H045348 H046071 H046644
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Santa Clara County Super. Ct. No. 2014-1-FL-169508)
In this marital dissolution proceeding, the trial court issued orders granting Respondent Anh Dao Nguyen (Mother) temporary sole legal and physical custody of the children she shares with Appellant Mike Van (Father). Mother subsequently asked the court's permission to move with the children to New Jersey, over Father's objection. Following a custody evaluation completed by Family Court Services (FCS), and a subsequent trial, the court adopted the evaluator's recommendations, awarding Mother sole physical custody of the children with the right to establish the children's residence in New Jersey. In doing so, the trial court incorrectly applied Family Code section 7501 and related case authority to find Mother had a presumptive right to move, such that the court required Father to prove the children would suffer detriment as a result of the move. However, the custody orders in place prior to the March 2017 trial were temporary in nature; the presumptive right of section 7501 was thus inapplicable. The trial court abused its discretion by requiring Father to prove detriment to the children. Accordingly, we will reverse the March 2017 order.
All undesignated statutory references are to the Family Code.
After the trial court granted Mother's request to move with the children to New Jersey, Father filed several requests to modify that order, all of which the court denied. Father has appealed those rulings as well. As we are reversing the underlying custody order, those subsequent orders are now nonappealable as well as moot, and thus subject to dismissal.
On September 10, 2019, we ordered docket numbers H046071, concerning the order issued May 2, 2018, and H046644, concerning the order issued September 26, 2018, to be considered with docket number H045348, concerning the March 17, 2017 order, for purposes of oral argument and disposition. Father has also commenced an appeal of an order issued November 19, 2018 (docket No. H046427); that appeal is not yet fully briefed, and thus is not yet ripe for consideration in this opinion. We will issue a separate order to show cause in that matter as to why that appeal should not be dismissed as moot given the disposition in the instant opinion. (See § II(C), post.)
I. FACTUAL AND PROCEDURAL BACKGROUND
In October 2014, Mother filed a petition for dissolution asking for joint legal and sole physical custody of the parties' two children, a son and a daughter; she amended the petition twice, but did not change the terms of her request for custody. When she filed the first amended petition in November 2014, Mother also filed a separate request for orders seeking, among other things, joint legal and sole physical custody of the children. Shortly thereafter, Father responded to the petition for dissolution, seeking joint legal and sole physical custody of the children; he filed a subsequent response in March 2016 seeking joint legal and physical custody.
To protect the privacy of the children, we refer to them as "son" and "daughter."
In November 2014, Father submitted an ex parte request for emergency orders regarding custody of the parties' daughter, alleging Mother and her parents were not allowing him physical custody of, or visitation with, the child; the court denied the request for temporary orders pending the hearing. In response, Mother asked for physical custody of both children and suggested the court order the parties to mediation to develop a visitation schedule.
The court conducted a hearing on both parties' pending requests on January 14, 2015, at which time it ordered the parties to an emergency screening the next day. FCS conducted the screening; after a hearing regarding the FCS recommendations, the trial court issued a "Temporary Order of the Court," "temporarily" granting Mother sole legal and physical custody of the children, with Father to have "visitation supervised by a professional agency." The court also ordered Father to complete a 16-week "Conflict and Accountability class." Attached to the written order are two pages of a form entitled "Domestic Violence Attachment to Minutes"; at the top of the form, the court crossed out the words, "Domestic Violence Attachment to Minutes" and handwrote in "For Best Interests of Children." The court then checked boxes indicating it issued "personal conduct" and "stay-away" orders, which require the "restrained person" to stay a specified distance from the "protected persons," and preclude the "restrained person" from "harass[ing], attack[ing], strik[ing], threaten[ing] assault (sexually or otherwise), hit[ting], follow[ing], stalk[ing], molest[ing], destroy[ing] personal property, disturb[ing] the peace, keep[ing] under surveillance, or block[ing] movements of Protected Person(s)." The order does not identify the restrained person or the protected persons, except to include the parties' children as "Other Protected Person(s)" in the stay-away order. The court checked the box indicating the restrained person cannot own, purchase, or possess firearms, and must sell or turn in any firearms he or she possesses.
Superior Court of Santa Clara County, Local Family Rules of Court, rule 2(C)(6)(a) provides the emergency screening procedure for the swift determination of appropriate court orders when the court is concerned about child safety: "In any case in which an emergency exists, the Court may order a staff member of FCS, other than the mediator, to conduct an 'emergency screening' (a preliminary and limited investigation), to make recommendations regarding the temporary custody, visitation, and related conditions for the minor children." The parties may stipulate to the recommendations or the trial court may conduct a hearing to decide whether to adopt the recommendations as a temporary order. (Sup. Ct. Santa Clara County, Local Fam. Rules, rule 2(C)(6)(b) and (c).)
Father did not include the reporter's transcript from the January 15, 2015 hearing as part of the record on appeal. In Appellant's Opening Brief, Father indicates he was the restrained party in this order.
Father filed requests to modify the temporary custody orders in February and April 2015. In June 2015, the court ordered the parties to a judicial custody conference (JCC), at which, among other things, the court modified visitation so that Father could have non-professionally supervised visits with the children; it left the custody orders in place. In August, the court ordered the parties to mediation with FCS to "go over" their custody and visitation issues.
Superior Court of Santa Clara County, Local Family Rules of Court, rule 2(C)(2) provides for a JCC when parties fail to reach full agreement at mediation; it is comprised of judicially supervised mediation and a status conference, and is required before the court sets a custody dispute for trial.
In September 2015, Mother obtained a temporary restraining order against Father; the court included the children as protected persons. The court issued the order on Judicial Council form DV-110, Temporary Restraining Order (CLETS-TRO) (Domestic Violence Prevention). The court issued temporary personal conduct and stay-away orders to protect Mother and the children, but allowed for brief and peaceful contact between Mother and Father, and peaceful contact between Father and the children, "as required for court-ordered visitation of children . . . ." The order precluded Father from possessing firearms. It also gave Mother exclusive use, possession, and control of the family residence. In her request for the orders, Mother indicated she filed the request in order to ensure the restraining orders the court issued in January 2015 were "CLETS" orders she could show to the police department if necessary, as she claimed the court told her the January 2015 order was not a CLETS order.
Under section 6380, upon issuance of a protective order pursuant to the Domestic Violence Prevention Act (§ 6200 et seq.) (DVPA), and other statutes governing protective orders, certain data must be transmitted to the Department of Justice "through the California Law Enforcement Telecommunications System (CLETS) . . . ." (§ 6380, subds. (a) & (b).) When issued pursuant to the DVPA, such orders are often referred to as domestic violence restraining orders. The January 2015 order does not set forth the statutory basis for the court's protective orders; presumably, the court later determined it did not issue the January orders pursuant to the DVPA.
At the hearing on Mother's request in November 2015 for domestic violence restraining/CLETS orders, the trial court granted a one-year restraining order, finding Mother met her burden of proving that abuse had occurred; the court noted its current custody and visitation orders remained in effect. Although the court did not specify the date of the "current" orders, the record indicates the most recent orders were the custody orders issued in January 2015, and the visitation orders issued in June 2015. The court made a "Family Code §3044 finding" as to Father. Although the minute order does not provide additional detail about this finding, the context within which the court issued the order suggests the trial court, having found that Father had committed domestic violence, found applicable to Father the presumption under section 3044 that an award of joint or sole physical or legal custody of a child to a person who has committed domestic violence is detrimental to the best interest of the child. However, the court also determined that the finding was "rebutted in the best interest of the child(ren)."
Specifically, at the time of the hearing in November 2015, section 3044 provided, in relevant part, "Upon a finding by the court that a party seeking custody of a child has perpetrated domestic violence against the other party seeking custody of the child or against the child or the child's siblings within the previous five years, there is a rebuttable presumption that an award of sole or joint physical or legal custody of a child to a person who has perpetrated domestic violence is detrimental to the best interest of the child, pursuant to Section 3011. This presumption may only be rebutted by a preponderance of the evidence." (Stats. 2003, ch. 243, § 1.)
Shortly after the court granted the restraining order, Father filed another request to modify custody and visitation, alleging Mother was violating the court's prior orders regarding his visitation and their son's school enrollment. Specifically, Father asked for a new plan "that helps me to support my children effectively while I wait for my permanent, joint physical custody of the children ...." The court ordered the parties to attend mediation, and thereafter referred them to a JCC in April 2016. Before the court held that conference, Father filed another request to modify custody in February 2016; he alleged Mother did not comply with the court's orders regarding visitation or scheduling mediation, and was not providing proper academic support to the parties' son.
Prior to the scheduled April 2016 JCC, Mother filed a request to move with the children to New Jersey. In support of her request, Mother argued she had a right to change the children's residence under section 7501, subdivision (a), based on the best interests of the children under section 3040, subdivision (c). Mother contended the Supreme Court's ruling in In re Marriage of Burgess (1996) 13 Cal.4th 25, 28-29 (Burgess), allowed her to relocate without requiring her to show that the relocation was necessary. She further alleged Father had the burden to show relocation would cause the children detriment, citing In re Marriage of LaMusga (2004) 32 Cal.4th 1072, 1078 (LaMusga). She then addressed the factors she believed the court must consider, as set forth in LaMusga. Father opposed Mother's request to move with the children, alleging the move was not in the children's best interest.
At the JCC in April 2016, the court indicated its intent to appoint minors' counsel for the children; in May, it appointed Morris Bisted to represent the children and ordered the parties to participate in mediation regarding Mother's move-away request. The parties did not reach an agreement at mediation, resulting in the court holding another JCC in August, at which the trial court ordered the parties to participate in a custody evaluation with FCS. In December 2016, FCS completed the evaluation and served its recommendations that Mother be allowed to move with the children to New Jersey; Father objected to the recommendations within the time allotted. The court set a bench trial on the custody and visitation issues for March 2017.
Under section 3111, "[i]n any contested proceeding involving child custody or visitation rights, the court may appoint a child custody evaluator to conduct a child custody evaluation in cases where the court determines it is in the best interests of the child." (§ 3111, subd. (a).) California Rules of Court, rule 5.220 sets forth the procedure and scope of a court-ordered child custody evaluation.
Prior to trial, Father, Mother, and minors' counsel submitted trial briefs to the court. In their briefs, the parties and minors' counsel set forth the factual bases for their requests; Mother and minors' counsel asked the court to adopt the FCS recommendations and allow the children to move to New Jersey, while Father asked the court to deny Mother's request and grant him physical custody of the children. Neither Mother nor Father cited legal authority in their pre-trial briefs. As Mother did in her request to move with the children, minors' counsel cited section 7501, Burgess, and LaMusga to argue that the custodial parent has a right to relocate with the children, and the noncustodial parent has the burden to show the proposed relocation would cause detriment to the children.
The trial court's register of actions indicates only Father filed his brief with the court. Father designated unfiled copies of the briefs Mother and minors' counsel provided in the appendices he filed in docket numbers H046071 and H046644.
At trial on March 17, 2017, the court heard testimony from Mother and Father, as well as Caitlin MacCalla, the FCS evaluator, and Father's sister, who served as the non-professional supervisor of his visitation with the children. During minors' counsel's examination of Father, he asked Father to explain the ways in which Father believed it would be a detriment to the children to move from San Jose to New Jersey. Following Father's response, minors' counsel and the court engaged in the following discussion:
"MR. BISTED: So, Your Honor, I'd ask for a ruling from the Court. I'm just trying to figure out what I need to get to, whether there's been an establishment of detriment for the move, and because it's a two phase.
"THE COURT: So isn't the analysis, since there is no permanent custody order, isn't it the best interest of the children and it's Father's obligation to prove detriment?
"MR. BISTED: Right. And then if not, then you have—if he makes that then we have to go through a further analysis.
"THE COURT: So I think the issue of detriment to the children has been covered.
"MR. BISTED: Okay. All right, with that as for cross-examination or for exploring of that, I'd like to leave it with the proviso that I can come back if need be."
Upon the close of evidence, the court took the matter under submission, then issued an oral ruling from the bench. At the outset of its ruling, the court stated, "under the case of the Marriage of Burgess and Family Code section 7501, the custodial parent has a presumptive right to move and the Court then needs to look at the factors under the LaMusga case ... 2004, 32 Cal.4th 1072. And consider the move-away factors." (Italics added.) After discussing several of the factors cited in LaMusga, the court ruled, "Based on what the Court heard and the testimony the Court heard, the Court believes that it is in the best interest of these children that they be permitted to move to New Jersey with Mom. The Court is unable to find that the move will be to the children's detriment within the legal meaning of that. Although it would be difficult for Dad and it will be hard for him to continue maintaining his relationship, the Court believes that if the orders that were recommended by Ms. MacCalla are followed, that that goal will be met."
The court adopted the evaluator's recommended orders as orders of the court, awarding the parties joint legal custody of the children, with Mother to have sole physical custody and the right to establish a residence for the children in New Jersey. The court set a visitation schedule for Father, both pending the move to New Jersey and once Mother and the children moved. It confirmed that the orders were "final" or "long term" custody orders, modifiable only by a "significant change in circumstances" or written stipulation of the parties, adding, "[w]ilful [sic] lack of compliance may be considered a significant change in circumstances." The court set a review hearing in November 2017 to evaluate compliance with the orders.
Father noticed his appeal of the March 17, 2017 order on March 22, 2017, within the time allotted by California Rules of Court, rule 8.104(a) ; we designated the appeal as docket number H045348. In May 2017, he filed an ex parte request in the trial court seeking a stay of the March 17, 2017 order pending his appeal, alleging Mother moved the children to New Jersey at the end of April without notifying Father beforehand. The trial court denied his request, noting that the automatic stay of Code of Civil Procedure section "918.7" expired prior to Mother's move, and the court declined to exercise its jurisdiction to stay the order.
The March 17, 2017 order is appealable under Code of Civil Procedure section 904.1, subdivision (a)(14), as it is a "final order ... in a bifurcated proceeding regarding child custody or visitation rights."
Although the copy of the request included in Father's appendix on appeal states an endorsed-filed date of April 4, 2017, the register of actions provided by the trial court lists a filing date of May 4, 2017; the court signed the temporary orders issued with the request on May 3 and May 4, 2017.
The reference to section 918.7 appears to be a typographical error. Under Code of Civil Procedure section 917.7, the March 17, 2017 order was automatically stayed for a period of 30 calendar days from the entry of the order because it allowed Mother to relocate the children outside of California. The statute gives the trial court discretion to extend the stay.
Prior to the scheduled review hearing, Father filed a declaration alleging Mother failed to fully comply with the March 17, 2017 order; he asked for an order allowing his son to move back to California to live with Father, as well as for orders requiring Mother to provide him with certain information as required by the March 2017 order. At the hearing in November 2017, the court ordered the existing custody orders to remain in effect, with certain modifications related to booking travel and for providing information to Father, and set a further review hearing for February 2018. Approximately two weeks later, Father filed another ex parte request to modify custody and visitation, alleging Mother was not honoring the March 17, 2017 order as it pertained to Father's visitation during the Christmas holiday, and was not following other portions of the court's order; at the hearing, the court made additional orders pertaining to the Christmas visitation. Eleven days later, Father filed another ex parte request, alleging Mother was not sufficiently complying with those orders. In February 2018, the court addressed the issues raised in that request at its second review following the March 2017 order, setting a third review hearing for May 2018.
On March 19, 2018, Father filed a request to modify the March 17, 2017 order, seeking joint legal and physical custody of the children, based on his allegations that Mother failed to comply with the order, failed to facilitate his visitations with the children, and failed to properly care for the children in New Jersey. Mother opposed Father's request, denying his allegations. At the hearing on May 2, 2018, the trial court ordered the parties to mediation, stating, the "Court does not find good cause to deviate from what the law requires"; the court authorized Mother to appear telephonically "unless [FCS] determines she must be personally present." Father filed a notice of appeal for this order on May 7, 2018; we designated the appeal as docket number H046071.
Section 3170, subdivision (a)(1) provides, "If it appears on the face of a petition, application, or other pleading to obtain or modify a temporary or permanent custody or visitation order that custody, visitation, or both are contested, the court shall set the contested issues for mediation." (Italics added.)
At the third review hearing on May 18, 2018, the trial court reiterated its order that the parties attend mediation; it also made orders regarding Father's summer and winter break visits. Prior to the date scheduled for mediation, Father filed yet another request to modify custody and visitation, alleging Mother was delegating her duty to care for the children to her mother, who Father claimed did not have sufficient ability to properly care for the children. The court scheduled a JCC for October 2018. At the hearing on Father's request on September 26, 2018, the trial court heard from Father and minors' counsel on the issues of custody and visitation. Finding no change in circumstances, the court denied Father's request, noting that there are permanent custody orders in place and mother has moved to New Jersey with the children. On September 27, 2018, Father filed notice of his appeal of the September 26 order; we designated the appeal as docket number H046644.
Based on its September 26, 2018 order, the trial court took the October 2018 JCC off calendar. Although Father designated the September 26, 2018 order as the order from which he was appealing, he attached the October 1, 2018 order taking the JCC off calendar to the Civil Case Information Sheet he filed in docket number H046644.
Father filed an additional request to modify custody and visitation on October 9, 2018, again asking the court to award him joint physical custody of the children based on allegations that Mother was not properly caring for the children in New Jersey. At a hearing on November 19, 2018, the court denied Father's request, noting, "The court has made permanent orders and will not relitigate mother's move to New Jersey." The court found no change in circumstances supporting Father's request. Father filed notice of his appeal of this order on November 26, 2018; we designated the appeal as docket number H046427.
Father is representing himself in all the appeals referenced herein, as he did in the trial court. Mother has not filed responsive briefs in the three appeals adjudicated in this opinion, despite having received proper notice of each. (Docket nos. H045348, H046071, and H046644.)
A. March 17 , 2017 Order
Father argues the trial court erred in issuing the March 17, 2017 order allowing Mother to move with the children to New Jersey, alleging the trial court did not consider Father's presumptive rights, did not properly consider the children's best interests, and improperly applied relevant laws, most notably by placing a burden on Father to show that the move would cause detriment to the children. As the orders issued prior to March 2017 granting Mother sole physical custody of the children were temporary orders, we agree the trial court erred in placing a burden on Father to show detriment, and thus must reverse the order accordingly and remand to the trial court to apply the proper legal standard.
1. Standard of Review
We commence by determining the applicable standard of review. Father argues this court should "conduct a de novo review under the abuse of discretion standard," considering the matter anew as if no previous order had been entered. In support of his position, he cites several Federal cases, none of which addresses the standard of review of a custody order issued under California law.
Under California law, we review custody and visitation orders under the abuse of discretion test, measuring "whether the trial court could have reasonably concluded that the order in question advanced the 'best interest' of the child[ren]. We are required to uphold the ruling if it is correct on any basis, regardless of whether such basis was actually invoked. [Citation.]" (Burgess, supra, 13 Cal.4th at p. 32.) While the standard of review we apply is deferential, we give thoughtful consideration to the reasons for the court's order. "Generally, a trial court abuses its discretion if there is no reasonable basis on which the court could conclude its decision advanced the best interests of the child[ren]. [Citation.] However, ... if a trial court's decision is influenced by an erroneous understanding of applicable law or reflects an unawareness of the full scope of its discretion, it cannot be said the court has properly exercised its discretion under the law. [Citations.] Therefore, a discretionary order based on the application of improper criteria or incorrect legal assumptions is not an exercise of informed discretion and is subject to reversal even though there may be substantial evidence to support that order. [Citations.] If the record affirmatively shows the trial court misunderstood the proper scope of its discretion, remand to the trial court is required to permit that court to exercise informed discretion with awareness of the full scope of its discretion and applicable law. [Citations.] The appellant bears the burden of showing a trial court abused its discretion. [Citation.]" (F.T. v. L.J. (2011) 194 Cal.App.4th 1, 15-16 (F.T.).)
2. General Legal Principles
Under section 3040, subdivision (c), the trial court has "the widest discretion to choose a parenting plan that is in the best interest of the child[ren]," when making initial custody orders. (Burgess, supra, 13 Cal.4th at p. 31.) Section 3011 sets forth factors the court must consider in determining the best interest of the children, including "[t]he health, safety, and welfare of the child," a history of abuse by one parent against a related child or the other parent, and "[t]he nature and amount of contact with both parents," as well as "any other factors it finds relevant . . . ." (§ 3011, subds. (a), (b)(1), & (c); Burgess, at p. 32.) The trial court can award custody "to both parents jointly ... or to either parent"; where the court orders custody to one parent, the court must also consider "which parent is more likely to allow the frequent and continuing contact with the noncustodial parent." (§ 3040, subd. (a)(1).) "It is always a difficult task for a trial judge to make a custody determination, but the degree of difficulty increases significantly when one parent decides to move to a distant location and seeks to relocate the child[ren]." (Niko v. Foreman (2006) 144 Cal.App.4th 344, 362 (Niko).) "A custody decision allowing one parent to move the children out of the state necessarily interferes with the other parent's ability to have frequent and continuing contact with them" and " 'is one of the most serious decisions a family law court is required to make.' " (In re Marriage of Seagondollar (2006) 139 Cal.App.4th 1116, 1119.)
At the time the Supreme Court issued its opinion in Burgess, subdivision (b) of section 3040 discussed the court's wide discretion. That provision has since been renumbered to section 3040, subdivision (c). (Stats. 2012, ch. 845, § 1.)
To determine the legal standard applicable when a parent seeks to relocate with the children, the trial court must consider whether there is a final judicial custody determination in place, or if the current custody order is temporary. Where the custody order constitutes a final judicial determination, the legal standard to be applied to a parent's move-away request depends on whether the relocating parent has sole or joint physical custody at the time of the request. A parent with sole physical custody has a presumptive right to move with the children, "subject to the power of the court to restrain a removal that would prejudice the rights or welfare of the child[ren]"; the custodial parent does not have to show that the move is "necessary." (§ 7501, subd. (a); LaMusga, supra, 32 Cal.4th at p. 1078; Burgess, supra, 13 Cal.4th at pp. 37-38.) The noncustodial parent bears the burden to show the move would be detrimental to the children, an off-shoot of the "changed circumstances" rule that generally applies when a party seeks to modify a permanent custody order. (LaMusga, at pp. 1079, 1088; Burgess, at pp. 37-38.) Once he or she does so, the court undertakes the "delicate and difficult task of determining whether a change in custody is in the best interest of the children." (LaMusga, at p. 1078.)
" 'Sole physical custody' means that a child shall reside with and be under the supervision of one parent, subject to the power of the court to order visitation." (§ 3007.) "Joint physical custody" affords each parent "significant periods of physical custody," shared in "such a way so as to assure a child of frequent and continuing contact with both parents . . . ." (§ 3004.)
In contrast, if the parties share joint physical custody under a final order, the relocating parent does not have a presumptive right to move, and the other parent does not have to show detriment to change the custodial arrangement; the court instead reviews de novo what physical custody arrangement is in the best interest of the children. (Burgess, supra, 13 Cal.4th at p. 40, fn. 12; Niko, supra, 144 Cal.App.4th at pp. 363-364.)
Where there is no final judicial custody determination, the presumptive right to move under section 7501 does not apply, nor does the changed circumstance rule; neither parent must show that the proposed move would be detrimental to the children. (F.T., supra, 194 Cal.App.4th at pp. 19-20; Keith R. v. Superior Court (2009) 174 Cal.App.4th 1047, 1054 (Keith R.).) Instead, the court must evaluate de novo what physical custody arrangement would be in the children's best interest, in light of the proposed move. (F.T., at p. 22; Mark T. v. Jamie Z. (2011) 194 Cal.App.4th 1115, 1124.)
In F.T., the father sought to move out of state with the parties' child, based on a prior stipulated court order giving him primary physical custody of the child, issued " 'without prejudice to either party.' " (F.T., supra, 194 Cal.App.4th at pp. 7-8.) Applying the "best interest[s]" standard, the trial court denied his request, finding the move was not in the child's best interest. (Id. at pp. 13-14.) On appeal, the father argued the trial court erred in applying the best interest standard, contending instead the court should have recognized his presumptive right to change the child's residence under section 7501. (Id. at p. 18.) The appellate court affirmed the trial court's ruling, determining the stipulated custody order did not constitute a "final judicial custody determination" under the relevant legal standards. (Id. at p. 19.) "Neither the stipulation nor the order included any clear language affirmatively showing it was the intent of Mother and Father that the order adopting their stipulation constitute a final judicial custody determination. (Montenegro [v. Diaz (2001)] 26 Cal.4th [249, 257-258].) Nowhere in the stipulation or order do the words 'final,' 'permanent,' or 'judgment,' or words to that effect, appear. On the contrary, by using the qualifying language 'without prejudice to either party,' the stipulation appeared to express the parties' intent that the stipulated order be only temporary and subject to change and not be deemed a final judicial custody determination. (Ibid.)" (F.T., at p. 19.) Absent a final judicial custody determination, the Court of Appeal found the presumption of section 7501 did not apply. (Id. at p. 20.)
We thus consider whether the parties were subject to a temporary or final custody order at the time Mother's request to relocate with the children was adjudicated by the trial court.
3. The Court Erred in Requiring Father to Show Detriment
On its face, the court's January 2015 order granting Mother sole legal and physical custody of the children was temporary. The trial court explicitly affirmed it was issuing a "Temporary Order of the Court," stating "Mother shall temporarily have sole legal custody of the minor children," and "Mother shall temporarily have sole physical custody of the minor children." (Italics added.) The January 2015 order was not a final judicial custody determination that would invoke the presumptive right under section 7501. Such a determination would include "clear language affirmatively showing" the court's intent that the order is final, such as using the words "final," "permanent," or "judgment." (Montenegro v. Diaz, supra, 26 Cal.4th at pp. 257-259 (Montenegro); F.T., supra, 194 Cal.App.4th at p. 19.)
In Montenegro, one of the custody orders at issue, while including the words " 'for judgment,' " also contained a notice stating " '[t]his order, although temporary, shall remain in effect until further order of Court,' " casting doubt on the finality of the judgment. (Montenegro, supra, 26 Cal.4th at p. 259.) By comparison, the January 2015 order in the instant matter does not include any reference to "judgment" but contains several references to the temporary nature of the orders contained therein. Similarly, much as the use of the phrase "without prejudice to either party" reflected the parties' intent in F.T. that the order was "only temporary and subject to change" (F.T., supra, 194 Cal.App.4th at p. 19), the language of the January 2015 order here expressed a clear intent that the order was to be temporary pending further proceedings. Certainly Father considered it a non-final order. After the trial court issued the November 2015 domestic violence restraining order, Father asked for modification of custody, "while [he] wait[ed] for [his] permanent, joint physical custody of the children." Moreover, the language of the January 2015 order reflects the general nature of the Superior Court of Santa Clara County's emergency screening process, meant to provide "recommendations regarding the temporary custody, visitation, and related conditions for the minor children" in cases "in which an emergency exists." (Sup. Ct. Santa Clara County, Local Fam. Rules, rule 2(C)(6)(a), italics added.)
The issuance of the CLETS restraining order in November 2015 also did not serve to render the custody and visitation orders incorporated therein final or permanent. "There are important policy reasons why domestic violence orders should not be treated as the functional equivalent of final judicial custody determinations. Domestic violence orders often must issue quickly and in highly charged situations. The focus understandably is on protection and prevention, particularly where the evidence concerning prior domestic abuse centers on the relationship between current or former spouses. Treating domestic violence orders as de facto final custody determinations would unnecessarily escalate the issues at stake, ignore essential factors (such as the children's best interest) and impose added costs and delays. It also may heighten the temptation to misuse domestic violence orders for tactical reasons." (Keith R., supra, 174 Cal.App.4th at p. 1056.) We therefore conclude at the time of the trial regarding Mother's request to move out of state with the children, the operative custody and visitation orders were temporary, not final or permanent.
Clearly, at the March 17, 2017 trial, the court recognized that the orders in place prior to the hearing were not "permanent" orders—it said so on the record. Yet, the trial court and the attorneys representing Mother and the children believed Mother had a presumptive right to move with the children, and Father had to show the move would be detrimental in order to overcome that right. Mother so argued in her written request for the move-away order. Minors' counsel repeated the argument in his pre-trial brief. Most importantly, the trial court stated on the record that it believed Mother had a presumptive right to move, and that Father had the burden to show detriment.
By requiring that Father prove detriment, the trial court did not apply the correct legal standard when it granted Mother's request to move the children to New Jersey. "[I]f a trial court's decision is influenced by an erroneous understanding of applicable law or reflects an unawareness of the full scope of its discretion, it cannot be said the court has properly exercised its discretion under the law." (F.T., supra, 194 Cal.App.4th at p. 25.) Although the court did make findings regarding the children's best interest, we cannot determine from the record the effect its erroneous understanding of the applicable law had on its ruling. We therefore are compelled to find the trial court abused its discretion.
In making this determination, we are careful to note that the trial court did not err in other ways asserted by Father when it issued its order. For instance, Father believes the trial court erred not only in finding Mother had a presumptive right to move with both children, but also in failing to consider his own presumptive right as the primary custodial parent of the parties' son prior to the January 2015 temporary orders. But there were no custody orders in effect prior to the January 2015 temporary orders, and thus there was no final custody determination placing custody of the parties' son with Father. Just as Mother did not have presumptive rights, neither did Father.
Father did not cite any legal authority in support of this argument, such that he arguably waived this claim. (Cal. Rules of Court, rule 8.204(a)(1)(B); Cahill v. San Diego Gas & Electric Co. (2011) 194 Cal.App.4th 939, 956.) However, for the benefit of the trial court and parties on remand, we address the issue.
Father also avers that the trial court erred in applying the factors set forth in LaMusga to evaluate the children's best interest. In LaMusga, the California Supreme Court set forth an analytical framework for move-away requests made after a final judicial custody determination granting one parent primary physical custody is in effect. (LaMusga, supra, 32 Cal.4th at pp. 1080-1081.) The Supreme Court indicated that once the trial court finds the noncustodial parent met his or her burden to show the proposed move will cause detriment, the trial court then has "discretion . . . to order a change of custody based upon such detriment, if such a change is in the best interests of the children in light of all the relevant factors." (Id. at p. 1095.) The Supreme Court then set forth "factors that the [trial] court ordinarily should consider when deciding whether to modify a custody order in light of the custodial parent's proposal to change the residence of the child . . .: the children's interest in stability and continuity in the custodial arrangement; the distance of the move; the age of the children; the children's relationship with both parents; the relationship between the parents including, but not limited to, their ability to communicate and cooperate effectively and their willingness to put the interests of the children above their individual interests; the wishes of the children if they are mature enough for such an inquiry to be appropriate; the reasons for the proposed move; and the extent to which the parents currently are sharing custody." (Id. at p. 1101.)
While the burden placed on the noncustodial parent to show the proposed move will cause detriment established in LaMusga is applicable only when a parent requests an order authorizing relocation of the children after a final custody order is in place, the factors enumerated in LaMusga are not so limited in application. The trial court has broad discretion to fashion initial permanent custody orders (§ 3040, subd. (c)), and may consider not only the specifically enumerated factors of section 3011, but also "any other factors it finds relevant." (§ 3011.) The factors listed in LaMusga are certainly as relevant when the trial court is making initial permanent custody orders as they are when the trial court is considering modification of final or permanent custody orders; they identify specific, important, but commonsense considerations for judges who are called on to decide whether a parent should be allowed to relocate the residence of a child in a way that will disrupt the relationship the child has with the left behind parent. It was thus wholly appropriate for the trial court to consider the LaMusga factors as part of its evaluation of the children's best interest, and the court did not commit error in doing so. The court's error was in applying the incorrect legal standard by presuming that Mother had the right to move with the children and holding Father to the burden of proving the move detrimental to the children.
We reverse the March 17, 2017 move-away order, and remand for the trial court to reconsider Mother's move-away request under the correct legal standard. On remand, the court should conduct a hearing to issue initial permanent custody orders. In that context, the court should evaluate Mother's move-away request de novo, considering whether relocating with Mother would serve the children's best interest. In making that determination, the court should address the factors set forth in section 3011. In any further proceedings, the court should also consider events that transpired after the March 17, 2017 order in evaluating the children's best interest. Because this case involves disputed facts and the exercise of the trial court's discretion, we do not intend to dictate or suggest any particular outcome on remand. (F.T., supra, 194 Cal.App.4th at p. 28, fn. 14; Keith R., supra, 174 Cal.App.4th at p. 1057.) Any custody and visitation orders currently in place shall remain in place temporarily pending further order from the trial court, or written agreement of the parties.
With respect to the March 17, 2017 order, Father alleges the trial court did not consider the written objections he filed to the FCS evaluator's recommended orders. He also argues the trial court erred in allowing the FCS evaluator to testify at the March 17, 2017 trial, claiming it violated Superior Court of Santa Clara County, Local Family Rules of Court, rule 2(B)(4) and 2(B)(5). He argues that the trial court erred when it considered the trial brief that minors' counsel filed prior to the trial. As we are reversing the trial court's order, we do not reach these issues.
B. Father Did Not Timely Raise Arguments About His Fifth Amendment Rights
In his appeal of the March 17, 2017 order, Father argues the trial court violated his Fifth Amendment rights when it issued "the second temporary restraining order," by punishing him twice for the same offense, which he claims was improperly storing firearms in the home. He cites the restraining orders issued January 15, 2015, as the "first punishment"; he cites the "second temporary restraining order with the children issued by Judge Rudy on [January 22, 2016] with additional supervised child visitation" as the "second punishment." Father did not include any orders issued January 22, 2016 as part of the record on appeal. The trial court's register of actions reflects a "Restraining Order After Hearing" filed on that date. Presumably, this filed order reflects the domestic violence restraining orders the trial court issued on the record on November 2, 2015; Father included the minute order from that hearing as part of the record on appeal. Thus, we read Father's arguments as a separate appeal of the domestic violence restraining orders, rather than as part of his appeal of the March 17, 2017 custody order authorizing Mother to relocate with the children out of state.
"There are no unique jurisdictional time limits for appeals from domestic violence restraining orders. As with other appeals, there is a 60-day time limit for restraining orders which are properly served, either through a notice of entry of judgment, or through service by the clerk or party of a file-stamped copy of the order. (Cal. Rules of Court, rule 8.104(a).) Otherwise, the outside 180-day filing limit applies." (In re Marriage of Lin (2014) 225 Cal.App.4th 471, 473 (Lin).) Appellate time limits are jurisdictional; "we strictly construe statutes and rules concerning the time in which to file a notice of appeal. [Citation.]" (Id. at p. 474.) "Except as provided in rule 8.66, no court may extend the time to file a notice of appeal. If a notice of appeal is filed late, the reviewing court must dismiss the appeal." (Cal. Rules of Court, rule 8.104(b).)
Here, the record does not reflect when or if Father was served with the written orders following the November 2015 hearing, at which he was present. Father represents that the court memorialized the orders made on the record on November 2, 2015, in a written order issued January 22, 2016; the court's register of actions does indicate the court filed a "restraining order after hearing" on January 22, 2016, but Father did not include that order as part of the record on appeal. Applying the 180-day filing limit (Lin, supra, 225 Cal.App.4th at p. 473), we determine Father had to appeal the orders made November 2, 2015, no later than July 20, 2016, assuming the court did not issue the written order until January 22, 2016. As Father did not notice his appeal until March 22, 2017, his appeal of the orders made on the record on November 2, 2015, is not timely. Nothing in the record on appeal indicates rule 8.66 applies in the instant matter. We therefore must dismiss the appeal as it relates to the domestic violence restraining orders. (Hollister Convalescent Hosp., Inc. v. Rico (1975) 15 Cal.3d 660, 666-667; Estate of Hanley (1943) 23 Cal.2d 120, 123.)
"If made necessary by the occurrence or danger of an earthquake, fire, or other public emergency, or by the destruction of or danger to a building housing a reviewing court, the Chair of the Judicial Council, notwithstanding any other rule in this title, may: [¶] (1) Extend by no more than 14 additional days the time to do any act required or permitted under these rules; or [¶] (2) Authorize specified courts to extend by no more than 30 additional days the time to do any act required or permitted under these rules." (Cal. Rules of Court, rule 8.66(a).)
C. Subsequent Orders
Father appeals the orders issued by the trial court on May 2, 2018, and September 26, 2018 (docket nos. H046071 and H046644). Given our reversal of the March 17, 2017 order, neither of these orders is now appealable, to the extent they were before. (Apex LLC v. Korusfood.com (2013) 222 Cal.App.4th 1010, 1015.) Moreover, as each appeal concerns Father's request to modify the March 17, 2017 order, these appeals are now moot and shall be dismissed accordingly.
To be appealable as an order after a judgment under Code of Civil Procedure section 904.1, subdivision (a)(2), postjudgment orders have to be final, rather than preliminary to later proceedings. (Lakin v. Watkins Associated Industries (1993) 6 Cal.4th 644, 653; In re Marriage of Olson (2015) 238 Cal.App.4th 1458, 1462.) The May 2, 2018 order is not, itself, final. It is preliminary to a later proceeding, in that it orders the parties to mediation, and thus not separately appealable even if the March 17, 2017 order remained intact. --------
As already noted, Father's appeal of the November 19, 2018 order (docket No. H046427) is not yet ripe for review. As it similarly concerns a request by Father to modify the now-defunct March 17, 2017 order, it too appears to be made moot by this opinion. We will issue a separate order to show cause in docket number H046427 as to why that appeal should not be dismissed as moot.
The March 17, 2017 order granting Mother sole physical custody of the children and the right to establish a residence for the children in New Jersey is reversed (docket No. H045348). The matter is remanded to establish initial permanent custody and visitation orders, and for reconsideration of Mother's request to relocate the children out of state. The court shall evaluate Mother's move-away request de novo, considering whether relocating with Mother would serve the children's best interest. In making that determination, the court shall address the factors set forth in section 3011. In any further proceedings, the court shall also consider events that transpired after the March 17, 2017 order in evaluating the children's best interest.
In the children's best interest, any current custody and visitation orders shall remain in place pending further order from the trial court, or written agreement of the parties. Pending a new final order from the trial court, to promote stability and minimize disruption in the children's life, the trial court may, in its discretion, allow the children to remain in Mother's physical custody pending ultimate resolution of her move-away requests.
Father's appeal of the domestic violence restraining orders issued on the record on November 2, 2015, and/or in writing on January 22, 2016 (included in docket No. H045348), is dismissed.
Father's appeals of the May 2, 2018, and September 26, 2018 orders (docket nos. H046071 and H046644) are dismissed.
In the interests of justice, each party shall pay his or her own costs on appeal.
Greenwood, P.J. WE CONCUR: /s/_________
Grover, J. /s/_________