Higher Court Sets Higher Bar For Temporary Move-Away Orders

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Cited as 2015 DJDAR 1600, and certified for publication on February 9, 2015, Andrew V. versus Orange County makes it more difficult to obtain a temporary order for a move-away with your children before a trial takes place. 

  • JUST THE FACTS (e.g., WHAT THE HECK HAPPENED?)

     Last year, Orange County Superior Court allowed and granted an order for a mother with two minor children move to Washington State without a trial.  The lower court found the best interests of the children would be served by allowing the kids to enroll into the new school in a timely matter, which would have been two months before the March 2015 trial was to commence.  The father filed a writ of appeal, claiming a "meaningful hearing" was necessary before a temporary order for a move-away could be granted.

     The facts showed mother made a move-away request because she had a job transfer and a promotion waiting for her.  Mother and Father had 67/33 custody of the children, respectively. In August 2014, both sides agreed to let a child custody investigator/expert file a report/recommendation, and the matter would be heard January 2015 for the attorneys to question the findings of the expert.  However, both the evaluator and father's counsel could not be present at the January 2015 hearing, and the matter was continued to March 2015 (after the Washington State school began its next semester).  

     The lower court decided to order the move-away without a trial, based on its review of the counselor's written report recommending the move to server the children's "better interests".  The lower court reasoned the trial could take place after the move, and if they reversed their temporary order then the children could return to California. 

     The issue:  Can a lower court make a temporary out-of-state move away order without the other parent having an opportunity to cross-examine the proponents and their experts? Answer:   ABSOLUTELY NOT. 

  • PARTIES MUST FOLLOW THE RULES OF PROCEDURE

     Mother argued she had always been the primary parent, that the evaluator's written report was in favor of the move, and therefore a temporary move-away order was proper.  However, the Appellate Court disagreed, stating "[t]he rules of procedure for reaching family law decisions...are not mere suggestions.  The rules of procedure are commands which ensure fairness by their enforcement."  See Seagondollar, supra, 139 Cal.App. 4th at p. 1120.  

     Procedure dictates that the Father must have an opportunity to examine the Mother's witnesses and the evaluator before the move-away.  This Court found "the parent's competing claims [must] be heard in a calm, dispassionate matter, with adequate time to marshal and present evidence.  The lower court failed to do so, by granting the temporary move-away without a trial.

  • THE MANDATORY 30-DAY STAY ON A MOVE-AWAY JUDGMENT WAS IGNORED

     Did you know that Code of Civil Procedure section 917.7 states "in the absence of a writ or order of a reviewing court providing otherwise, the provisions of a 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"?  The higher court knew this, and reversed the lower court's order, finding that "there is no such exception simply because the order is denominated as 'temporary'... Children live in the present tense, and temporary relocations may have a severe and pernicious impact on their well-being and sense of security."  Also, this provision is found on page two of a Dissolution Summons, one of the Automatic Restraining Orders listed and to be followed by both parents in a dissolution of marriage proceeding. 

     In other words, move-away judgments/orders are SERIOUS orders, and once the order is made there is still a 30-day stay on the actual removal of the child.  This time period gives the other side a chance to file a Writ of Appeal, Set Aside, or Motion for Reconsideration without the child facing the option of having to return after a move-away order is quickly reversed.  

     So what has now changed?

     It is now more difficult for a moving parent to ask the court for a "temporary" move-away order without a trial on the issue.  Furthermore, even if such an order is still made, the opposing party still will be given 30 days to present argument to stop the move, file a motion, file a writ of appeal. 

     Move-away scenarios are very difficult on parties, and especially their minor children.  This case above demonstrates what happens when a lower court focuses on the immediate needs of the best interests of the children (i.e., their quick enrollment in their new school), without considering the boundaries of procedure (30 day rule) and the children's long-term best interests (maybe the kids should face the premature prospect of moving out of state, and then returning months later).  

     If you have more questions about this case, or wish to discuss a potential move-away scenario in your dissolution case, please contact me at (951) 276-0500.