California Court of Appeals, Fourth District, Third Division
Original proceedings; petition for a writ of mandate to challenge an order of the Superior Court of Orange County, No. 14FL000058 Debra C. Carrillo, Judge.
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Law Offices of Marjorie G. Fuller and Marjorie G. Fuller for Petitioner.
No appearance for Respondent.
Hagan & Associates, Cara J. Hagan and Shannon C. Williams for Real Party in Interest.
We issue a peremptory writ in the first instance because respondent court erroneously issued a modification order changing custody to the noncustodial parent, thereby requiring the minor children to move in the middle of the school year from their California home to the noncustodial parent’s home in
Alabama. Respondent court abused its discretion by failing to consider the relevant factors, including the children’s existing educational, physical, emotional and familial relationships with the custodial parent, and whether an out-of-state move-away would detrimentally affect their interests in continuity and stability.
Statement of Facts and Procedural History
Petitioner Jane J. (Mother) and real party in interest Christopher J. (Father) are the parents of two boys, an older son, born in the fall of 2002, and a younger boy, born in January 2006.
The couple separated in 2006 and divorced in October 2009. At the time of the divorce, Mother lived in Wisconsin, with the two children. Father was an active duty pilot in the military, stationed in Hawaii.
Mother and Father agreed to a marital settlement, which was approved by a Wisconsin family court commissioner. The parents agreed to joint legal custody, but because of the family’s “unique” situation, Mother was given 92 percent primary physical custody, with Father having 8 percent physical custody.
The agreement specifically recited that Father’s military duties in Hawaii made “visitations with the boys limited and difficult, ” stressing the need “to exercise flexibility as much as we are able.” “If [Father] has an opportunity to spend more time with the boys, it is encouraged. [Mother] will be as flexible as she is able at the time of the occurrence(s) enabling [Father] to spend more time with the boys.”
The marital settlement agreement was signed by the Wisconsin family court commissioner and filed with the La Crosse County circuit court on October 22, 2009. As subsequently recited by the Wisconsin family court commissioner, “[t]he Parenting Plan was Father’s plan and was signed by Mother.”
Following the dissolution, Father was deployed in a medevac unit in Iraq and Afghanistan. Father’s military assignments, including the three deployments to active military duty in the Middle East, “made it difficult for me to have the boys for their full summer breaks and only allowed me to have them when I was on vacation.” Time differences and Father’s military schedule combined to hamper his ability even to directly communicate with them.
In 2012, Mother and the children moved from Wisconsin to Orange County, where Mother was living with her fiancé. The Wisconsin court held a hearing and approved Mother’s move-away.
Father returned to the United States and received transfer orders to Fort Rucker in Alabama. Newly remarried, he relocated there in December 2013.
In January 2014, Father registered the October 2009 Wisconsin custody order in California. In April 2014, he filed a request for order (RFO) to modify the 2009 Wisconsin custody order, either to increase visitation, or to give him primary physical custody over the boys. He also sought to modify the support amounts.
Mother opposed Father’s RFO. She highlighted her “serious disagreements” with him concerning the children’s future medical treatment and exact custody schedule, but asserted that she “does not have an issue working with [Father] regarding child custody and visitation.”
The parties stipulated for Father to have summer visitation with the children on two separate occasions in the summer of 2014, and to enroll in Family Wizard for e-mail communication, and to attend mediation to work out a visitation schedule for the holidays. According to Father, he spent a total of 57 days during calendar year 2014 in visitation with the children.
On October 28, 2014, respondent court held an afternoon session on Father’s RFO. The court considered Father’s request to reduce child support, leaving “for another day” “the issues of crossed accusations about whether [Mother] blocked [Father] from seeing the children [and] whether [Father] has given the proper attention to following through on the medical needs.” Respondent court entered a support order and continued the hearing until February 11, 2015.
Although the parties agreed to share the costs for an Evidence Code section 730 evaluator to make recommendations regarding the children’s best ...