Do San Luis Obispo County family court judges know the law?

August 21, 2024

By KAREN VELIE

In the San Luis Obispo County Courthouse, where families’ futures hang in the balance, several judges entrusted with the power to shape the lives of parents and children either did not fully understand or did not feel the need to properly apply laws they are meant to uphold.

An appellate court recently found that Judge Matthew Guerrero applied the wrong legal standard in a family law case, prompting the higher court to question if he correctly understood and properly applied the law.

The case involves a father, identified only as Jim to protect his privacy, who was seeking changes in visitation with his child born in 2018. The mother, identified as Val, has full custody.

In June 2021, Judge Ginger Garrett provided Jim a pathway to visitation that included entering a drug treatment program and providing random drug testing results along with psychological records. The judge also suggested Jim approach county mental health with a copy of the June 2021 order to obtain a psychiatric examination in order to show changed circumstances – an inaccurate legal standard.

Jim, a full-time student at UC Berkeley, filed a request to modify Judge Garrett’s visitation order in May 2022, after which Judge Guerrero was assigned the case.

Jim represented himself in court proceedings. He informed the court he had completed the pathway set out by Judge Garrett. He attended a 90-day inpatient treatment program, during which he was randomly drug tested three to four times a week, breathalyzed daily, and attended daily AA meetings.

Val’s attorney Christopher Duenow argued that Jim needed to show “changed circumstances,” at a Sept. 2022 hearing. Duenow, however, applied the wrong legal standard for visitation modification. Legal professionals note that this error is akin to a veteran driver confusing the brake pedal with the gas pedal.

During the same hearing, Judge Guerrero complimented Jim on his recovery efforts and asked him to bring evidence of his treatment program to the next hearing.

Jim filed evidence of negative drug tests, psychological records from Ventura Recovery Center, and documentation of enrollment with Ventura County Behavioral Health, with the court in early Dec. 2022.

At a review hearing on Dec. 15, 2022, Judge Guerrero stated he had “not found a significant change in circumstances to warrant a custody change.”

Unable to afford legal counsel, Jim wrote his own appeal. He argued that Judge Guerrero abused his discretion, erred when he refused to allow expert testimony and evidence of his recovery, and applied the wrong standard for modification of visitation.

The appellate court ruled in favor of Jim. It determined Jim had “substantially complied” with Judge Guerrero’s directives to provide evidence of his recovery, according to the July 17 California’s Second District Court of Appeal ruling.

In addition, the appellate court determined Judge Guerrero, Judge Garrett and attorney Duenow had all applied the wrong standard. The legal standard for modification of visitation is the best interest of the child.

“The court applied the wrong standard,” according to the appellate court. “At the hearing, [Guerrero] stated: ‘I have not found a significant change in circumstances to warrant a custody change.’ However, the father was not seeking a custody change. He requested modification of the visitation order to allow supervised and Zoom visitation.”

The appellate judges added, “In light of the court’s express invocation of the incorrect standard, we are unable to presume it knew and properly applied the law. We cannot conclude the error was harmless.”

As a result of the appeal, Jim’s request for modification of visitation has been remanded back to San Luis Obispo County Superior Court, to be considered under the best interest of the child standard.

This case highlights the importance of applying the correct legal standards in custody and visitation cases. It also underscores the challenges faced by individuals who represent themselves in court proceedings, particularly when legal professionals misapply fundamental principles of family law.

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