards child support. This notwithstanding the fact that the Father had moved from being employed as a clerk at a supermarket, to employment as a correctional officer earning a substantially increased annual income.
• The Father equally violated the provision of the California Family Code §§ 4053 and 4058, which require each parent to make earnest disclosure of their annual income. The Father failed to submit a declaration demonstrating the true and accurate annual income earned by the him.
• This intentional concealment of annual income coupled together with the meager child support contribution, alludes to inference of the fact that the Father had no shred of concern for the best interest of the children.

Frustration and Violation of Court Orders

• Following expansion of the Father’s parental rights and responsibilities, the Father has purported to exercise this right in accordance with the Court Order. However, the Mother has noted reasons for concern regarding the conduct of the Father.
• The Court Order requires that both parents are bound by its terms. No Party may override the Court’s Order without prior permission obtained from the court.
• Failure to adhere to the Court Ordered parental plan warrants that the breaching Party should be subject to civil and criminal action against him for his blatant violation of the Order.
• Contrary to the terms of the Court Ordered parental plan, the Father has deliberately exposed the children to an unsafe and potentially dangerous environment by Coordinating multiple “get-togethers” with a court-ordered restrained party. The get-togethers have taken occurred while the children were residing with the Father.
• The Father is well aware of court ordered restraining order, yet he wilfully and knowingly exposes the children to unnecessary risk of danger. The Mother has perpetually expressed to the Father her dissatisfaction with the continued violations. Nevertheless, the Father’s response has been very dismissive.
• Such violation and exposure of the children to an unsafe environment, amounts to contempt pursuant to California Code of Civil Procedure 1218(c).
• Equal to the foregoing, the Father has not performed his duties to the extent required of him in so far as the education of the children is concerned.
• The Father, through his Attorney, advocated for expansion of parental rights and responsibility. In pursuit of such expansion, the Father assured the court that he shall assume full responsibility of the children during visitation periods.
• Despite the above, Father has not ensured completion of school assignments and has left it upon the mother to see to the fulfillment of that responsibility.
• The mother has on occasion been contacted by teachers alleging that the children have not submitted their homework assignments. These complaints have coincided with the Father’s visitation period. 
• Furthermore, the Father has misplaced homework on several occasions, forcing the mother to take up the responsibility of schoolwork, and pick-ups and returns of children’s books to school, which is currently closer in proximity to father than mother (Visalia, CA).
• The Father has demonstrated to that he is not ready to assume this level of responsibility and care for the children
• Once again and in addition to the foregoing, the Father has demonstrated a lack of responsibility and duty of care for the children. The Father has demonstrated that his priority is not the best interest of the children, but his own self interests.

Counselor’s Report

• On June 24^th, 2020, the Father opted to file a Request for Order requesting that the Court review the Orders of July 10^th 2015, seeking to see his parental rights and responsibilities expanded.
• On October 8^th, 2020, the Court issued orders granting the Father visitations rights on alternating weekends, but maintained that the Mother shall continue to have primary legal and physical custody of the children. The Court further directed the Parties attend a mediation session to attempt to settle the matter of parental rights and responsibilities.
• On October 28^th, 2020, the Parties attended a Child Custody Recommending Counseling (CCRC). Though the mediation session was not successful, the Parties were able to agree on few issues which the Counselor included in their report and recommendations to the Court.
• The Counselor’s report indicates the Parents mutually agreed on the following issues: –
  • Communication between the Mother and Father shall take place through the TalkingParents website.
  • Parents shall respond to communication within a 24-hour period.
  • Visitation exchange location is maintained at the Visalia Police Department.
  • Neither Parent to exit their respective vehicle during the visitation exchange.
• The Counselor further took into account the history and performance of the Parents with regard to the children and issued the following recommendations: –
  • The Counselor noted with concern that the Father not once since July 2015, sought to challenge the orders of the court with regard to custody and parental rights and responsibilities. Furthermore, the Counselor was concerned with the irregular exercise of visitation rights by the Father prior to August 14^th, 2020. As such, the Counselor recommended that: –
    • Parents continue to share joint custody and the Mother maintain primary physical custody of the children.
    • Father’s visitation be maintained on alternative weekends for the next three months before adding an additional month. (The rationale being that this will allow the children to become accustomed to spending consistent ongoing time with their Father.)
• Despite the recommendations above, on November 13^th, 2020, the Court issued orders granting the Father an additional weekend i.e. the first, third and fourth weekend of every month from Friday at 3:00pm to Sunday @ 7:00pm. The court further issued that as of December 21^st, 2020, the Father shall reside with the Father from Monday 8:45pm to Thursday at 8:00pm.

CONCLUSION

• Contrary to California Family Code § 3100, the father has failed to demonstrate that expansion of his visitation right is in the best interest of the children.
• The Father failed to perform his responsibilities, and equally failed to disclose clear and accurate information to the court or any other supervising authority of the events regarding his employment and increased monthly income, yet now he comes to claim a lion’s share of the parental rights and custody.
• The Mother contends the Father’s request and request the court to review the orders issued on November 23^rd, 2020. It is prudent that the Father first demonstrate he can exercise reasonable responsibility of the children prior to the Court expanding his rights as was so done on November 23^rd, 2020. In such pursuit, the Mother requests for orders as highlighted below.

MOTHER’S REQUEST FOR ORDERS

• The court review the Orders issued on November 23^rd, 2020 to reflect the orders of July 10^th, 2015 and pursuant to the Contested Report – Child Custody and Visitation, in that  the Father be granted temporary visitation on alternative weekends from Friday at 3:00pm until Sunday at 7:00pm.
• The exchange locations to be made at the TULARE POLICE STATION, which is the city of the Resident Parent. Children to be exchanged from Friday night to Sunday evening not to exceed 8:00pm as children have school next day.
• Party’s significant others may drive the children to facilitate the exchange.
• That mother maintains full legal and physical custody of the children and father only be granted visitation as per above and holidays as stipulated in the mediation proposal.
• Father shall not bring children near ANY restrained party or near Aurelia Rocha and/or Ernest Rocha, as the two also permit a restrained party near children.
• Children be permitted to attend school IN-PERSON in the city of TULARE, being this is the city of the resident party.

Dated:  ____________________

Respectfully submitted,

By:___________________________

MARIA A SOTO,

Pro Se

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