Alcantara v. Cepeda

Opinion

IN THE SUPERIOR COURT OF GUAM 2

3 RA YNOLD CRUZ ALCANTARA, ) 4 ) Plaintiff, ) 5 v. ) DECISION AND ORDER ) Re: Child Custody 6 BETSY CEPEDA, ) 7 ) ) 8 Defendant. ) ---------------------------- 9

IO INTRODUCTION

11 This matter came before the Honorable Judge Michael J. Bordallo on June 28, 2012. 12 The Plaintiff was represented by Phillip Torres, ESQ. The Defendant was represented by 13 Jeffrey A. Cook, Esq. After considering the matter presented, the Court now issues the 14 following decision and order. 15

16 BACKGROUND

17 The matter arises out an Ex Parte Motion filed by Defendant Betsy Cepeda ("Cepeda") 18 on June 7, 2012, for an Order to Show Cause seeking a temporary restraining order and 19 requesting modification of the Stipulated Judgment filed August 16, 2007. The same day, 20

21 Cepeda filed a Memorandum of Points and Authorities supporting the Motion to Modify. In the

22 Memorandum, Cepeda first alleges that since the Stipulated Judgment filed August 16, 2007 23 neither Cepeda nor the Plaintiff, Raynold Cruz Alcantara ("Alcantara"), have followed the 24 custody order requiring the alternating yearly physical custody of his daughter, Xiomara Rae C. 25 Alcantara ("Xiomara"). Cepeda also alleges, although she and her daughters have been living 26

27 on Guam, Alcantara has not shown a great deal of interest in his daughter. Cepeda asserts

28 Alcantara has never spent more than a weekend with his daughter.

Page I of4 Because Cepeda is moving off island to join her spouse in South Carolina, she urges th 2 Court to modify the Stipulated Judgment so she would continue to have primary custody 0 3 Xiomara and discontinue the alternating yearly physical custody. Cepeda also suggests an optio 4 l wherein Alcantara would have custody of Xi omara during alternating Christmas's and summers 5

6 Shortly after the Ex Parte Motion was filed, the Alcantara filed his motion in oppositio

7 of the Court modifying the Stipulated Judgment. Alcantara argues Cepeda misrepresents hi 8 relationship with his daughter and believes he is able to provide emotional, physical an 9 financial support for his daughter. Alcantara also asserts when the Stipulated Judgment wa 10

11 executed both parties were aware of the possibility Cepeda might move off island; therefore

12 Cepeda moving off island is not a change in circumstance and the Stipulated Judgment shoul 13 not be modified. Alcantara also asserts he would like all three (3) daughters to be in included i 14 the yearly visitation even though he is not the biological father of the eldest daughter. 15 DISCUSSION 16

17 Child Custody

18 Under Guam law, a Court may modify a custody arrangement whenever "the best

19 interest of the child require or justify such modification." Title 19 GCA § 8404(f) (1994). The 20 Supreme Court of Guam has previously noted, "Title 19 of the Guam Code Annotated, read as 21 a whole, reflects the legislature's underlying policy that whenever possible, the sanctity of 22 family life should be preserved by the inclusion of both parents in the lives of their children." 23

24 ld. at ~ 10. However, the purpose of a custody hearing is to determine the best interest of the

25 child not that of the parents. Flores v Cruz, 1998 Guam 30 ~ 23. 26

27 1 During the prior hearing (June 28, 2012), Cepeda stated she would not mind all three daughters visiting with 28 Alcantara during the summer.

Page 2 of4 In custody modification cases, when a party attempts to modify a "considered decree," he 2 or she bears the heavy burden of proving that the continuation of present custody is so 3 deleterious to the child as to justify a modification of the custody decree, or of proving by clear 4 and convincing evidence that the harm likely to be caused by a change of environment is 5

6 substantially outweighed by its advantages to the child. Sandoval v. Sandoval, 832 So. 2d 1221,

7 1223 (La. App. 3d Cir. 2002) (Citing to Bergeron v. Bergeron, 492 So.2d 1193 (La.1986)). 8 However, joint custody does not require that each parent have equal time with the child, but that 9 each party has substantial time with the child. Lanser v Lanser, 2003 Guam 14 ~ 13. (Citing to 10

Sandoval v. Sandoval, 832 So. 2d 1221, 1223 (La. App. 3d Cir. 2002)).

12 In the instant case, both parties want to modify the stipulated judgment. Thus, neither 13 party bears the burden of proof as to justifying the modification. Alcantra submits to include 14 Caitlyn in the alternating year visitation. Alcantra only agreed to sole, legal, and physical 15 custody to Cepeda upon premise that David D. Pedreira, the fiance, was going to adopt Caitlyn. 16

17 However, since no adoption has been processed and it has been 5 years since the Stipulated

18 Judgment, Alcantra seeks to modify the custody agreement for Caitlyn as well. Cepeda argues 19 that the girls should be together, unless this Court grants custody of Xiamara to Alcantra. 20 On August 16, 2007 both parties stipulated to a judgment, which details the terms of 21 custody arrangement. As of this writing, neither party has complied with the terms of the 22

23 custody agreement. Item 2 explicitly states "the parties shall alternate custody each year

24 thereafter until Xiamara Rae C. Alcantara is old enough to decide which parent she wishes to 25 stay with during the school year." However, since Cepeda returned back to Guam in 2008, the 26 terms of the custody agreement never went into effect and Cepeda has maintained primary 27

28 custody of both children, Xiamara and Caitlyn, since 2007.

Page 3 of4 The Court finds it is in the children's best inter sts that the stipulated custody order be 2 vacated and modified. It is in the best interest of the children to remain together and have both 3 parents in their lives. Alcantra is to have custody ofXiamara and Caitlyn for th summer of 4

5 2012. Cepeda is to have custody of Xiamara and aitlyn for the school year 2012 till 2013.

6 Accordingly, each party Will aItemateyearly physical ustody of Xiamara and aitlyn on July 7 30th of every year. 8 With respect to the defendant's eldest daughter, this Court finds that it cannot order her 9 to be part of the custody order in this case. The Court recognizes both parties' willingne s and 10

II d ire to keep all the children togeth r when custody changes next year. However, the ourt

12 leave that decision to th defendant and her daughter. The matter before th court is limited to 13 the two daughters of the parties. 14

5 day of _ ~ 20 12. 15 o ORDERED, this 16

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