Friday, May 26, 2006

Case Law Development: California Court of Appeals Emphasizes Importance of Due Process in Hearing Relocation Petitions

The California Court of Appeals reversed a trial court's order that changed custody from shared physical and legal custody of the four minor children to sole physical and legal custody with Mother and permission for her to move with the children to Virginia, where she now resides with her new husband.  The court of appeals strongly criticized the trial court's failure to give Father a meaningful opportunity to be heard on the change in custody and relocation decision:

"Virtually from start to finish, the trial court handling this matter failed to follow or evenly apply the rules and procedures governing family law matters and, by failing to do so, denied Timothy the opportunity to be meaningfully heard. The 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."

Father had initially brought an action seeking sole custody of the children. Among the errors the court of appeals noted were the trial court's failure to require Mother to file a responsive pleading to this action (her counsel at that time indicated that she did not anticipate asking for relocation, even though she had remarried and her husband lived in Virginia).  The court appointed a mental health professional to conduct an evaluation without defining the purpose and scope of the evaluation as is required by the evidence code.  Father withdrew his motion after that evaluator concluded that Mother should be given primary custody and allowed to move with the children (even though that was not an issue before the court at that time).  Mother then filed her own motion to change custody and relocate and requested that it be heard on shortened notice.  Father moved to quash the motion as he had not received the required personal service of the motion.  The trial court denied his motion to quash and granted Mother's request for an expedited hearing without a good cause showing. The trial court then refused to continue the hearing for three days to permit Father's rebuttal expert to testify.  Taken together, the court of appeals found these errors to justify reversal, even though it noted this would further prolong the uncertaintly of custody for the children.  The court cautioned "All the more reason why it is important to adhere to the correct procedures and provide a fair hearing in the first instance. "

In re Seagondollar, 2006 Cal. App. LEXIS 779 (May 25, 2006)
Opinion on the web (last visited May 26, 2006 bgf)

http://lawprofessors.typepad.com/family_law/2006/05/case_law_develo_24.html

Custody (parenting plans) | Permalink

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