On the back of every Dissolution of Marriage Summons are listed the four Automatic Temporary Restraining Orders (ATROs) that go into effect the moment the Summons is effectively served. First on the list is ATRO #1, which cites Family Code §2040(a)(1):
“[Both parties are restrained] from removing the minor child or children of the parties, if any, from the state without the prior written consent of the other party or an order of the court.”
This is a big deal. The purpose of this ATRO is to prevent a party from taking a child beyond the Court’s jurisdiction. Once the Summons is served, taking a child out of the state is in violation of the Court’s orders, punishment for which can include sanctions and even jail time (if the other party files a contempt action).
But what happens if you just want to take your child on a vacation? What if he/she has an out-of-state school trip? Surely that’s not against the Court orders, is it?
Yes, it is. ATRO #1 controls even temporary removals from the state.
In order to comply with the Court’s orders, the easier option is to get the written consent of the other party. This may not always be forthcoming, particularly if you have got a messy divorce. In that event, your only recourse is to get the Court’s permission, which means you will need to file and serve a Request for Order.
Of course, hearings are generally pushed out three or four months from filing. It may well be that the relief you get will come after the planned trip. In that event, you will need to make an ex parte request pursuant to Family Code §235. If you can convince the Court of the urgency of your request, you may get expedited relief. But you’re not out of the woods, yet.
The reason why is Code of Civil Procedure (CCP) §917.7, which says, “the provisions of the judgment or order allowing, or eliminating restrictions against, removal of the minor child from the state are stayed by operation of law…for a period of 30 calendar days from the entry of judgment or order by any …trial court [other than juvenile pendency court].” The purpose of the 30-day stay is that, “‘[w]hen an appeal has been taken or is to be taken, removal [of a minor child or children] from the jurisdiction seriously affects both the appellate court’s jurisdiction and the right of appeal. (See e.g., Lerner v. Superior Court, 38 Cal.2d 676 [242 P.2d 321]; Gantner v. Superior Court, 38 Cal.2d 688 [242 P.2d 328].)'” Faulkner v. Faulkner (1957), 148 Cal. App. 2d 102, 107
Like CFC §2040(a)(1), CCP §917.7 covers all out-of-state removals with the clearly delineated exceptions of orders, “directing the return of a child to a sister state or country…made in a proceeding brought pursuant to the Uniform Child Custody Jurisdiction and Enforcement Act (Part 3 (commencing with Section 3400) of Division 8 of the Family Code), the Parental Kidnapping Prevention Act of 1980 (28 U.S.C. Sec. 1738A), or the Hague Convention on the Civil Aspects of International Child Abduction (implemented pursuant to the International Child Abduction Remedies Act (42 U.S.C. Secs. 11601-11610)).”
“By operation of law” means the stay is not discretionary but mandatory. In other words, even if you get your relief, the other party can demand a 30-day stay, and statutorily, he/she should get it (assuming the judge doesn’t impose the stay automatically, as he/she should). So to be safe, you want to make your request more than 30 days in advance of the child’s scheduled trip.
This cuts both ways. If your spouse wants to take the child on a trip or send the child out of state, he/she needs to ask your permission or get an order from the Court. Any such order is subject to the 30-day mandatory stay. If the child is still taken/sent out of state without your permission, without an order of the Court or even with an order of the Court but within that 30-day period (especially if the stay is specifically ordered), unless it be pursuant to the three explicitly-outlined CCP §917.7 exceptions (UCCJEA, Kidnapping Act, Hague Convention), there are avenues for relief up to and including filing a contempt action.
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