Filed 3/3/15; unmodified opinion and pub. & mod. order dated 2/9/15 attached

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. No. 04D009068)

ORDER MODIFYING OPINION; (NO CHANGE IN JUDGMENT)

THE COURT: * The per curiam opinion filed on January 23, 2015 and modified and certified for publication on February 9, 2015, is further modified as follows:
1. On page 3, second paragraph: Add the phrase “, while present at the hearing,” following the words “F ather’s counsel.” As revised, the second sentence of the second paragraph on page 3 sh ould read: “Respondent cour t recognized that Father’s counsel had a right to cross-ex amine the child custody inves tigator, and the court further

* Before Aronson, Acting P.J., Ik ola, J., and Thompson, J.acknowledged that Father’s counsel, while pres ent at the hearing, was physically unable to represent Father at the heari ng because of counsel’s illness.”
2. On page 4, last line of the page : Change “matter” to “manner.” As corrected, the last sentence of the page should read: “The best interests of the children require that the parents’ competing claims be heard in a calm, dispassionate manner, with adequate time to marshal and present evidence.” This modification does not change the judgment.Filed 1/23/15; unmodified version

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
(S uper. 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 an d Ronald B. Funk for Real Party in

Interest.
* * *2 THE COURT: * In this child custody dispute followi ng a final custody determination, we issue a peremptory writ in th e first instance because respondent court has improperly deprived petitioner of an oppor tunity to be meaningfully heard before granting real party’s move-away request to take the two mi nor children from the State of California to the State of Washington. A meaningful hearing is a critical re quirement of California law before any judicial determination regarding an out-of-s tate 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,” “nonappealab le,” “temporary,” and “without prejudice.”

I Petitioner Andrew V. (Father) has f iled a petition for writ of mandate / prohibition and a request for an immediate stay of responde nt court’s “temporary” moveaway order of January 14, 2015. Real part y Jessica V. (Mother) opposes the petition and stay request, and already has moved ou t-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 Novemb er 2005. They permanently separated in 2006 and a judgment of dissolution was fina lized in June 2008. The judgment of dissolution provided for Father and Mother to share joint le gal and physical custody. In July 2014, Mo ther filed a request for an order allowing her to move away with the two minor childre n 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, a nd respondent court scheduled a hearing on January 14, 2015. According to the transcript and minut e 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-ex amine the child custody investigator, and the court further acknowledged that Father’s co unsel was physically unable to represent Father at the hearing because of counsel’s illness. As a resu lt, respondent court continued the hearing on Mother’s move-awa y request until March 4, 2015. Despite this, respondent court issu ed 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 cu stody investigator. “A nd at this point in
time without the benefit of a cross-examinati on 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 [inve stigator’s] recommendation, b ecause 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 childre n that they move now
and that we resolve this later.” At the hearing, Father’s counsel re quested that respondent court recognize the 30-day automatic stay for move-away orde rs 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 reviewi ng 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 file d 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 peremptory4 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 in formed us that she in tends 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 constr uing 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 m ove-away order, howeve r 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 n ecessary to facilitate the strong public policy favoring stable custody arrangements between parents who sh are 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 mi nor children, “the court ‘mus t 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 be st interests of the children require that the parents’ competing claims be heard in a calm, dispassionate matter, with adequate time to ma rshal 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 determ ined by respondent cour t at a full and fair hearing. (See Hogoboom & King, Cal. Practi ce Guide: Family Law (The Rutter Group 2014) ¶¶ 7:573, 7:574, pp. 7-241 to 7-242.3.) We cannot say, as Mothe r’s counsel so blithely asse rts, that “it is more likely than not that th e hearing will result in an order co nsistent with the [investigator’s] recommendation . . . .” To the contrary, res pondent court itself expressed its willingness to “remain open-minded, and I’m certainly inte rested in hearing wh at 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 cour t is persuaded that th at should be done.”
We cannot sanction such a de fact o 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 fu rther 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 e xpand 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 t actical reasons”].)6 III Respondent court has compounded its error by refusing to recognize the mandatory automatic 30 calendar day stay afford ed by Code of Code of Civil Procedure section 917.7. The statute provides, in pertin ent 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 pe riod 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 Pr ocedure section 917.7. Respondent court operates under th e misapprehension that the above procedural and substantive sa feguards, including the auto matic stay, do not apply to “temporary” or “interim” move-away orders. “But any order I ma ke today would be a temporary order clearly made withou t prejudice subject to change.” There is no such exemption simply because the order is denominated as “temporary.” Temporary orders may have equally serious imp lications inasmuch as they alter the status quo and affect the children’s interests in stability a nd continuity. Children live in the present tense, and “temporary” re locations 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 clea r policy purposes underlying the automatic stay, as well as the procedural safeguards fo r meaningful hearings on move-away orders.7 We decline to exercise our discre tion under Code of Civil Procedure section 917.7 to lift or modify the automatic stay. The final custo dy order calls for the parents to have joint legal and physical cu stody. 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 recomme ndations, 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 wher e 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 co nsidered Mother’s op position 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 depriv ed 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.)

D ISPOSITION Father’s request for a stay of res pondent court’s “temporary” move-away order is granted. The stay order is effectiv e immediately upon the filing of this opinion. Accordingly, the children sha ll be returned to the State of California forthwith, and respondent court has the power and the auth ority 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 pe rmission to move away to th e state of Washington with8 the minor children. The writ shall be withou t prejudice to the parties’ right to petition respondent court for any appropriate cust ody 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
(S uper. 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, f iled on January 23, 2015, be cer tified for publication. It appears that our opinion meets the standards se t 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, lin e 4, add the following sentence: “Petitioner shall recover costs in this original pro ceeding. (Cal. Rules of Court, rule 8.493(a)(1)(A).)” This modification does not change the judgment.2 _____________ ______________ ARONSON, ACTING P. J. * Before Aronson, Acting P.J., Ikola, J., and Thompson, J.