California Court Reviews “Move Away” Order in Child Custody Case

paper-map-2-1372604-m.jpgIn many divorce cases, spouses find it difficult to reach a mutually agreeable child custody arrangement. Parents are typically at odds with respect to the logistics and parental responsibilities in a custody dispute. There are specific matters to resolve, namely “legal” and “physical” custody, as well as a visitation schedule. But it is important to keep in mind that California law governs virtually every significant element of a divorce case, including the Family Code, the Code of Civil Procedure, the California Rules of Court, and local court rules. For this reason alone, anyone going through a divorce proceeding is strongly encouraged to contact an experienced family law attorney from the local San Diego area to help sort through the various legal steps involved in the case.

In a recent California custody case, the court identified the above-referenced legal procedural rules as “commands” implemented to ensure the fairness of the proceedings. In this case, the parties were married in 2003 and have two children. The couple separated in 2006 and divorced in 2008. Under the divorce judgment, the parents were granted joint legal and physical custody. Several years later, in July 2014, the mother sought a court order allowing her to move to Washington with the two children. The father opposed her request.

A child custody investigator conducted a full evaluation, completing the report in December. A hearing was set for January 14, 2015. As it turned out, the custody investigator was not available to testify at the hearing. Even though the court recognized the father’s right to cross-examine the investigator, it nevertheless issued a “temporary” move-away order, permitting the mother to relocate with the children in advance of the hearing. The court cited the investigator’s written recommendations as support for the decision. At the same time, the court continued the hearing on the move-away request to March 4, 2015.

The father’s counsel petitioned the court to grant an automatic stay under Section 917.7 of the Civil Procedure Code. The mother’s attorney argued that the statute applies only to final orders or appeals. The court refused to grant the stay and allowed the mother to move out of state with the children while they wait for the hearing in March. The father filed for an immediate stay, arguing that the court incorrectly construed California law by allowing for a temporary “move-away” prior to conducting a hearing. According to case law, the parties are entitled to a full hearing before approving a move-away order. The court looked at cases where one of the two parents (who share joint physical custody) seeks to relocate with the kids, and it concluded that courts must decide what is in the best interest of the kids.

In order to do so, the court pointed out that the parents must both have an opportunity to present their positions and supporting evidence. The court of appeals ultimately rejected the mother’s argument that Section 917.7 only applies to appealable judgments and orders, concluding that the statute does not make such a distinction. Furthermore, the court noted that to accept the mother’s view of the law would be to contravene public policy.

Here, the court concluded that the father was entitled to a meaningful hearing before effectively modifying the court’s original custody order. This case nicely illustrates the complicated nature of child custody proceedings and the need to consult with an experienced family law attorney in a divorce-related proceeding. Roy M. Doppelt is a seasoned divorce attorney who has more than 20 years of experience assisting clients in San Diego and throughout the State of California with all of their family law needs. To schedule a free confidential consultation, call Doppelt & Forney toll-free at (800) ROY IS IT (769-4748) or contact us through the law firm’s website.

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