COURT OF APPEAL, FOURTH APPELLATE DISTRICT
STATE OF CALIFORNIA
THE SUPERIOR COURT OF SAN DIEGO COUNTY,
(San Diego County Super. Ct. Nos. ED94188 & D552243)
Real Party in Interest.
ORIGINAL PROCEEDINGS in mandate. Selena Dong Epley, Judge. Petition
Patrick L. McCrary for Petitioner.
James Parkeson Miller for Real Party in Interest.
No appearance for Respondent.
Petitioner S.C. (Father) challenges an order granting a motion by B.L. (Mother),
the mother of his biological son (Child), to move with Child to Arkansas. In his petition
for writ of mandate, prohibition, or other appropriate relief, Father contends the trial court
did not apply the proper legal standard in determining whether Mother’s move-away
motion should be granted. We grant the petition.
In June 2009, Child was born to Mother and Father. The parents dispute the
details of their relationship, but it appears that Father, Mother, and Child lived together
until Mother and Father ended their relationship in July 2014. Shortly thereafter, Father
filed a petition to establish paternity and for an order granting him sole legal and physical
custody of Child. Upon filing the petition, an automatic restraining order took effect,
preventing either parent from removing Child from the State of California.
In her response to Father’s petition, Mother claimed that Father was a sperm donor
with no parental rights. Mother also requested an order granting her sole legal and
physical custody of Child.
In November 2014, the court entered an order accepting the parents’ stipulation
granting Mother temporary sole legal custody and primary physical custody of Child with
weekly visitation with Father.
On February 6, 2015, while the paternity action was pending, Mother requested an
ex parte order to allow her to move to Arkansas with Child. She declared that after being
unemployed for a long period of time, she was offered a new job in Arkansas. She
further explained that if she did not relocate before February 16, 2015, she would lose the
job opportunity. Mother argued that because she has sole custody under the stipulated
order, she had a presumptive right under Family Code section 7501 to move Child to
another state. The court did not grant an ex parte move-away order, but did enter an
order shortening time for a hearing on the move-away request.
Father opposed the requested move and provided substantial documentation that
although Child was conceived via artificial insemination, it was the result of fertility
problems and not because he was merely a sperm donor.
Although the record in support of the writ petition is incomplete, it appears Mother
violated the temporary restraining order and moved with Child to Arkansas before the
hearing on her move-away request. The court later denied a request by Father to compel
Mother to bring Child back to California.
In preparation for the move-away hearing, the parties participated in a Family
Court Services conference. The counselor interviewed both parents but did not speak
with Child. Although the counselor was concerned with Mother’s attitude towards Father
and her denials of his paternity, she recommended that since Mother is the primary
caregiver, she should continue to have primary physical custody with visits with Father
on holidays and over the summer.
After receiving the counselor’s report, Father filed a supplemental opposition
asking for a long-cause evidentiary hearing and for a continuance to allow for an
independent psychological evaluation of Child. Father argued that a full evidentiary
hearing and psychological evaluation were necessary because the court had to consider
the best interests of Child when deciding whether to grant the move-away request.
At the hearing on the move-away request, the court denied Father’s request for a
psychological evaluation. The court found the request was not properly presented to the
court and untimely. The court, however, ordered the counselor to appear to testify.
After the hearing, the court granted the request to allow Mother to move Child to
Arkansas. In making the required findings pursuant to Family Code section 3048, the
court found the child’s home state to be Arkansas, apparently because Child had already
moved there with Mother. The court noted that because there was no existing final
custody determination, it must apply the “best interest rule.” The court also explained,
however, that in reaching its decision, it was applying the standard that “a parent who has
physical custody of a child has a presumptive right to change the residence of the child.”
The court continued, stating “[e]ssentially, I am not to interfere with . . . the parent who
has physical custody of the child’s right to move unless that move is detrimental to the
child.” The court then found that because Mother has primary physical custody and that
her request to move is in good faith, the presumption in favor of allowing the move
applies. Given that Mother had already moved Child to Arkansas, the court ordered the
child to return to California for a 30-day visitation with Father in lieu of the normal 30
day stay of a move-away order. (See Code Civ. Proc., § 917.7.)
Father filed a petition for writ of mandate and a request for an immediate stay.
We issued a temporary stay of the move-away order and notified Mother we were
considering issuing a peremptory writ in the first instance. (Palma v. U.S. Industrial
Fasteners, Inc. (1984) 36 Cal.3d 171, 179.) Mother did not file a response.
In general, “[t]he standard of appellate review of custody and visitation orders is
the deferential abuse of discretion test.” (In re Marriage of Burgess (1996) 13 Cal.4th
25, 32 (Burgess).) Under this standard, 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. (Id. at p. 32.) However, “all exercises of legal discretion must be
grounded in reasoned judgment and guided by legal principles and policies appropriate to
the particular matter at issue.” (People v. Russel (1968) 69 Cal.2d 187, 195.) Therefore,
a discretionary decision may be reversed if improper criteria were applied or incorrect
legal assumptions were made. (Linder v. Thrifty Oil Co. (2000) 23 Cal.4th 429, 435–
436.) Alternatively stated, 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.
(People v. Belmontes (1983) 34 Cal.3d 335, 348, fn. 8.)
We conclude the respondent court abused its discretion by relying on an improper
legal standard in deciding to allow Mother to move Child to Arkansas. In reaching its
decision, the court cited Burgess, supra, 13 Cal.4th 25 as creating a presumptive right for
a parent with physical custody of a child to change the residence of the child. The
presumption created in Burgess was subsequently codified by the Legislature in Family
Code section 7501.
Here, the court applied that presumption to support its order. The court stated it
found that “[Mother] has had primary physical custody of the child, that she does have a
presumptive right to move the child, that the reason for the move appears to be sound, in
good faith and is not intended simply to frustrate the other parent’s contact with the
child.” This finding was the extent of the court’s analysis.
However, absent an existing judicial custody determination, the Family Code
section 7501 rebuttable presumption does not apply. (F.T. v. L.J. (2011) 194 Cal.App.4th
1, 19.) “A custody order based on a stipulation of the parties does not constitute a final,
existing judicial custody determination unless ‘there is a clear, affirmative indication the
parties intended such a result.’ ” (Ibid.; Burgess, supra, 13 Cal.4th at pp. 37-38;
Montenegro v. Diaz (2001) 26 Cal.4th 249, 258.)
Nothing in the record in support of Father’s writ petition reveals any final judicial
custody determination that existed at the time of the hearing on Mother’s request to move
with Child to Arkansas. The stipulated order regarding temporary custody during the
pendency of Father’s paternity petition does not express any indication the parties
intended it to be a final custody determination.
Instead of applying only the rebuttable presumption, the court was required to
make an initial custody determination to choose a parenting plan that is in the best
interests of the child. (F.T. v. L.J., supra, 194 Cal.App.4th at p. 20.) In making such a
determination, the court must consider various factors, including the health, safety, and
welfare of the child, the nature and amount of contact with both parents, and which
parent is likely to allow the child frequent and continuing contact with the noncustodial
parent. (Ibid.) Although the court made cursory references to the “best interests”
standard, there is no indication it considered any of these relevant factors. Moreover,
nothing permits the court to issue an “interim” or “temporary” move-away order before
considering all relevant factors. (Andrew V. v. Superior Court (2015) 234 Cal.App.4th
In his writ petition, Father also contends the court erred in not permitting a full
evidentiary hearing. The only evidence that Father purported to introduce at such a
hearing was testimony from the Family Court Services counselor and a psychologist.
The court allowed the counselor to testify but found the request for a psychological
evaluation not to be properly presented. The court appeared to limit its ruling, however,
to that hearing based on its belief that the request was not proper “at this time.” Because
we hold that the court abused its discretion by applying an improper standard and must
reconsider Mother’s request at a new hearing and consider additional factors beyond the
scope of the previous hearing, we deem this issue to be moot for purposes of this writ
Finally, Father challenges the court’s finding that Child’s home state is Arkansas.
As Father correctly contends, the evidence does not appear to support a finding necessary
to determining that Arkansas is Child’s home state. Pursuant to Family Code section
3402, subdivision (g), a home state is defined as “the state in which a child lived with a
parent . . . for at least six consecutive months immediately before the commencement of a
child custody proceeding.” Although the court’s finding appears unsupported by any
evidence, it is not evident what effect this finding had on the court’s determination.
We conclude respondent court abused its discretion in granting Mother’s move
away request. We further conclude issuance of a peremptory writ in the first instance is
appropriate. “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 where children grow up quickly
and have immediate needs.’ ” (Andrew V. v. Superior Court, supra, 234 Cal.App.4th at
Let a peremptory writ of mandate in the first instance issue directing respondent
court to vacate its order of April 1, 2015, granting Mother’s move-away request and
issuing a resulting custody order. Respondent court shall conduct a new hearing on
custody, including the move-away request, in accordance with this opinion and existing
California law. The stay issued on April 29, 2015, shall be dissolved upon finality of this
opinion as to this court. Petitioner shall recover costs in this original proceeding. (Cal.
Rules of Court, rule 8.493(a)(1)(A).)
McDONALD, Acting P. J.