One of the toughest decisions for a family law judge to make, here in California and probably anywhere else in the country, is whether to allow one parent to relocate with the minor children to a place significantly far away from the other parent.
A California judge faced this situation recently in the case of Andrew V. v. Superior Court, which was certified for publication yesterday. In this case, the parties, who have two children (ages 12 and 9), were divorced in 2008. The judgment said that the mother and father would share joint legal and physical custody.
In July, 2014, the mother filed a request with the court for permission to relocate to the State of Washington with the two children because of a job promotion. Not surprisingly, the father opposed the request. The parties agreed to allow a child custody evaluator to make recommendations to the court. A hearing was set for January 14, 2015.
However, on that date, the child custody investigator was not available to testify and the father’s attorney was not feeling well. Therefore, the court continued the hearing to March 4, 2015. At this point, nothing was all that peculiar about the case.
But because the child custody evaluator had prepared a written report, even though he or she was not actually available to testify, and because the evaluator had recommended that the move-away be allowed, the trial court decided to allow the mother to relocate to Washington immediately, but on a “temporary” basis, pending the March 4 hearing. This was particularly surprising because California law says that even when a judge allows a parent to relocate to another state (or country), the order cannot go into effect for 30 days. As the trial judge said, “I do think it would be in the better interest of the children that they move now and that we resolve this later”.
Two days later, Mother disenrolled the kids from their California school. Six days after the hearing, on January 20, 2015, the father filed a special type of emergency appeal called a “writ”. The father asked for a stay of the trial court’s decision. The Court of Appeal agreed with the father, noting that the mother had already moved out-of-state with the kids and that they were scheduled to start school in Seattle on January 23rd and January 26th respectively. The Court of Appeal stated that “[r]espondent court erred in construing California law to allow for a ‘temporary’ move-away first and a hearing later. A full adversarial hearing must precede, not follow, any out-of-state move-away order, however denominated”.
It is true that where one parent has the children for an overwhelming period of time, and that parent seeks to relocate with the children, the moving parent has a presumptive right under California Family Code section 7501 to relocate with the children, subject to the court’s ability to intervene based on evidence that the move would not be in the best interests of the children. But in the Andrew V. case, there was joint custody. As the justices stated, “[I]n such cases, where one of two parents sharing joint physical custody seeks to relocate with the minor children, ‘the court must determine de novo what arrangement for primary custody is in the best interest of the minor children. The best interests of the children require that the parents’ competing claims be heard in a calm, dispassionate matter, with adequate time to marshal and present evidence”.
The appeals court also noted that “[r]espondent court has compounded its error by refusing to recognize the mandatory automatic 30 calendar day stay afforded” by the rule that puts a 30 day hold on out of state move-aways. Apparently, the trial court thought that if its order was only a stop-gap measure that was made on a “temporary” basis or “without prejudice”, the 30 day rule did not apply. But as the justices explained, “[c]hildren live in the present tense, and ‘temporary’ relocations may have a severe and pernicious impact on their well-being and sense of security”.
Therefore, the Court of Appeal granted the stay, effective immediately and decreed that “the children shall be returned to the State of California forthwith”. Of course, the mother (or father) in a family law case is normally not subject to the jurisdiction of the court, and nothing prevents her, or prevented her, from moving herself to Washington State, without the kids. She could have made a decision to take the promotion but leave the children with the father, or simply start the job in Washington while the custody details were being worked out down here and the kids were allowed to finish out the school year in California. But that is not what she did.
The three justices who decided this case are based with the Court of Appeal’s branch in Santa Ana, which hears appeals from Orange County. However, in California, decisions by the Court of Appeal are binding on all trial courts in the state, including San Diego.
Furthermore, the decision in Andrew V. has been certified for publication, which means that it can be cited as precedent in future move-away cases or other cases where the holding might be relevant.
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