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California Family Law Report

 

 

Case of the Month (from CFLR Monthly)

April 2015
[Archive]

The procedural rules are not mere suggestions . . .

 

In writ proceeding, Fourth District holds that trial court erred by issuing “ ‘temporary’ ” move-away order without giving left-behind parent meaningful hearing; CCP §917.7 30-day stay of move-away orders applies to any move-away order

 

Andrew V. v. Superior Court (Jessica V.)

(January 23, 2015; as modified and ordered published February 9, 2015)

California Court of Appeal 4 Civil G051310 (Div 3) 234 Cal.App.4 th 103, 183 Cal.Rptr.3d 517, 2015 FA 1677, per curiam. Orange County: Singer, J, stay issued and writ petition granted. For petitioner: Diane Vargas, (714) 245-0550. For trial court: no appearance. For real party in interest: Ronald Funk, (949) 216-7174. CFLP §§G.138.15, G.138.37.25.

 

Andrew and Jessica V. were married in 2003. Their daughter was born in December 2002 and their son in November 2005. The couple separated in 2006 and were divorced in June 2008. Their disso judgment provided, among other things, that they would have joint legal and physical custody of their children.

 

In July 2014, Jessica filed a request with the trial court, seeking an order permitting her to move to Washington State with the children because she had received a promotion and job transfer. Andrew opposed the move, claiming that his timeshare was 40%. In August 2014, the parties stipulated to a full custody evaluation. After the custody evaluator completed her report on December 22, 2014, the trial court scheduled a hearing for January 14, 2015. When the hearing date rolled around, the evaluator was unavailable and Andrew’s attorney was unable to appear due to illness. The trial court noted that Andrew had the right to cross-examine the evaluator and continued the hearing to March 4, 2015. Nevertheless, the court also noted that it had read the evaluator’s report; had “ ‘anticipated the recommendation’ ”; and had “ ‘serious concerns’ ” about making any order not in conformity with that recommendation. The trial court emphasized that it was “ ‘not close-minded on any issue,’ ” but believed that the children would be better off moving immediately, with the move-away issue to be resolved later. Accordingly, the trial court issued a “ ‘temporary’ ” order permitting Jessica to move to Washington State with the kids, on the basis of the evaluator’s recommendation. When Andrew protested that CCP §917.7 required a 30-day automatic stay for move-away orders, Jessica countered that the statute did not apply to temporary orders, but only to appeals and final orders. The trial court agreed with Jessica and refused to recognize the automatic stay. Jessica soon took the kids out of school and moved to Washington State.

 

On January 20, 2015, Andrew petitioned the Fourth District for a writ of mandate and requested an immediate stay. In response, the appellate court issued notice, seeking opposition from Jessica and information about the kids’ current whereabouts. After receiving the requested information, the appellate court issued the requested writ and stay order.

 

Putting the cart before the horse . . .
Quoting from In re Marriage of Seagondollar (2006) 139 Cal.App.4 th 1116, 43 Cal.Rptr.3d 575, 2006 CFLR 10317, 2006 FA 1244, the justices emphasized that move-away cases involve “ ‘the most serious decisions a family law court is required to make’ and should not be made ‘in haste.’ ” Therefore, compliance with procedural safeguards is critical in such cases. That means, the panel said, that the trial court must conduct a full adversarial hearing before it makes any move-away order, not after. Moreover, where, as here, the parents have joint custody of their children, the lower court must determine de novo what custody arrangement is in the kids’ best interest before it makes its move-away order. And, in doing so, it must allow “the parents’ competing claims [to] be heard in a calm, dispassionate manner, with adequate time to marshal and present evidence.” Here, Jessica had asserted that the trial court was “ ‘more likely than not’ ” to make an order in line with the custody evaluator’s recommendation. The justices, however, reminded her that the lower court professed to have an open mind and at least entertained the possibility that it might reverse its temporary order after it heard from the evaluator. Be that as it may, the panel found that the trial court could not base its order on assumptions made from the evaluator’s report and erred by making a temporary move-away order that was subject to later reversal and return of the kids to California. As the Seagondollar court had said, “ ‘[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.’ ”

 

It just gets worse . . .
The panel also found that the lower court “compounded its error” by refusing to apply the 30-day automatic stay in CCP §917.7 to its order in the mistaken belief that the statute did not apply to temporary orders. The justices reasoned that temporary orders could be as detrimental to a child as a permanent order. The procedural safeguard built into the statute is intended to protect the child’s interest in stability and continuity, the panel explained. Recognizing an exception for temporary orders and permitting temporary relocations could have “a severe and pernicious impact on their well-being and sense of security.” Moreover, the panel continued, there is nothing in the wording of the statute that carves out an exception for temporary orders and they were not inclined to create or recognize one. The trial court’s actions, the justices concluded, deprived Andrew of a meaningful hearing and essentially modified a final joint custody order without proper procedural safeguards. The panel ordered a stay of the trial court’s temporary move-away order, required the kids to be returned to California forthwith, and issued a peremptory writ of mandate directing the lower court to vacate its January 14, 2015, order to the extent that it may be construed as permitting Jessica to move with the kids to Washington State temporarily. This writ, the panel said, is without prejudice to the parties’ right to petition the trial court for any appropriate custody or visitation arrangements.

 

 

Comment

  

The full quote of what the trial court said before making its temporary move-away order is this: “ ‘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.’ ” The trial court may not be close-minded, but it seems to us that it was strongly leaning toward following the evaluator’s recommendation, regardless of what cross-examination might elicit. It’s hard to imagine any other basis for the trial court’s belief that it would be in the kids’ best interests to move to Washington State right away and then, oops, come back later. Whatever the reasons, the justices here unequivocally find that temporary move-away orders are not permitted and give cogent reasons why not. This holding is one of the things that makes this such an important move-away case, another is its holding regarding the application of the 30-day stay.

 

 

We can’t remember a recent case in which the CCP §917.7 automatic 30-day stay was an issue. We hope that doesn’t mean that family law attorneys are overlooking the statute, because its importance is obvious. The statute provides that an 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 the panel notes here, the statute makes no exception for temporary orders. However, orders directing that a child be returned to a sister state or country, in proceedings brought under the Uniform Child Custody Jurisdiction and Enforcement Act (Fam C §3400 et seq.), the Parental Kidnapping Prevention Act (28 USC 1738A) or the Hague Convention (as implemented by the International Child Abduction Remedies Act (42 USC 1160 et seq.) are explicitly exempted from the automatic stay provision.

 

 

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