Filed 1/23/15 Modified and Certified for Publication 2/9/15 (order attached)

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICTs

DIVISION THREE

ANDREW V.,

 Petitioner,

v.

THE SUPERIOR COURT OF ORANGE 

COUNTY,

 Respondent;

JESSICA V.,

 Real Party in Interest.

 G051310

 (Super. Ct. 04D009068)

 O P I N I O N

Original proceedings; petition for a writ of mandate to challenge an order of 

the Superior Court of Orange County, Carla M. Singer, Judge. Stay issued. Petition 

granted.

Law Office of Diane Vargas and Diane Vargas for Petitioner.

No appearance for Respondent.

Law Office of Ronald B. Funk and Ronald B. Funk for Real Party in 

Interest.

* * *
2

THE COURT:*

In this child custody dispute following a final custody determination, we 

issue a peremptory writ in the first instance because respondent court has improperly 

deprived petitioner of an opportunity to be meaningfully heard before granting real 

party’s move-away request to take the two minor children from the State of California to 

the State of Washington. 

A meaningful hearing is a critical requirement of California law before any 

judicial determination regarding an out-of-state move-away request for parents who, as 

here, share joint legal and physical custody following a final judicial custody order. 

These essential procedural safeguards cannot be evaded merely because respondent court 

labels its order as “interim,” “nonappealable,” “temporary,” and “without prejudice.”

I

Petitioner Andrew V. (Father) has filed a petition for writ of mandate / 

prohibition and a request for an immediate stay of respondent court’s “temporary” moveaway order of January 14, 2015. Real party Jessica V. (Mother) opposes the petition and 

stay request, and already has moved out-of-state with the minor children.

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.

 

* Before Aronson, Acting, P. J., Ikola, J., and Thompson, J.
3

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 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 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.” 

On January 20, 2015, Father filed a petition for writ of mandate and a 

request for an immediate stay. On the same day, we issued a Palma notice, requesting 

opposition from Mother and informing her that we were considering issuing a peremptory 
4

writ in the first instance. (Palma v. U.S. Industrial Fasteners, Inc. (1984) 36 Cal.3d 171, 

179 (Palma).) Mother filed a timely opposition. At our request, Father filed a copy of 

the confidential child custody evaluation under seal, as well as a supplemental letter brief 

addressing our concerns regarding the current status quo of the children’s whereabouts 

and schooling arrangements. 

Father’s counsel states that Mother “disenrolled the minor children from 

their school and two days later moved with the children to Seattle, Washington.” 

Mother’s counsel has informed us that she intends to enroll one of the children at a new 

school on January 23, 2015; the other child is due to start a new school on January 26, 

2015.

II

Respondent 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. (In re 

Marriage of Seagondollar (2006) 139 Cal.App.4th 1116 (Seagondollar).) 

Adherence to fundamental procedural safeguards is critical in move-away 

situations, which are among “‘the most serious decisions a family law court is required to 

make,’ and should not be made ‘in haste.’” (Seagondollar, supra, 139 Cal.App.4th at 

p. 1119.) These steps are necessary to facilitate the strong public policy favoring stable 

custody arrangements between parents who share joint legal and physical custody. (Id. at 

pp. 1119-1120.) 

In 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.” (In re 

Marriage of LaMusga (2004) 32 Cal.4th 1072, 1089, fn. 3.) 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. 
5

In her informal response to the writ petition, Mother claims that she “has 

been [the children’s] primary custodial parent . . . .” Whether the parents share “genuine” 

joint physical custody is a matter to be determined by respondent court at a full and fair 

hearing. (See Hogoboom & King, Cal. Practice Guide: Family Law (The Rutter Group 

2014) ¶¶ 7:573, 7:574, pp. 7-241 to 7-242.3.)

We cannot say, as Mother’s counsel so blithely asserts, that “it is more 

likely than not that the hearing will result in an order consistent with the [investigator’s] 

recommendation . . . .” To the contrary, respondent court itself expressed its willingness 

to “remain open-minded, and I’m certainly interested in hearing what the child custody 

investigator has to say.” “I do not think that it would be detrimental to the children if in 

fact the court reverses that order or issues a final order which is then appealable to return 

the children to Southern California if the court is persuaded that that should be done.”

We cannot sanction such a de facto move-away. As we stated in 

Seagondollar, “[t]he rules of procedure for reaching family law decisions — contained in 

the Family Code, the Code of Civil Procedure, the California Rules of Court, and local 

court rules — are not mere suggestions. The rules of procedure are commands which 

ensure fairness by their enforcement.” (Seagondollar, supra, 139 Cal.App.4th at 

p. 1120.)

In her informal response, Mother further urges we consider the allegation 

Father engaged in some unspecified acts of domestic violence involving Mother’s new 

husband. We note that Mother did not raise this argument in connection with the moveaway order below, and makes no attempt to expand upon or explain it here. The issue is 

not properly before us. (See discussion in Keith R. v. Superior Court (2009) 

174 Cal.App.4th 1047, 1056 (Keith R.) [addressing the “temptation to misuse domestic 

violence orders for tactical reasons”].)
6

III

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.
7

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; 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.) 

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.)

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 
8

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.
Filed 2/9/15

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

ANDREW V.,

 Petitioner,

v.

THE SUPERIOR COURT OF ORANGE 

COUNTY,

 Respondent;

JESSICA V.,

 Real Party in Interest.

 G051310

 (Super. Ct. 04D009068)

 ORDER GRANTING REQUEST 

 FOR PUBLICATION; 

 MODIFICATION OF OPINION;

 NO CHANGE IN JUDGMENT

THE COURT:*

Retired Los Angeles Superior Court Commissioner Keith M. Clemens has 

requested that our opinion, filed on January 23, 2015, be certified for publication. It 

appears that our opinion meets the standards set forth in California Rules of Court, rule 

8.1105(c). The request is GRANTED. 

This opinion is ordered published in the Official Reports, with the following 

modification: On page 8, line 4, add the following sentence: “Petitioner shall recover 

costs in this original proceeding. (Cal. Rules of Court, rule 8.493(a)(1)(A).)” 

This modification does not change the judgment.

___________________________

ARONSON, ACTING P. J.

* Before Aronson, Acting P.J., Ikola, J., and Thompson, J.