Filed 1/23/15 Modified and Certified for Publication 2/9/15 (order attached)
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICTs
DIVISION THREE
ANDREW V., G051310
Petitioner, (Super. Ct. 04D009068)
v. OPINION
THE SUPERIOR COURT OF ORANGE
COUNTY,
Respondent;
JESSICA V.,
Real Party in Interest.
Original proceedings; petition for a writ of mandate to challenge an order of
the Superior Court of Orange County, Carla M. Singer, Judge. Stay issued. Petition
granted.
Law Office of Diane Vargas and Diane Vargas for Petitioner.
No appearance for Respondent.
Law Office of Ronald B. Funk and Ronald B. Funk for Real Party in
Interest.
* * *
THE COURT:*
In this child custody dispute following a final custody determination, we
issue a peremptory writ in the first instance because respondent court has improperly
deprived petitioner of an opportunity to be meaningfully heard before granting real
party’s move-away request to take the two minor children from the State of California to
the State of Washington.
A meaningful hearing is a critical requirement of California law before any
judicial determination regarding an out-of-state move-away request for parents who, as
here, share joint legal and physical custody following a final judicial custody order.
These essential procedural safeguards cannot be evaded merely because respondent court
labels its order as “interim,” “nonappealable,” “temporary,” and “without prejudice.”
I
Petitioner Andrew V. (Father) has filed a petition for writ of mandate /
prohibition and a request for an immediate stay of respondent court’s “temporary” move-
away order of January 14, 2015. Real party Jessica V. (Mother) opposes the petition and
stay request, and already has moved out-of-state with the minor children.
Father and Mother were married in 2003 and have two children, a girl, born
in December 2002, and a boy, born in November 2005. They permanently separated in
2006 and a judgment of dissolution was finalized in June 2008. The judgment of
dissolution provided for Father and Mother to share joint legal and physical custody.
In July 2014, Mother filed a request for an order allowing her to move
away with the two minor children to the State of Washington due to a job transfer and
promotion. Father opposed the move-away request. Father claims that he has a
40 percent timeshare of shared custody; Mother computes his timeshare percentage to be
35 percent.
*
Before Aronson, Acting, P. J., Ikola, J., and Thompson, J.
2
In August 2014, a stipulation and order for a full child custody
investigation was made. The child custody investigator completed her child custody
investigation report on December 22, 2014, and respondent court scheduled a hearing on
January 14, 2015.
According to the transcript and minute order, the child custody investigator
was not available to testify at the January 14, 2015 hearing. Respondent court recognized
that Father’s counsel had a right to cross-examine the child custody investigator, and the
court further acknowledged that Father’s counsel was physically unable to represent
Father at the hearing because of counsel’s illness. As a result, respondent court continued
the hearing on Mother’s move-away request until March 4, 2015.
Despite this, respondent court issued a “temporary” move-away order
allowing Mother to relocate with the minor children to the State of Washington based
upon the written recommendations of the child custody investigator. “And at this point in
time without the benefit of a cross-examination of the child custody investigator, without
hearing from [Father] or [Father’s] counsel, I have serious concerns about action that
would be contra to the [investigator’s] recommendation, because as I was reading the
report, I anticipated the recommendation. Be that as it may, I’m not close-minded on any
issue, but I do think it would be in the better interest of the children that they move now
and that we resolve this later.”
At the hearing, Father’s counsel requested that respondent court recognize
the 30-day automatic stay for move-away orders in Code of Civil Procedure section
917.7. Mother’s counsel argued the statute only applies to appeals or final orders, “and
this is not a final order.” After reviewing the statute, respondent court declined to
recognize the automatic stay. “That’s correct. That was the way I read it as well.”
On January 20, 2015, Father filed a petition for writ of mandate and a
request for an immediate stay. On the same day, we issued a Palma notice, requesting
opposition from Mother and informing her that we were considering issuing a peremptory
3
writ in the first instance. (Palma v. U.S. Industrial Fasteners, Inc. (1984) 36 Cal.3d 171,
179 (Palma).) Mother filed a timely opposition. At our request, Father filed a copy of
the confidential child custody evaluation under seal, as well as a supplemental letter brief
addressing our concerns regarding the current status quo of the children’s whereabouts
and schooling arrangements.
Father’s counsel states that Mother “disenrolled the minor children from
their school and two days later moved with the children to Seattle, Washington.”
Mother’s counsel has informed us that she intends to enroll one of the children at a new
school on January 23, 2015; the other child is due to start a new school on January 26,
2015.
II
Respondent court erred in construing California law to allow for a
“temporary” move-away first and a hearing later. A full adversarial hearing must
precede, not follow, any out-of-state move-away order, however denominated. (In re
Marriage of Seagondollar (2006) 139 Cal.App.4th 1116 (Seagondollar).)
Adherence to fundamental procedural safeguards is critical in move-away
situations, which are among “‘the most serious decisions a family law court is required to
make,’ and should not be made ‘in haste.’” (Seagondollar, supra, 139 Cal.App.4th at
p. 1119.) These steps are necessary to facilitate the strong public policy favoring stable
custody arrangements between parents who share joint legal and physical custody. (Id. at
pp. 1119-1120.)
In such cases, where one of two parents sharing joint physical custody
seeks to relocate with the minor children, “the court ‘must determine de novo what
arrangement for primary custody is in the best interest of the minor children.” (In re
Marriage of LaMusga (2004) 32 Cal.4th 1072, 1089, fn. 3.) The best interests of the
children require that the parents’ competing claims be heard in a calm, dispassionate
matter, with adequate time to marshal and present evidence.
4
In her informal response to the writ petition, Mother claims that she “has
been [the children’s] primary custodial parent . . . .” Whether the parents share “genuine”
joint physical custody is a matter to be determined by respondent court at a full and fair
hearing. (See Hogoboom & King, Cal. Practice Guide: Family Law (The Rutter Group
2014) ¶¶ 7:573, 7:574, pp. 7-241 to 7-242.3.)
We cannot say, as Mother’s counsel so blithely asserts, that “it is more
likely than not that the hearing will result in an order consistent with the [investigator’s]
recommendation . . . .” To the contrary, respondent court itself expressed its willingness
to “remain open-minded, and I’m certainly interested in hearing what the child custody
investigator has to say.” “I do not think that it would be detrimental to the children if in
fact the court reverses that order or issues a final order which is then appealable to return
the children to Southern California if the court is persuaded that that should be done.”
We cannot sanction such a de facto move-away. As we stated in
Seagondollar, “[t]he rules of procedure for reaching family law decisions — contained in
the Family Code, the Code of Civil Procedure, the California Rules of Court, and local
court rules — are not mere suggestions. The rules of procedure are commands which
ensure fairness by their enforcement.” (Seagondollar, supra, 139 Cal.App.4th at
p. 1120.)
In her informal response, Mother further urges we consider the allegation
Father engaged in some unspecified acts of domestic violence involving Mother’s new
husband. We note that Mother did not raise this argument in connection with the move-
away order below, and makes no attempt to expand upon or explain it here. The issue is
not properly before us. (See discussion in Keith R. v. Superior Court (2009)
174 Cal.App.4th 1047, 1056 (Keith R.) [addressing the “temptation to misuse domestic
violence orders for tactical reasons”].)
5
III
Respondent court has compounded its error by refusing to recognize the
mandatory automatic 30 calendar day stay afforded by Code of Code of Civil Procedure
section 917.7. The statute provides, in pertinent part: “[I]n the absence of a writ or order
of a reviewing court providing otherwise, the provisions of the judgment or order
allowing, or eliminating restrictions against, removal of the minor child from the state are
stayed by operation of law . . . for a period of 30 calendar days from the entry of
judgment or order by any other trial court.”
As a result, even were respondent court to issue a move-away order
following the March 4, 2015 hearing, any such order would be subject to an automatic
stay for an additional 30 calendar days pursuant to Code of Civil Procedure section 917.7.
Respondent court operates under the misapprehension that the above
procedural and substantive safeguards, including the automatic stay, do not apply to
“temporary” or “interim” move-away orders. “But any order I make today would be a
temporary order clearly made without prejudice subject to change.”
There is no such exemption simply because the order is denominated as
“temporary.” Temporary orders may have equally serious implications inasmuch as they
alter the status quo and affect the children’s interests in stability and continuity. Children
live in the present tense, and “temporary” relocations may have a severe and pernicious
impact on their well-being and sense of security.
For this reason, we reject Mother’s argument that the automatic stay in
Code of Civil Procedure section 917.7 only applies to appealable judgments and orders,
not to an interlocutory, temporary order that is made without prejudice. There is nothing
in the above-quoted language in section 917.7 that makes such a distinction, and
Mother’s interpretation would subvert the clear policy purposes underlying the automatic
stay, as well as the procedural safeguards for meaningful hearings on move-away orders.
6
We decline to exercise our discretion under Code of Civil Procedure
section 917.7 to lift or modify the automatic stay. The final custody order calls for the
parents to have joint legal and physical custody. Without any meaningful hearing, the
trial court has modified this final custody order based upon its reading of the written child
custody investigator’s report and recommendations, treating such recommendations as
presumptively valid unless otherwise disproven.
IV
A peremptory writ in the first instance is proper to resolve “this purely legal
dispute in an area where the issues of law are well-settled. . . . There is a particular need
to accelerate the writ process in child custody disputes where children grow up quickly
and have immediate needs.” (Keith R., supra, at p. 1057; see also Code Civ. Proc.,
§ 1088.) We have solicited, received and considered Mother’s opposition on the merits
of Father’s writ petition and gave notice that if the circumstances so warranted, we might
issue a peremptory writ in the first instance. (Palma, supra, 36 Cal.3d at p. 180.)
Because respondent court deprived Father of the opportunity to be meaningfully heard on
Mother’s move-away request according to the correct legal standard, the matter requires
accelerated review and decision. (Code Civ. Proc., § 1088; see Lewis v. Superior Court
(1999) 19 Cal.4th 1232, 1259-1260.)
DISPOSITION
Father’s request for a stay of respondent court’s “temporary” move-away
order is granted. The stay order is effective immediately upon the filing of this opinion.
Accordingly, the children shall be returned to the State of California forthwith, and
respondent court has the power and the authority to issue any necessary orders to
effectuate this stay.
Let a peremptory writ of mandate in the first instance issue directing
respondent court to vacate its order of January 14, 2015 to the extent it may be construed
as granting Mother temporary permission to move away to the state of Washington with
7
the minor children. The writ shall be without prejudice to the parties’ right to petition
respondent court for any appropriate custody or visitation arrangements in accordance
with California law. The stay order shall be dissolved upon the finality of this opinion as
to this court.
8
Filed 2/9/15
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION THREE
ANDREW V.,
Petitioner,
v. G051310
THE SUPERIOR COURT OF ORANGE (Super. Ct. 04D009068)
COUNTY,
ORDER GRANTING REQUEST
Respondent; FOR PUBLICATION;
MODIFICATION OF OPINION;
JESSICA V., NO CHANGE IN JUDGMENT
Real Party in Interest.
THE COURT:*
Retired Los Angeles Superior Court Commissioner Keith M. Clemens has
requested that our opinion, filed on January 23, 2015, be certified for publication. It
appears that our opinion meets the standards set forth in California Rules of Court, rule
8.1105(c). The request is GRANTED.
This opinion is ordered published in the Official Reports, with the following
modification: On page 8, line 4, add the following sentence: “Petitioner shall recover
costs in this original proceeding. (Cal. Rules of Court, rule 8.493(a)(1)(A).)”
This modification does not change the judgment.
___________________________
ARONSON, ACTING P. J.
* Before Aronson, Acting P.J., Ikola, J., and Thompson, J.