(Oakland, CA March 3, 2015) Much goes into the art of judging. Judges have to listen well. They have to bite their tongue far more often than good ones let on. They have to know the law. They have to know the limits of their discretion. They exercise judgment. They check their feelings and make tough calls even when they know decisions made in their courtrooms can profoundly impact lives. They exercise restraint all day long. They sift through far more cases than many people realize. They have to honor the schedules of counsel and other professionals, including investigators and experts, coming through the courtroom.
Given the amount and complexity of the work crossing their benches and the huge impact their decisions sometimes have on lives, it must be tempting for some of them to take short cuts now and then. Short cuts can save work, save a schedule, or even spare a judge some of the guilt of making an impactful decision.
The Fourth District Court of Appeal recently issued a rebuke of sorts to a trial court for taking one such shortcut. The case is Andrew V. v. Superior Court, G051310 (4th Dist., January 23, 2015).
In Andrew V. v. Superior Court, the trial court issued a "temporary" order allowing a mother to move from Orange County to Washington State to take a job promotion after a custody investigator issued a recommendation allowing the move-away. However, the investigator was not available to be cross-examined on the date of the hearing to adopt the recommendations. The trial court continued the hearing date. However, it temporarily allowed the children to move to Washington pending the hearing. As a practical matter, the order probably ensured a final judgment in favor of the mother at the continued hearing: few courts would on their own allow a move-away to new schools and new city only to take it back a few months later. Instead, they would likely find it is in the best interests of the children to continue the new status quo.
A move-away case can be as heart wrenching as any in family law. Because of their impact on the children and parents alike, courts must review the situation de novo based on the best interests of the children in light of all of the factors if the two parents have joint physical custody. While a child-custody investigator often makes recommendations, both parents are entitled to a trial and have an express right to cross-examine the investigator. The decision is stayed for 30 days to allow for appellate review.
After the issuance of this "temporary" move away order, the father filed a writ petition. Granting the petition, the Fourth District reversed the trial court and took the unusual step of ordering the children back to California from what they probably thought was their new home. In granting the petition, the appellate court reasoned in part:
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.
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We cannot sanction such a de facto move-away. . . “[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.” (
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 . . . 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.
The Fourth District seems to have correctly decided the law. Its decision should serve as a reminder to a large number of courts and divorce professionals throughout the state that short-cuts involving important rights simply cannot be taken.
Still, in making an example of the situation for others to learn from, the children in Andrew V. have paid one helluva price. Returned from Washington after believing they were moving there permanently, they face the uncertain prospects of yet another court battle. For this reason, one can only observe that the process as a whole has failed them miserably.
John Claassen is an experienced litigator. He practices throughout California from the offices of Claassen, P.C. in Oakland, California. For more information about his firm, please click here. While this blog entry is published for informational purposes, portions of this blog post may constitute "communications" within the meaning of California Rule of Professional Conduct 1-400. Thus, as a possible "Advertisement" it is not intended to constitute legal advice. Similarly, no statement made in this blog post is intended as a guarantee, warranty, or promise about the outcome of any litigation matter taken on by the firm. This Advertisement is not intended for any matter that would require the rendition of legal services outside of the State of California or under the laws of any jurisdiction outside of the State of California. Copyright 2015. All rights reserved.