California Court Holds Custody Order Not Appealable Under the Law

Family law cases come in all shapes and sizes; no two divorce proceedings are alike. But certain aspects of divorce are fairly predictable, especially when you know what to expect. The California Family Code, in conjunction with established case law, governs most procedural and substantive issues that may arise. Some of the more common items include the division of marital property, child custody disputes and spousal support. It is important to understand how these laws will impact the circumstances of your case, and particularly, your family’s rights down the road. The best way to ensure that you are adequately represented is to contact an experienced family law attorney who is fully aware of the local laws affecting cases brought in and around the San Diego area.

Of the issues to be resolved, child custody and visitation matters are often the most hotly contested. It is not difficult to understand why. Parents, who are splitting up, typically want to spend as much time with their children as possible — and may not see eye-to-eye when it comes to physical and legal custody. In a recent California divorce case, In re Marriage of Green, the parents were embroiled in a highly contentious custody battle. Once a court issued a temporary custody order transferring “sole physical custody” from the mother to the father, the mother fled to Canada with the couple’s three minor children. Under California law, when a judge issues a child custody ruling, it becomes a court order and has the force of law. Taking children out of the country in violation of a custody order can be considered “child abduction” and a serious crime.

In this case, criminal charges were brought against mother and the court issued a temporary custody order granting father sole legal and physical custody, with no visitation rights to mother. The court held a hearing on all matters related to the divorce, with the exception of custody – pending the outcome of the criminal case against mother. The court issued a “form judgment” that dissolved the marriage, divided the couple’s marital property, confirmed the existing custody orders, and continued the hearing on custody and visitation. Significantly, the court pointed out that this custody order was not “permanent” under the law set forth in a relevant California court decision.

Mother appealed from this order, setting forth various arguments. The court, however, asked the parties to provide legal briefs on whether the custody and visitation order was appealable (and/or moot) in the first place. Generally, under state law, interim or temporary custody orders are not appealable. Mother argued that the custody order was embodied in a form titled — “Judgment.” The court looked at the “substance” over the “form” of the order, and determined that, 1) it contemplates further proceedings on the matter, 2) the issue of custody was continued, and 3) the actual order states that it was “not permanent” within the meaning of local California law. The court concluded that the custody and visitation order was not appealable and dismissed that portion of the appeal.

Although it is an unpublished decision (and one may not rely on or cite to this opinion in future matters), this case nicely illustrates the interplay between state law and one’s rights in a divorce and custody case. It is extremely important to be guided by an experienced family law attorney in any divorce-related case. 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 and Forney, APLC toll-free at (800) ROY IS IT (769-4748) or contact us through the law firm’s website.

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