Filed 6/5/15 Certified for Publication 6/16/15 (order attached)
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION THREE
JANE J., G051603
Petitioner, (Super. Ct. No. 14FL000058)
v. OPINION
THE SUPERIOR COURT OF ORANGE
COUNTY,
Respondent;
CHRISTOPHER J.,
Real Party in Interest.
Original proceedings; petition for a writ of mandate to challenge an order of
the Superior Court of Orange County, Debra C. Carrillo, Judge. Petition granted.
Law Offices of Marjorie G. Fuller and Marjorie G. Fuller for Petitioner.
No appearance for Respondent.
Hagan & Associates, Cara J. Hagan and Shannon C. Williams for Real
Party in Interest.
* * *
1
THE COURT:*
I
INTRODUCTION
We issue a peremptory writ in the first instance because respondent court
erroneously issued a modification order changing custody to the noncustodial parent,
thereby requiring the minor children to move in the middle of the school year from their
California home to the noncustodial parent‟s home in Alabama. Respondent court
abused its discretion by failing to consider the relevant factors, including the children‟s
existing educational, physical, emotional and familial relationships with the custodial
parent, and whether an out-of-state move-away would detrimentally affect their interests
in continuity and stability.
II
STATEMENT OF FACTS AND PROCEDURAL HISTORY
Petitioner Jane J. (Mother) and real party Christopher J. (Father) are the
parents of two boys, an older son, born in the fall of 2002, and a younger boy, born in
January 2006.
The couple separated in 2006 and divorced in October 2009. At the time of
the divorce, Mother lived in Wisconsin, with the two children. Father was an active duty
pilot in the military, stationed in Hawaii.
Mother and Father agreed to a marital settlement, which was approved by a
Wisconsin family court commissioner. The parents agreed to joint legal custody, but
because of the family‟s “unique” situation, Mother was given 92 percent primary
physical custody, with Father having 8 percent physical custody.
The agreement specifically recited that Father‟s military duties in Hawaii
made “visitations with the boys limited and difficult,” stressing the need “to exercise
*
Before Aronson, Acting P. J., Ikola, J., and Thompson, J.
2
flexibility as much as we are able.” “If [Father] has an opportunity to spend more time
with the boys, it is encouraged. [Mother] will be as flexible as she is able at the time of
the occurrence(s) enabling [Father] to spend more time with the boys.”
The marital settlement agreement was signed by the Wisconsin family court
commissioner and filed with the La Crosse County circuit court on October 22, 2009. As
subsequently recited by the Wisconsin family court commissioner, “[t]he Parenting Plan
was Father‟s plan and was signed by Mother.”
Following the dissolution, Father was deployed in a medevac unit in Iraq
and Afghanistan. Father‟s military assignments, including the three deployments to
active military duty in the Middle East, “made it difficult for me to have the boys for their
full summer breaks and only allowed me to have them when I was on vacation.” Time
differences and Father‟s military schedule combined to hamper his ability even to directly
communicate with them.
In 2012, Mother and the children moved from Wisconsin to Orange
County, where Mother was living with her fiancé. The Wisconsin court held a hearing
and approved Mother‟s move-away.
Father returned to the United States and received transfer orders to Fort
Rucker in Alabama. Newly remarried, he relocated there in December 2013.
In January 2014, Father registered the October 2009 Wisconsin custody
order in California. In April 2014, he filed a request for order (RFO) to modify the 2009
Wisconsin custody order, either to increase visitation, or to give him primary physical
custody over the boys. He also sought to modify the support amounts.
Mother opposed Father‟s RFO. She highlighted her “serious
disagreements” with him concerning the children‟s future medical treatment and exact
custody schedule, but asserted that she “does not have an issue working with [Father]
regarding child custody and visitation.”
3
The parties stipulated for Father to have summer visitation with the
children on two separate occasions in the summer of 2014, and to enroll in Family
Wizard for e-mail communication, and to attend mediation to work out a visitation
schedule for the holidays. According to Father, he spent a total of 57 days during
calendar year 2014 in visitation with the children.
On October 28, 2014, respondent court held an afternoon session on
Father‟s RFO. The court considered Father‟s request to reduce child support, leaving
“for another day” “the issues of crossed accusations about whether [Mother] blocked
[Father] from seeing the children [and] whether [Father] has given the proper attention to
following through on the medical needs.” Respondent court entered a support order and
continued the hearing until February 11, 2015.
Although the parties agreed to share the costs for an Evidence Code section
730 evaluator to make recommendations regarding the children‟s best interests,
respondent court declined to appoint one.
On February 11, 2015, respondent court held the continued hearing on
Father‟s RFO. The hearing lasted for 15 minutes in the morning and several hours in the
afternoon.
Both Mother and Father briefly testified, primarily about Father‟s visitation
experiences with the children in October 2014, and also during his weeklong visitation
with them in Alabama over the Thanksgiving holiday and over Christmas.
Mother agreed that she and Father “needed a more structured visitation
schedule. And because we didn‟t have that, it created a lot of problems.” According to
her counsel, “[t]he parties didn‟t have a written schedule, which has led to some conflict
between the parties. There‟s no denying that.”
Father‟s counsel argued for a change in custody because “[t]hese kids need
to know that their father is important and involved in their lives and that even though
4
before whatever has happened, he is in a place where he can take them. He can give
them stability.”
At the conclusion of the hearing, respondent court expressed its doubts
about Mother‟s willingness to facilitate Father‟s visitation with the children. “But I don‟t
find [Mother] credible in stating that she would do anything she could for [Father] to see
the children.” “And it just seems like what I see as a chronic and consistent pattern of
one parent blocking the other continually and incredulously even during the week that
they came to court here and the day of [the October 28, 2014 hearing.] It just smelled
fishy.”
Respondent court determined that the 2009 Wisconsin custody order
“wasn‟t a final order[] in any event.” As a result, respondent court concluded that Father
did not have to establish changed circumstances. “So I won‟t even have to say things
have changed materially.”
Respondent court concluded, “It‟s time [Father] had an opportunity to
parent these children. I‟m going to change custody. He needs to be given the
opportunity to be the parent that he‟s striving to be in the limited time that he has.”
Respondent court acknowledged that the February 11, 2015 order would
require the children, then aged 9 and 12, to immediately change school in the middle of
the school year. “It‟s not [Father‟s] position. It‟s my position.” The court declined
Mother counsel‟s request to defer the timing of any order until the end of the school year,
and directed that its order take effect in four days, by February 16, 2015.
Respondent court made no orders regarding Mother‟s visitation rights other
than a visitation over the children‟s second spring break in April 2015, with Father to pay
for the children‟s visitation expenses “for this occasion only.” Respondent court
concluded by recognizing that “[t]hese children have two parents who love them very
much. And I expect those two parents to start getting along really well in the future.”
5
Mother filed a notice of the mandatory 30-day stay for out-of-state move-
away orders in Code of Civil Procedure section 917.7. In recognition of the Code
provision and over Father‟s objection, respondent court stayed immediate removal of the
children from California to Alabama.
Mother filed a timely petition for writ of mandate and a request for an
immediate stay of respondent court‟s February 11, 2015 move-away order.
We issued a stay of the February 11, 2015 minute order “insofar as it
awards physical custody of the minor children to Father.” We acknowledged respondent
court‟s continuing authority to issue orders “concerning Father‟s visitation rights with the
minor children,” even if such visitation involved trips outside California, as well as other
orders “to improve cooperation between the parents, or to assure the children have
frequent and continuing contact with both parents, or other similar matters.”
Our briefing order included a Palma notice, informing Father that we were
considering issuing a peremptory writ in the first instance. (See Palma v. U.S. Industrial
Fasteners, Inc. (1984) 36 Cal.3d 171, 179; see also Brown, Winfield & Canzoneri, Inc. v.
Superior Court (2010) 47 Cal.4th 1233.) Following the Palma notice, Father filed an
informal response, and Mother filed a reply.
III
DISCUSSION
Respondent court has discretion to modify an existing custody order based
on changed circumstances, or to grant or deny a move-away request. (In re Marriage of
Burgess (1996) 13 Cal.4th 25, 32.) This discretion may be abused by applying improper
criteria or by making incorrect legal assumptions. (Mark T. v. Jamie Z. (2011)
194 Cal.App.4th 1115, 1124-1125 [reversing postjudgment order regarding move-away
request].)
As we explain below, it appears respondent court‟s decision to abruptly
change custody from Mother to Father was influenced by an erroneous understanding of
6
the applicable law. Respondent court discounted Father‟s initial burden, as the moving
noncustodial parent, to address the potential disruptive impact of an out-of-state move-
away, including its effect on the children‟s existing educational, physical, emotional and
familial relationships. Move-away orders are “„one of the most serious decisions a
family law court is required to make,‟ and should not be made „in haste.‟” (In re
Marriage of Seagondollar (2006) 139 Cal.App.4th 1116, 1119 (Seagondollar).)
A. Father, as the Noncustodial Parent, Has the Burden to Establish a
Substantial Change in Circumstances Affecting the Children.
This is not an initial custody determination, where the family court has the
“widest discretion” to make a de novo determination of the parenting plan that is in the
best interest of the children. (In re Marriage of Burgess (1996) 13 Cal.4th 25, 31-32
(Burgess).) Neither is this a situation where the parents, pursuant to a final custody order,
have shared physical and legal custody of the minor children. (Niko v. Foreman (2006)
144 Cal.App.4th 344, 362-363 [parents shared 50-50 division of physical custody time];
see also Seagondollar, supra, 139 Cal.App.4th at p. 1119.)
To the contrary, there is a custody order entered nearly six years ago in
Wisconsin awarding joint legal custody to both parents, but awarding physical custody of
the children solely to Mother. The parties‟ post-dissolution conduct shows that they
intended for the October 2009 Wisconsin custody order to be a final judgment as to
custody; this was not a court-approved stipulation for temporary custody. (See
Montenegro v. Diaz (2001) 26 Cal.4th 249.) Father registered the custody order in the
Orange County superior court and filed a declaration under the Uniform Child Custody
Jurisdiction and Enforcement Act.
Therefore, as the noncustodial parent seeking a change of the existing
custody order, Father has the initial burden to make a substantial showing of changed
circumstances affecting the children to change the final custody determination of the
7
Wisconsin court. (In re Marriage of LaMusga (2004) 32 Cal.4th 1073, 1088-1089
(LaMusga); Burgess, supra, 13 Cal.4th at p. 38.)
“„“It is settled that to justify ordering a change in custody there must
generally be a persuasive showing of changed circumstances affecting the child.
[Citation.] And that change must be substantial: a child will not be removed from the
prior custody of one parent and given to the other „unless the material facts and
circumstances occurring subsequently are of a kind to render it essential or expedient for
the welfare of the child that there be a change.‟ [Citation.] The reasons for the rule are
clear: „It is well established that the courts are reluctant to order a change of custody and
will not do so except for imperative reasons; that it is desirable that there be an end of
litigation and undesirable to change the child‟s established mode of living.‟ [Citation.]”‟”
(Christina L. v. Chauncey B. (2014) 229 Cal.App.4th 731, 738 (Christina L.).)
In filing his RFO, Father acknowledged his burden under the changed
circumstance rule. He stated, “Modification of a custody order must be based on a
significant change of circumstances so affecting the child that modification is essential to
the child‟s welfare. The „changed circumstances‟ rule is an adjunct of the statutory „best
interests‟ test for determining child custody. [Citations.] It furthers the paramount goal
of preserving the need for continuity and stability in custody arrangements, unless some
significant change in circumstances indicates a different arrangement would be in the
child‟s best interest.”
It is not enough to argue that it is time to switch sides to give the other
parent the opportunity to take control. (In re Marriage of Brown & Yanna (2006) 37
Cal.4th 947, 956.) “When custody continues over a significant period, the child‟s need
for continuity and stability assumes an increasingly important role.” (Burchard v. Garay
(1986) 42 Cal.3d 531, 536 (Burchard).) This principle avoids an endless round of
emotionally and financially draining litigation in the family law courts. (Id. at p. 536.)
8
In Speelman v. Superior Court (1983) 152 Cal.App.3d 124, 127-128
(Speelman), the family law court ordered a change in physical custody for a six-year old
child from the father in Massachusetts to the mother in California based on the court‟s
“„gut reaction‟” that “„it‟s appropriate for the interests of the child to give him a chance to
succeed with his mother at this time. And if it doesn‟t work out, in a year from now we
can always find that we‟ve made a mistake.‟”
The appellate court in Speelman issued a writ of mandate to compel the
family court to vacate this order, notwithstanding the court‟s determination regarding best
interests. “„[A]lthough a request for a change of custody is also addressed in the first
instance to the sound discretion of the trial judge, he [or she] must exercise that discretion
in light of the important policy considerations just mentioned. For this reason appellate
courts have been less reluctant to find an abuse of discretion when custody is changed
than when it is originally awarded, and reversals of such orders have not been
uncommon.‟” (Speelman, supra, 152 Cal.App.3d at p. 129; see also Christina L., supra,
229 Cal.App.4th at p. 738.)
Applying similar principles in the related area of guardianships, this court
reversed an order terminating a long-term guardianship because of the failure of moving
party to counter “the inherent trauma of removing a child from a successful caregiver.”
(Guardianship of Kassandra H. (1998) 64 Cal.App.4th 1228, 1231.)
B. Father Has the Additional Burden to Establish That an Out-of-State
Move-Away Order Will Not Cause a Detriment to the Children and
Is In Their Best Interests.
Father argues that his evidence of changed circumstances (primarily based
upon Mother‟s inflexible approach to his visitation efforts) represents the end of the
story, and requires this court to defer to respondent court‟s discretionary determination
about the children‟s best interests: “[I]t has been routinely held that conduct by the
9
custodial parent designed to frustrate visitation and communication between the child and
other parent may constitute ground for changing custody. [Citations.]”
Father dismisses as irrelevant the fact that a change in custody requires the
children to relocate some two thousand miles from Orange County to Alabama. “It
cannot be automatically presumed that the children will suffer some form of harm, let
alone irreparable harm, simply because they will be living in a new state with their
father.” According to Father, “[t]his is not a move away case” because Father “already
lives in another state and custody is changed to that parent.”
We disagree. “A proposed change in the residence of a child can run the
gamut from a move across the street to a relocation to another continent.” (LaMusga,
supra, 32 Cal.4th at p. 1096.)
Because Father is not the custodial parent, he does not have a presumptive
right to relocate the children to another region of the country simply because he acts in
good faith and for a legitimate reason. Instead, as the noncustodial parent who seeks a
change in custody involving an out-of-state move away, Father bears additional burdens
of persuasion as part of the changed circumstances standard. (Speelman, supra, 152
Cal.App.3d at pp. 129-130.)
A move should not be allowed where it would be “„detrimental to the
child.‟” (Burgess, supra, 13 Cal.4th at p. 35.) As LaMusga itself noted, “„the paramount
need for continuity and stability in custody arrangements—and the harm that may result
from disruption of established patterns of care and emotional bonds with the primary
caretaker—weigh heavily in favor of maintaining ongoing custody arrangements.
[Citations.]‟” (LaMusga, supra, 32 Cal.4th at p. 1093.)
In LaMusga, the Supreme Court recognized the noncustodial parent who
seeks the change in primary physical custody bears the initial burden of proof regarding
the proposed move-away. Unlike here, the custodial parent in LaMusga wanted to move
the children away from their existing home in California to Ohio. To prevent the move-
10
away and keep the children in California, the noncustodial parent requested a transfer of
physical custody. Since the noncustodial parent bore the initial burden of showing
detriment, the Supreme Court obliged him to prove detriment to the children from the
planned move. The Supreme Court affirmed the custody change order precisely because
the noncustodial parent met his initial burden “that a relocation of the children out of the
State of California, the distance of 2000 miles is—would inevitably under these
circumstances be detrimental to their welfare.” (LaMusga, supra, 32 Cal.4th at p. 1085.)
Here, in contrast, it is Father, as the noncustodial parent, who seeks to
upend the status quo by compelling both a change in custody and a move-away. His
standard of proof to impose what amounts to a double-barreled change “is admittedly
very high.” (In re Marriage of Campos (2003) 108 Cal.App.4th 839, 843.)
At a minimum, this requires a balancing of the children‟s current situation
in California and their proposed new situation in Alabama, with the substantial burden of
showing a change of circumstance imposed upon Father, as the noncustodial parent, to
establish that the children will not sustain detriment by the proposed move, and that the
out-of-state move-away will serve their best interests. (See Burgess, supra, 13 Cal.4th at
p. 39.)
Here are some of the factors a family law judge should consider in
evaluating a noncustodial parent‟s move-away request: the children‟s ages (and, if age
appropriate the children‟s wishes); community ties; health and educational needs, the
attachment and past, present and potential future relationship of the children with each
parent; the anticipated impact of the move upon the children‟s existing social, educational
and familial relationships; and each parent‟s willingness to facilitate frequent, meaningful
and continuing contact to the other parent. (See discussion in LaMusga, supra, 32
Cal.4th at p. 1101, and cases cited therein; see also Philip M. Stahl, Emerging Issues in
Relocation Cases (2013) 25 J. Am. Acad. Matrim. Law 425, 426.)
11
This list of factors is not exhaustive. “[W]e recognize that bright line rules
in [child custody cases] are inappropriate: each case must be evaluated on its own unique
facts.” (Burgess, supra, 13 Cal.4th at p. 39.) “[T]his area of law is not amenable to
inflexible rules.” (LaMusga, supra, 32 Cal.4th at p. 1101.)
Father complains Mother did not identify the “purported irreparable harm”
that would result if the children were to be moved to Alabama with their father. In doing
so, Father impermissibly seeks to shift the burden of proof to Mother, the custodial parent
and the nonmoving party. “As the noncustodial parent with visitation rights, [Father]
carries the burden of proving [retaining custody with Mother] is not in [the minor child‟s]
best interests; the burden is not on [Mother] to prove the contrary.” (In re Marriage of
Abargil (2003) 106 Cal.App.4th 1294, 1298-1299.)
C. Respondent Court Abused Its Discretion in Failing to Consider the
LaMusga Move-Away Factors in Conjunction With Its Ruling on
Father’s Request for an Out-of-State Custody Change.
Respondent court abused its discretion in ordering a change in the existing
custody arrangement, with its attendant out-of-state move-away, without considering the
relevant LaMusga factors. Respondent court acted precipitously in issuing its February
11, 2015 move-away order and failing to weigh, in the context of Father‟s substantial
burden to show changed circumstances and best interests, the disruption to the children
from losing their existing home, school and support structure against the potential
benefits from an out-of-state relocation. (See Speelman, supra, 152 Cal.App.3d at
pp. 129-130 [writ issued]; see also In re Marriage of McLoren (1988) 202 Cal.App.3d
108, 116 [family court abused its discretion in changing custody from sole to joint legal
custody in the absence of a showing of substantially changed circumstances].)
Nothing in the record shows that respondent court weighed the children‟s
paramount interests in the stability and continuity of their current custodial arrangement,
or gave due consideration to the children‟s existing relationships and living situation.
12
Respondent court never mentioned the potential harm to the children from losing Mother
as their primary caretaker. As Mother argued in her writ petition: “The trial court did not
consider any evidence showing detriment to the children from the loss of contact to their
mother, their school, their friends, their accustomed place of residence, their doctors,
their therapists.”
Respondent court missed an opportunity to obtain expert guidance when it
rejected the parents‟ stipulation to share in the costs to retain and use an Evidence Code
section 730 evaluator to analyze the matter and to make recommendations for custody
and visitation. “A „child custody evaluation‟ is an expert investigation and analysis of
the health, safety, welfare, and best interest of children with regard to disputed custody
and visitation issues.” (Cal. Rules of Court, rule 5.220(c)(3).)
Respondent court was concerned that, absent a change of custody, Mother
would continue to interfere with the children‟s relationship with Father. Much of the
testimony at the hearing was devoted to Father‟s visitation experience during his
weeklong trip to California in October 2014 (when Mother “gave the most limited
amount of time possible, and then when [Father] didn‟t do exactly as she said, refused to
allow him to exercise even the scant visitation promised), as well during a Thanksgiving
visitation with Father in November 2014 (when Mother insisted “that one child complete
an extensive [and overdue] school project . . . because she had not seen that it was
completed [before the trip] . . . .”).
According to Father, Mother‟s “unrelenting pattern of frustrating” Father‟s
visitation rights, coupled with findings that Father was more likely to permit [the
children‟s] frequent and continuing contact with [the] noncustodial parent, „alone
provided adequate grounds for changing custody‟ to Father.”
It is certainly true that one of the key factors the court should address as
grounds for modifying custody is the custodial parent‟s deliberate efforts to impair
the children‟s frequent and continuing contacts with the noncustodial parent. (See
13
Burgess, supra, 13 Cal.4th at p. 36, fn. 6; Speelman, 152 Cal.App.3d at p. 132.) But
it is equally important, in weighing all the relevant circumstances, for the family law
court to assess whether the noncustodial parent is as likely to hamper visitation
should formal custody be switched. (Burchard, supra, 42 Cal.3d at pp. 540-541.)
In Burchard, the trial court changed custody of a two and one-half year
old child from the mother to the father based in part upon its determination that the
mother, who had been the child‟s primary caretaker, had been unwilling to provide
visitation to the father; the court determined that the father was “„better equipped
psychologically‟” to care for the child. In reversing the custody order for abuse of
discretion, the California Supreme Court noted that “after [the father] obtained
custody pursuant to the trial court‟s order, he proved equally obdurate to [the
mother‟s] visitation rights, leading the court to amend its order to spell out those
rights.” (Id. at pp. 540-541.)
Here too, as in Burchard, Mother cites her own difficulties in seeking
visitation with the children in the immediate weeks after respondent court‟s February
11, 2015 move-away order when physical custody was transferred to Father. “[Father‟s]
behavior in refusing to allow [Mother] and the children any time together in the 30 days
between his assumption of custody and the proposed move to Alabama . . . illustrates the
problems that are likely to be exacerbated if the children move with him.”1
1
Father disputes some aspects of [Mother‟s] claims regarding his conduct after he
was granted sole physical custody in the February 11, 2015 order: “[Mother‟s] statement
in the Petition that [Father] refused to give [her] the address where he and the children
would be staying . . . during the 30 day stay period . . . is blatantly false.”
We do note, however, that Father‟s opposition to the writ petition harshly attacks
virtually all of Mother‟s parenting skills. Father, for instance, claims Mother has placed
the children‟s health and safety at risk, failed to address their emotional and educational
needs, feeds their classmates doughnuts while insisting the boys remain on a gluten-free
diet, and is motivated as much by financial concerns to retain “her last bit of financial aid
from [Father],” thereby preserving her life style. Father justifies respondent court‟s
14
To the extent respondent court considers evidence regarding frustration of
visitation rights, respondent court should assess and consider the co-parenting abilities of
each parent to communicate and work with the other parent to facilitate contact between
the child and the distant parent.
The parents‟ charges and counter-charges heighten the toxic and corrosive
effect of protracted and open-ended litigation regarding custody changes. “Someone
once noted that in criminal cases you see bad people at their best and in custody cases
you see good people at their worst.” (W. Dennis Duggan, Rock-Paper-Scissors: Playing
the Odds with the Law of Child Relocation (2007) 45 Fam. Ct. Rev. 193, 194.)
In this context, respondent court should consider whether judicial remedies
other than a change in custody will further continuous and enduring relationships
between the children and both parents without disrupting the children‟s interests in
continuity and stability. It well may be that clearly defined visitation orders, with an
enhanced allocation of time to Father, may obviate time-consuming and disruptive
litigation. (In re Marriage of Lucio (2008) 161 Cal.App.4th 1068, 1072; Enrique M. v.
Angelina V. (2004) 121 Cal.App.4th 1371, 1379-1380.) “The trial court has broad
discretion to modify orders concerning contact and visitation to minimize the minor
children‟s loss of contact and visitation with the noncustodial parent.” (Burgess, supra,
13 Cal.4th at p. 40.)
abrupt custody change order as necessitated by the “significant danger” of Mother‟s
“vindictiveness” and an “emergency situation” to the older child‟s health. Father posits:
“It can only be imagined what damage [Mother] might attempt to inflict if the children
were left in her care after custody was modified.”
Such hyperbole causes us to question whether Father, left to his own devices,
would take a more facilitative approach to visitation than has Mother. The foregoing
illustrates the difficulties family law courts face in resolving custody disputes between
uncooperative parents. It also underscores the usefulness of a neutral evaluator or a
clearly defined parenting plan (or both), in providing guidance to the court and the
parents.
15
During the pendency of these writ proceedings, respondent court has begun
to implement specific visitation orders to reintroduce Father into the children‟s lives to
the fullest extent possible given the geographic distances, the children‟s ages and other
criteria. Respondent court should take into account any insights gained from such
experiences, as well as additional circumstances bearing on the best interests of the
children that may have developed during the pendency of these writ proceedings and
afterwards.
D. A Peremptory Writ in the First Instance is Appropriate.
Respondent court issued the February 11, 2015 change of custody order in
the middle of the school year, abruptly giving Mother only four days, or until February
16, in which to pull the children from their classes and somehow prepare them to be
uprooted and relocated to Father‟s home and family in Alabama.
While respondent court subsequently (and correctly) recognized the 30-day
automatic stay in Code of Civil Procedure section 917.7, the need for immediate action
remains because of the impact of the February 11, 2015 change of custody order on the
children‟s interests in stability and community in retaining their existing custodial
relationship with Mother, who has primary physical custody pursuant to the October
2009 Wisconsin custody order.
“Children live in the present tense, and „temporary‟ relocations may have a
severe and pernicious impact on their well-being and sense of security.” (Andrew V. v.
Superior Court (2015) 234 Cal.App.4th 103, 109 (Andrew V.). “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. v. Superior Court (2009) 174 Cal.App.4th
1047, 1057; see also San Joaquin Human Services Agency v. Superior Court (2014) 227
Cal.App.4th 215, 225 [issuing peremptory writ in first instance in dependency proceeding
in recognition of children‟s needs for certainty and permanency in stable home settings].)
16
Mother filed her writ petition on March 10, 2015. We issued a Palma
notice on March 11, 2015, inviting Father to file a response within 15 days and to address
the advisability of issuing a peremptory writ in the first instance. (See Palma v. U.S.
Industrial Fasteners, Inc. (1984) 36 Cal.3d 171, 179 (Palma); see also Brown, Winfield &
Canzoneri, Inc. v. Superior Court (2010) 47 Cal.4th 1233.) Father timely filed a 25-page
opposition, which we have read and considered, as well as the two-volume reporter‟s
transcript of the hearings on October 29, 2014 and February 11, 2015. This procedure
complies with the statutory and case law requirements for the issuance of peremptory
writs in the first instance. (Code Civ. Proc., § 1088; Lewis v. Superior Court (1999) 19
Cal.4th 1232, 1240 (Lewis).)
Because “petitioner‟s entitlement to the relief requested is so obvious that
no purpose could be served by plenary consideration of the issue,” we issue a peremptory
writ of mandate in the first instance. (Lewis, supra, 19 Cal.4th at p. 1260.) Prompt
disposition under the accelerated Palma procedure will enable respondent court to
exercise its reasoned discretion to fashion appropriate visitation and custody orders under
correct legal principles, and considering all the pertinent factors.
IV
DISPOSITION
Let a peremptory writ of mandate in the first instance issue directing
respondent court to vacate its order of February 11, 2015 granting Father physical
custody of the minor children and requiring that they move away from their California
residence with Mother to the state of Alabama, where Father resides. Respondent court
shall conduct further proceedings regarding appropriate visitation and custody orders in
accordance with this opinion. The temporary stay shall be lifted upon the finality of this
opinion as to this court.
The parties shall bear their own costs in conjunction with this writ
proceeding.
17
Filed 06/16/15
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION THREE
JANE J., G051603
Petitioner, (Super. Ct. No. 14FL000058)
v. ORDER GRANTING REQUEST
FOR PUBLICATION
THE SUPERIOR COURT OF ORANGE
COUNTY,
Respondent;
CHRISTOPHER J.,
Real Party in Interest.
THE COURT:*
Attorneys Eric D. Mackey-Fitzgerald, Jim P. Mahacek, Patrick E. Smith and
William F. Zulch have separately requested that our opinion, filed on June 5, 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 requests are GRANTED.
ARONSON, ACTING P. J.
*
Before Aronson, Acting P. J., Ikola, J., and Thompson, J.
1