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Mom Can't Move Child to Israel Until 30 Days After Entry of Court's Judgment

Posted By Anthony P. Azemika, Esq.   |   Comments (0)
Family Law, Divorce, Child Custody & Visitation, Legal Cases,

 

 

On December 6, 2018, a California Court of Appeals has ruled that a Trial Court was wrong by determining that the time period for California Code of Civil Procedure Section 917.7 (30-day statutory stay of order permitting a parent to remove a child from California) began to run on date it issued tentative order. According to the Court of Appeals, the time period begins to run on the date that Trial Court enters its judgment allowing the child to be removed from California.

In the case of Lief v. Superior Court (Nissan), Mother met Father in Israel in 2010. She then moved to San Diego, where she married Father the following year in 2011. Their son was born in 2014. In 2017, Father filed for divorce. Trial Court subsequently bifurcated the custody and visitation issues from the remaining issues in the parties’ divorce case and it held a trial on Mother’s request to move to Israel with Child.

On August 10, 2018, Trial Court tentatively granted Mother’s request. However, Trial Court reopened the hearing in response to Father’s reconsideration motion, in order to consider new evidence and argument. On November 7, 2018, Trial Court entered a judgment granting Mother’s move-away request. Mother then notified Father that she planned to leave for Israel with Child on November 22, 2018.

Father promptly filed an ex parte application for a Trial Court order preventing Mother from leaving until after December 7, 2018, when the Code of Civil Procedure Section 917.7 30-day stay of judgment granting move-away request would have run. On November 21, 2018, Trial Court determined that the 30-day stay time period began to run when it issued its tentative ruling on August 10, 2018, denied Father’s application, and ordered him to return Child to Mother that evening.

Claiming that the 30-day time period did not begin to run until Trial Court entered its judgment on November 7, 2018, Father petitioned California Court of Appeals for a writ of mandate and immediate stay of the order letting Mother move on November 22, 2018. The Appellate Court does grant Father’s petition and issues the requested writ.

The Appellate Court has ruled that (1) Code of Civil Procedure Section 917.7 provides that the order permitting a minor child to be removed from California is stayed “for a period of 30 days from the entry of judgment or order”; (2) Trial Court’s oral statement of decision was not a judgment or order (it contained several conditions to be met before Mother could move away with Child and Trial Court stated that it had not entered a judgment and its decision was still tentative); (3) pursuant to California Rules of Court Rule 3.1590(b), a tentative decision is not a judgment and is not binding on a Trial Court; and (4) Mother has conceded that Father is entitled to relief and agreed not to leave for Israel until December 7, 2018. Therefore, Appellate Court issues a writ commanding Trial Court to vacate its November 21, 2018, order and to enter a new order granting Father’s petition to prevent Mother from removing Child from California until 30 days after the entry of its judgment.

 

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