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Derek Todd v. Sondra Hoffman

November 13, 2012

DEREK TODD, PLAINTIFF AND APPELLANT,
v.
SONDRA HOFFMAN, DEFENDANT AND RESPONDENT.



(Super. Ct. No. SDR36420)

The opinion of the court was delivered by: Robie , J.

Todd v. Hoffman CA3

NOT TO BE PUBLISHED

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

Father, Derek Todd, appeals from a court order denying his request to modify a prior custody and visitation order. Father raises numerous claims on appeal: (1) the trial court violated his right to exercise religious freedom by denying his request to have visitation on Christmas; (2) the trial court erred in refusing his requests for the child's phone number and school address; and (3) the trial court erred in "upholding" the court's prior order because it was issued by a judge who later disqualified himself. None of father's claims have merit. We affirm.

BACKGROUND

In May 2012, this court affirmed an order, entered on May 26, 2011, awarding mother Sondra Hoffman sole legal and physical custody of her then nine-year-old daughter and providing father with limited, supervised visitation. (Todd v. Hoffman (May 22, 2012, C068867) [nonpub. opn.].)

In September 2011, while the prior appeal was pending, father sought an order to show cause seeking modification of the May 26, 2011, custody order. Specifically, father sought "sole legal custody, primary custody and Christmas visitation with child." In support of his request, father stated he wanted unsupervised visitation with the child at Christmas "because it is a religiously significant holiday. The child enjoys celebrating Christmas with [father], and [mother] does not celebrate."

The trial court heard father's request on December 13, 2011. Father appeared by telephone without counsel; mother made no appearance. Father argued he could not afford supervision for the visits with the child and noted mother did not celebrate Christmas because she is a Jehovah's Witness. Father made two additional requests on the record that he did not include in his written request for an order to show cause. Father asked the court to provide him with mother's home phone number and the address for the child's current elementary school. The court took the matter under submission.

The following day the trial court issued its written ruling. The court found "[father]'s current OSC supplies virtually no grounds upon which to modify the court's final decision [regarding child custody and visitation], and as such, the request for modification must be denied." The court also found father's request for unsupervised visitation at Christmas to be "similarly unsupported by any material facts. . . . [Father] cites no facts demonstrating a change of circumstances that would justify a change in that order." The court thus denied father's request. Father appeals from that order. Mother has not filed a brief in response.

DISCUSSION

Father first contends the trial court violated his right to exercise his religious beliefs by refusing to allow him unsupervised visitation with the minor child at Christmas. Father's contention is without merit.*fn1

Father has a right to practice his religion and discuss his religious beliefs with his daughter if and when he has contact with her, his freedom of religion, however, does not extend to a constitutional right to have contact with his child. (See In re Marriage of Weiss (1996) 42 Cal.App.4th 106, 118, citing Zummo v. Zummo (1990) 574 A.2d 1130, 1148 ["'parent's religious freedom may yield to other compelling interests'"] italics omitted.) The state has a compelling interest in the welfare of the child, and the court's order in this case was consistent with the state's interest.

Father also contends the trial court violated his right to have frequent and continuing contact with his daughter under Family Code section 3020, subdivision (b), by refusing his request for the child's home phone number, and violated his right to obtain educational information regarding his daughter by refusing his request for the child's school address. Father, ...


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