G.A.S. v. Superior Court

Filed 7/24/07 G.A.S. v. Superior Court CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL - FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

PROCEEDINGS in mandate after the superior court allowed petitioner's minor daughter, S., to travel to Jordan and ordered petitioner to relinquish S.'s passport. Joseph P. Brannigan, Judge. Petition granted.

FACTUAL AND PROCEDURAL BACKGROUND

Petitioner, Jordanian-born G.A.S. (mother) and G.Y.S. (father) married in 1988 and have three children son L. (now 18), daughter S. (now 17) and son B. (now seven). The children have dual Jordanian and American citizenship. Mother and father separated on May 28, 2007, after police arrested father for domestic violence. On May 29 the court granted mother a temporary restraining order, and set the matter for hearing on June 18. On May 29 the mother also filed for dissolution.

On June 6 the court issued an order to show cause on child custody and visitation for father, and ordered the parties to attend custody mediation services. On June 8 the court issued an order to show cause on child custody, visitation, and support for mother.

On June 18 mother appeared ex parte, informing the court that father had purchased tickets for S. (and her older brother) to fly to Jordan on July 13 and requesting an order shortening time to show cause why the father should not be required to relinquish their passports and enjoined from taking them out of the country. The father countered with a declaration stating, among other things, that he had booked flights for S. and her older brother to fly to the Middle East on July 13 to attend their cousins' weddings and to return on August 6.

On June 18 the court denied the ex parte application stating there was "no emergency." On that same date, the court extended the restraining order for one year, awarded mother sole legal and physical custody of S. and B., limited father's visits with them to two hours an evening twice a week, and from 10 a.m. to 7 p.m. on alternate weekends, and awarded support. The court also required the parties to attend Family Court Services mediation on June 26, and set a review hearing for July 11. Significantly, the restraining order included a "no travel with children order" in which the court found father had a history of not cooperating with mother and taking the children without permission, and had family or emotional ties to a foreign county. In the order, the court directed that:

        father deliver to his attorney all passports for the minor children in father's possession,

        father not move with the minor children without written permission of mother or a court order, and

        father not to travel with the minor children outside California or the United States without written permission of mother or a court order.

On June 26 the parties participated in mediation but were unable to resolve the issues. The Family Court Services mediator prepared a report dated June 28 and mailed on July 2 recommending joint legal custody for the minor children, primary physical custody of B. with mother, and a 50-50 child-sharing arrangement with S. once father obtains housing. The mediator dismissed mother's concerns that father would obtain custody of S. by taking her to Jordan, explaining father knew that such conduct would cut off his ability to see his culturally "more valuable" seven-year-old son B.

On July 11 the parties appeared for the review hearing. Mother's counsel requested a continuance of the hearing because she did not receive a copy of the mediator's report 10 court days before the hearing. She also informed the court that she wanted to call the mediator to testify if there were any thought of allowing S. to go to Jordan. Counsel asserted the mediator made his recommendations based on a flawed understanding of Jordanian law, and mother was entitled to call an expert on Sharia law and the likelihood that, if S. were taken to Jordan, there was a strong probability she would never return. Explaining that Jordan was not a signatory to the Hague Convention on child abduction, mother's counsel (and later mother) attempted to make an offer of proof that, after S. arrives in Jordan, she is under the legal authority of father until she marries, and father can restrict her travel because S. is a Jordanian citizen.

The court acknowledged and father's counsel conceded that mother was entitled to a continuance, and postponed the hearing on the "ultimate issue" of custody and visitation to August 29. However, the court carved out what it called the "intermediate issue" of travel to Jordan, and dismissed mother's request for a continuance and evidentiary hearing saying, "I don't want to hear from you." Expressly basing its ruling on the record and recommendation of the mediator, the court refused to prohibit father from taking S. to Jordan for the weddings, and ordered mother to deliver S.'s American passport to father's counsel by the end of the day on July 12.

Mother then filed this petition, asserting the trial court denied her due process right to have the issue of S.'s travel to Jordan continued, to present evidence, and to cross-examine the mediator on his recommendations. She also contends the court abused its discretion by not considering the factors in Family Code section 3048, subdivision (b)(1), in determining the risk of abduction, obstacles to location, recovery, and return if S. is abducted, and potential harm.^[1] We temporarily stayed the lower court order and requested a response. We later issued Palma notice. (Palma v. U.S. Industrial Fasteners,Inc. (1984) 36 Cal.3d 171, 178.)

DISCUSSION

Father contends that the issue before this court is not the state of Jordanian law on the rights of fathers and daughters the issue is solely whether there was sufficient proof that he intended to abduct S. to Jordan. Father argues we should deny the petition because mother had the burden to convince the court with verifiable evidence and she submitted unsubstantiated allegations, not facts.

Referring to local rules that permit the court to entertain vacation motions (Super. Ct. San Diego County, Local Rules, rule 5.3.14^[2]) and grant custody and visitation orders on a clear showing of immediate harm or risk to the child (rule 5.3.13), father also contends the trial court followed proper ex parte procedure. He characterizes mother's request for a continuance a delaying tactic to cause S. to miss the weddings, and argues the trial court ordered the parties to Family Court Services on an emergency basis, reviewed the evidentiary facts, and was not persuaded mother made a clear showing of immediate harm or risk to S.

When parties are unable to resolve issues of custody or visitation through mediation, the mediator submits a written recommendation with reasons to the parties, their attorneys and the court for the court to consider at the time of the hearing. (Rule 5.10.3(B).) The rules require and father's counsel conceded that mother may continue the hearing where, as here, the mediator's recommendation was not available at least 10 court days before the hearing. (Rule 5.10.3(B).) Nothing in the rule authorizes the court to parse the mediator's recommendations to sever one issue in the report for hearing and continue the hearing on the rest of the mediator's recommendations. The rules also entitle the mother to cross-examine the mediator at the hearing. (Rule 5.10.3(B).) The court denied mother all her rights a continuance on the mediator's recommendation that S. be allowed to travel to Jordan and an opportunity to examine or rebut the mediator on Jordanian law and other issues.^[3] Mother cannot be faulted for relying on unsubstantiated allegations, not facts, if the court refused to let her present evidence.

The trial court did not follow proper ex parte procedure. Rule 5.3.14 applies to ex parte requests to change a minor's vacation, or change the holiday visitation schedule or the school the minor attends. Strictly speaking, the rule does not apply to this case because, on the record before us, there is no "change" of the vacation, holiday visitation schedule or school. Even if we assume it arguably applies, rule 5.3.14 "disfavor[s]" ex parte requests in such situations and directs that these matters be heard on the regular motion calendar on shortened time.

The application of rule 5.3.13 is even more perplexing. The rule provides in part: "Pursuant to Family Code section 3064, other than stipulated orders, ex parte orders regarding child custody and visitation will be granted only upon a clear showing of immediate harm to the child or immediate risk that the child will be removed from the State of California." Family Code section 3064 prohibits the court from making any order "granting or modifying a custody order on an ex parte basis unless there has been a showing of immediate harm to the child or immediate risk that the child will be removed

from the State of California."^[4] Facially, the statute and rule do not apply because it was mother who had sole legal and physical custody of S. under the court's June 18 order, and it was father who was seeking a modification of custody and attempting to remove S. from the state.

We conclude the court violated mother's procedural rights by allowing S. to travel to Jordan and requiring mother to relinquish S.'s passport to father's counsel.^[5] Because the relevant facts are not in dispute, the law is clear, and the matter is urgent requiring acceleration of resolution, we conclude a peremptory writ in the first instance is proper. (Code of Civ. Proc.,  1088; Alexander v. Superior Court (1993) 5 Cal.4th 1218, 1222-1223, disapproved on another ground in Hassan v. Mercy American River Hosp. (2003) 31 Cal.4th 709, 724, fn. 4; Ng v. Superior Court (1992) 4 Cal.4th 29, 35.)

DISPOSITION

Let a peremptory writ of mandate issue directing the superior court to vacate its order of July 11, 2007, permitting S. to travel to Jordan and directing mother to relinquish S.'s passport, and conduct further proceedings. The stay issued on July 12, 2007 is vacated. Mother is entitled to costs in the writ proceeding. This opinion is made final immediately as to this court. (Cal. Rules of Court, rule 8.264(b)(3).)

McDONALD, J.

WE CONCUR:

McCONNELL, P. J.

HALLER, J.

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^[1] Family Code section 3048, subdivision (b)(1) provides: "In cases in which the court becomes aware of facts which may indicate that there is a risk of abduction of a child, the court shall, either on its own motion or at the request of a party, determine whether measures are needed to prevent the abduction of the child by one parent. To make that determination, the court shall consider the risk of abduction of the child, obstacles to location, recovery, and return if the child is abducted, and potential harm to the child if he or she is abducted. To determine whether there is a risk of abduction, the court shall consider the following factors: [] (A) Whether a party has previously taken, enticed away, kept, withheld, or concealed a child in violation of the right of custody or of visitation of a person. [] (B) Whether a party has previously threatened to take, entice away, keep, withhold, or conceal a child in violation of the right of custody or of visitation of a person. [] (C) Whether a party lacks strong ties to this state. [] (D) Whether a party has strong familial, emotional, or cultural ties to another state or country, including foreign citizenship. This factor shall be considered only if evidence exists in support of another factor specified in this section. [] (E) Whether a party has no financial reason to stay in this state, including whether the party is unemployed, is able to work anywhere, or is financially independent. [] (F) Whether a party has engaged in planning activities that would facilitate the removal of a child from the state, including quitting a job, selling his or her primary residence, terminating a lease, closing a bank account, liquidating other assets, hiding or destroying documents, applying for a passport, applying to obtain a birth certificate or school or medical records, or purchasing airplane or other travel tickets, with consideration given to whether a party is carrying out a safety plan to flee from domestic violence. [] (G) Whether a party has a history of a lack of parental cooperation or child abuse, or there is substantiated evidence that a party has perpetrated domestic violence. [] (H) Whether a party has a criminal record."

^[2] All rule references are to the San Diego County Superior Court Local Rules unless otherwise specified.

^[3] Mother's counsel also objected that the mediator failed to make contact with Child Protective Services (which had interviewed the children) or the children's therapists.

^[4] The statute defines "immediate harm to the child" to include "having a parent who has committed acts of domestic violence, where the court determines that the acts of domestic violence are of recent origin or are a part of a demonstrated and continuing pattern of acts of domestic violence." (Fam. Code, 3046.)

^[5] Also suggesting that he satisfies the factors in Family Code section 3048, father claims (1) there was no proof by a preponderance of evidence that he previously threatened to entice away a child in violation of the mother's custody or visitation rights, (2) he has property (community interests), family (two sons) and financial (construction company) ties to California, (3) there is no allegation that he has a history of a lack of parental cooperation or substantiated evidence of domestic violence, and (4) he has no criminal record. We do not reach this issue because we have decided the petition on purely procedural grounds and father did not raise these arguments below.