When can the court lift the automatic stay of 30 calendar days after ruling on a custodial parent’s move-away request?

The perfecting of an appeal shall not stay proceedings as to those provisions of a judgment or order which award, change, or otherwise affect the custody, including the right of visitation, of a minor child in any civil action, in an action filed under the Juvenile Court Law, or in a special proceeding, or the provisions of a judgment or order for the temporary exclusion of a party from a dwelling, as provided in the Family Code. However, the trial court may in its discretion stay execution of these provisions pending review on appeal or for any other period or periods that it may deem appropriate. Further, in the absence of a writ or order of a reviewing court providing otherwise, the provisions of the 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 seven calendar days from the entry of the judgment or order by a juvenile court in a dependency hearing, or for a period of 30 calendar days from the entry of judgment or order by any other trial court. The periods during which these provisions allowing, or eliminating restrictions against, removal of the minor child from the state are stayed, are subject to further stays as ordered by the trial court or by the juvenile court pursuant to this section. An order directing the return of a child to a sister state or country, including any order effectuating that return, made in a proceeding brought pursuant to the Uniform Child Custody Jurisdiction and Enforcement Act (Part 3 (commencing with Section 3400) of Division 8 of the Family Code), the Parental Kidnapping Prevention Act of 1980 (28 U.S.C. Sec. 1738A), or the Hague Convention on the Civil Aspects of International Child Abduction (implemented pursuant to the International Child Abduction Remedies Act (22 U.S.C. Secs. 9001 - 9011)) is not a judgment or order which awards, changes, or otherwise affects the custody of a minor child within the meaning of this section, and therefore is not subject to the automatic stay provisions of this section.

Father and Mother were married in 2003 and have two children, a girl, born in December 2002, and a boy, born in November 2005. They permanently separated in 2006 and a judgment of dissolution was finalized in June 2008. The judgment of dissolution provided for Father and Mother to share joint legal and physical custody.

In July 2014, Mother filed a request for an order allowing her to move away with the two minor children to the State of Washington due to a job transfer and promotion. Father opposed the move-away request. Father claims that he has a 40 percent timeshare of shared custody; Mother computes his timeshare percentage to be 35 percent.

In August 2014, a stipulation and order for a full child custody investigation was made. The child custody investigator completed her child custody investigation report on December 22, 2014, and respondent court scheduled a hearing on January 14, 2015.

According to the transcript and minute order, the child custody investigator was not available to testify at the January 14, 2015 hearing. Respondent court recognized that Father's counsel had a right to cross-examine the child custody investigator, and the court further acknowledged that Father's counsel, while present at the hearing, was physically unable to represent Father at the hearing because of counsel's illness. As a result, respondent court continued the hearing on Mother's move-away request until March 4, 2015.

Despite this, respondent court issued a “temporary” move-away order allowing Mother to relocate with the minor children to the State of Washington based upon the written recommendations of the child custody investigator. “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

[183 Cal.Rptr.3d 519]

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.”

At the hearing, Father's counsel requested that respondent court recognize the 30–day automatic stay for move-away orders in Code of Civil Procedure section 917.7. Mother's counsel argued the statute only applies to appeals or final orders, “and this is not a final order.” After reviewing the statute, respondent court declined to recognize the automatic stay. “That's correct. That was the way I read it as well.”

Respondent court has compounded its error by refusing to recognize the mandatory automatic 30 calendar day stay afforded by Code of Code of Civil Procedure section 917.7. The statute provides, in pertinent part: “[I]n the absence of a writ or order of a reviewing court providing otherwise, the provisions of the 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.”

As a result, even were respondent court to issue a move-away order following the March 4, 2015 hearing, any such order would be subject to an automatic stay for an additional 30 calendar days pursuant to Code of Civil Procedure section 917.7.

Respondent court operates under the misapprehension that the above procedural and substantive safeguards, including the automatic stay, do not apply to “temporary” or “interim” move-away orders. “But any order I make today would be a temporary order clearly made without prejudice subject to change.”

There is no such exemption simply because the order is denominated as “temporary.” Temporary orders may have equally serious implications inasmuch as they alter the status quo and affect the children's interests in stability and continuity. Children live in the present tense, and “temporary” relocations may have a severe and pernicious impact on their well-being and sense of security.

For this reason, we reject Mother's argument that the automatic stay in Code of Civil Procedure section 917.7 only applies to appealable judgments and orders, not to an interlocutory, temporary order that is made without prejudice. There is nothing in the above-quoted language in section 917.7 that makes such a distinction, and Mother's interpretation would subvert the clear policy purposes underlying the automatic stay, as well as the procedural safeguards for meaningful hearings on move-away orders.

[183 Cal.Rptr.3d 521]

We decline to exercise our discretion under Code of Civil Procedure section 917.7 to lift or modify the automatic stay. The final custody order calls for the parents to have joint legal and physical custody. Without any meaningful hearing, the trial court has modified this final custody order based upon its reading of the written child custody investigator's report and recommendations, treating such recommendations as presumptively valid unless otherwise disproven.

IV

A peremptory writ in the first instance is proper to resolve “this purely legal dispute in an area where the issues of law are well-settled.... There is a particular need to accelerate the writ process in child custody disputes where children grow up quickly and have immediate needs.” (Keith R., supra, at p. 1057, 96 Cal.Rptr.3d 298; see also Code Civ. Proc., § 1088.) We have solicited, received and considered Mother's opposition on the merits of Father's writ petition and gave notice that if the circumstances so warranted, we might issue a peremptory writ in the first instance. (Palma, supra, 36 Cal.3d at p. 180, 203 Cal.Rptr. 626, 681 P.2d 893.) Because respondent court deprived Father of the opportunity to be meaningfully heard on Mother's move-away request according to the correct legal standard, the matter requires accelerated review and decision. (Code Civ. Proc., § 1088; see Lewis v. Superior Court (1999) 19 Cal.4th 1232, 1259–1260, 82 Cal.Rptr.2d 85, 970 P.2d 872.)

Disposition

Father's request for a stay of respondent court's “temporary” move-away order is granted. The stay order is effective immediately upon the filing of this opinion. Accordingly, the children shall be returned to the State of California forthwith, and respondent court has the power and the authority to issue any necessary orders to effectuate this stay.

Let a peremptory writ of mandate in the first instance issue directing respondent court to vacate its order of January 14, 2015 to the extent it may be construed as granting Mother temporary permission to move away to the state of Washington with the minor children. The writ shall be without prejudice to the parties' right to petition respondent court for any appropriate custody or visitation arrangements in accordance with California law. The stay order shall be dissolved upon the finality of this opinion as to this court. Petitioner shall recover costs in this original proceeding. (Cal. Rules of Court, rule 8.493(a)(1)(A).)

Lief and Nissan met in Israel in 2010. Nissan moved to San Diego and married Lief in 2011. They had a son in 2014. Lief filed a marital dissolution

[30 Cal.App.5th 870]

action against Nissan in 2017. The family court bifurcated the issue of custody and visitation, held a trial on Nissan's request to move with the child to Israel, and tentatively granted the request on August 10, 2018. Upon Lief's motion for reconsideration, the family court reopened the hearing to consider additional evidence and argument. The court ultimately entered a judgment granting Nissan's move-away request on November 7, 2018.

After receiving notice from Nissan that she intended to depart for Israel with the child on November 22, 2018, Lief filed an ex parte application with the family court for an order preventing the move-away until after December 7, when the 30-day stay of the judgment granting the move-away request would expire. (Code Civ. Proc., § 917.7.) The court ruled its August 10, 2018 order tentatively granting Nissan's move-away request started the stay period running, denied Lief's application on November 21, and ordered Lief to turn over the child to Nissan that evening.

Lief petitioned us for a writ of mandate and requested an immediate stay of the ex parte order purporting to allow Nissan to move to Israel with the child on November 22, 2018. Lief argued Nissan could not then take the child to Israel because the stay of the judgment provided by Code of Civil Procedure section 917.7 would not expire until December 7. We stayed the family court's order, advised the parties we were considering issuing a peremptory writ in the first instance, and invited Nissan to file a response to the petition. (See Palma v. U.S. Industrial Fasteners, Inc. (1984) 36 Cal.3d 171, 180, 203 Cal.Rptr. 626, 681 P.2d 893.) In her response, Nissan conceded Lief is entitled to relief and agreed not to leave the state until after December 7.

The family court erred when it ruled the 30-day statutory stay commenced with its decision of August 10, 2018, tentatively granting Nissan's move-away request. A judgment or order of the family court allowing removal of a minor child from this state is stayed "for a period of 30 calendar days from the entry of judgment or order ." (Code Civ. Proc., § 917.7, italics added.) The court's oral statement of its decision at the end of the August 10 hearing was not a judgment or order. The statement contained several conditions, including the drafting of a visitation plan by Lief's attorney, which had to be met before Nissan could move away with the child. Furthermore, in the family court's written statement of decision, filed after the court reopened the custody and visitation trial to consider additional evidence and argument, the court acknowledged it "had not entered judgment and its decision remained tentative pending the final statement of decision." A "tentative decision does not constitute a judgment and is not binding on the court." (Cal. Rules of Court, rule 3.1590(b).) Thus, the August 10 tentative

[30 Cal.App.5th 871]

decision did not commence the 30-day statutory stay period. Rather, the period began to run when the family court filed the judgment granting Nissan's move-away request on November 7. (Id., rule 8.104(c)(1) [entry date of judgment is date of filing].)

[242 Cal.Rptr.3d 54]

To correct the family court's error in ruling the stay began to run on August 10, 2018, issuance of a peremptory writ in the first instance is appropriate. The material facts are not in dispute, the applicable law is settled, Nissan concedes Lief is entitled to relief, the need for final resolution of the child's custody is urgent, and no useful purpose would be served by plenary consideration of the issue. (Code Civ. Proc., § 1088; Lewis v. Superior Court (1999) 19 Cal.4th 1232, 1240-1241, 82 Cal.Rptr.2d 85, 970 P.2d 872; Jane J. v. Superior Court (2015) 237 Cal.App.4th 894, 909-910, 188 Cal.Rptr.3d 432.)

DISPOSITION

Let a writ issue commanding respondent, immediately upon receipt of the writ, to vacate its November 21, 2018 order denying petitioner's ex parte application for an order preventing real party in interest from removing the child from this state, and to enter a new order granting the application. The stay previously issued by this court is dissolved. This opinion shall be final as to this court upon filing. (Cal. Rules of Court, rules 8.490(b)(2)(A).) Petitioner is entitled to costs. (Id., rule 8.493(a)(1)(B).)

The superior court denied mother's request for a custody evaluation and ordered custody of the children changed from mother to father, so the children could move to Missouri to live with father. The superior court found: "[T]here is no bad faith in the request for the move. And therefore, [the court] is to consider the best interest of the children as it relates to whether or not there would be a detriment or no detriment to the children and determine whether or not a move-away is appropriate in this case. The Court finds that there is no detriment to the move, no substantial detriment. There's always . . . some disruption, but no detriment to the move that has been expressed that the Court finds credible in this particular case; [the court] [h]as considered all the factors enumerated in re the La Musga case and grants -- finds it's in children's best interest to grant the move-away . . . -- to Missouri; [and] authorizes them to move there and live primarily with father."

The superior court's order of July 27, 2018, was stayed for 30 days by operation of law, pursuant to Code of Civil Procedure section 917.7.¹ In the interim, the superior court ordered that the

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move-away order would become a temporary order pending the expiration of the 30-day stay.

Thereafter, in the middle of the night on August 10, 2018, father removed the children from mother's home. Mother immediately filed a request for a domestic violence restraining order (DVRO). On August 13, 2018, at the hearing on mother's request for a temporary DVRO, the superior court explained that the temporary move-away order was actually a temporary change in the visitation schedule, not a violation of the automatic stay prescribed in section 917.7. The children started school in Missouri on August 15, 2018.

Mother timely appealed the order of July 27, 2018, and filed a petition for a writ of supersedeas. After a hearing on the petition for a writ of supersedeas, we granted the petition and stayed the superior court's order of July 27, 2018, pending resolution of this appeal. We ordered father to return the children to mother's custody in Ventura County pending this appeal.

The superior court compounded its error by refusing to recognize the mandatory automatic 30-day stay provided by section 917.7.

The automatic 30-day stay expired on August 27, 2018. The children were permanently moved to Missouri on August 10, 2018. The children were enrolled in school in Missouri and began attending classes there on August 15, 2018. No matter how the superior court chose to characterize its order of July 27, 2018, this was a permanent move of the children effectuated during the period of the automatic stay under section 917.7.

The automatic stay provided for in section 917.7 operates as a procedural safeguard. It allows the appellate court time to review a custody order prior to the removal of a child from the state and the opportunity to issue a stay to preserve appellate jurisdiction. This ensures stability and continuity for the children, and prevents repeated changes in custody that disrupt children's lives. The superior court's order in this case undermines that purpose. There is no exemption in section 917.7 for "interim" or temporary move-away orders. (Andrew V. v. Superior Court (2015) 234 Cal.App.4th 103, 109.)

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The superior court's actions created the subsequent emergency request for a writ of supersedeas in this court and required the children to bounce back and forth between mother's and father's residences. It also resulted in father's actions in taking the children from mother's house in the middle of the night on August 10, 2018. This court cannot condone father's decision to remove the children from mother's residence in the middle of the night. Nor can we ignore the superior court's failure to observe the automatic stay under section 917.7, which is in place to prevent the repeated changes in custody that occurred here.

Had the superior court observed the automatic stay, this court could have reviewed mother's request for a temporary stay and petition for a writ of supersedeas during the 30-day period set forth in section 917.7. The children would not have had to start school in Missouri prior to appellate review, and then be returned to Ventura County where they had missed the first day of school.

The declaration and evidence submitted by Paula supported a finding that she, T.D., and F.D. potentially were in danger from Christopher. The declaration and evidence established that Christopher had, in violation of the domestic violence restraining order, learned where T.D. and F.D. attended school and had sent e-mail messages and made Facebook postings that could be interpreted as threats to Paula. Christopher's conduct was made all the more threatening by his failure to submit proof that he had sold his guns or turned them in to law enforcement, as required by the domestic violence restraining order. Just a month before the ex parte application, the respondent court had conducted a three-day evidentiary hearing on Paula's request for a domestic violence restraining order. During the hearing, the respondent court reviewed exhibits, heard and watched Paula and Christopher testify, and had the opportunity to assess their credibility and demeanor. The potential dangers facing Paula, T.D., and F.D. distinguish this case from Andrew V. and Keith R., where no such exigent circumstances were present.

[...]

Christopher argues the respondent court erred by failing to issue the 30-day stay of the temporary move-away order afforded by section 917.7. He asserts that "[h]ad Respondent Court not failed to issue the automatic 30 day stay as set forth in . . . [section ]917.7, Paula would still be in the United States so that this court could consider issuance of a stay pending appeal." There was no reason for the respondent court to issue the stay under section 917.7 because it arises automatically "by operation of law" for 30 calendar days. Christopher filed his petition for writ of mandate on April 20, 2015, more than 30 days after the temporary move-away order was issued, and after the mandatory stay had expired.

In that respect, this case is distinguishable from Andrew V., supra, 234 Cal.App.4th 103, in which a panel of this court concluded the trial court erred by refusing to recognize the mandatory stay of section 917.7. In Andrew V., the move-away hearing was conducted and the order made on January 14, 2015. (Id. at p. 106.) At the hearing, the trial court declined the request of father's counsel to "recognize" the automatic stay of section 917.7. (Andrew V., supra, at pp. 106-107.) Father filed his petition for writ of mandate on January 20, 2015, and a panel of this court issued a peremptory writ of mandate on January 23. (Id. at p. 107.) In Andrew V., the court declined to lift the automatic stay and ordered the children to be returned to California "forthwith." (Id. at pp. 109, 110.) Here, unlike in Andrew V., the automatic stay of section 917.7 expired before Christopher filed his writ petition.

Although exigent circumstances justified issuing the temporary move-away order by ex parte request without notice to Christopher, the order is temporary, and an evidentiary hearing, following proper notice, must be conducted to determine whether to issue a permanent order. We will direct the respondent court to conduct such an evidentiary hearing, governed by the best interest of the children standard. (Andrew V.,

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supra, 234 Cal.App.4th at p. 107; Keith R., supra, 174 Cal.App.4th at p. 1054.) In addition, an evidentiary hearing to determine permanent custody must be conducted because a custody determination made as part of a domestic violence restraining order is not permanent. (Keith R., supra, at p. 1051.) The best interest of the child standard governs the determination of custody. (Ibid.)