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THE SUPERIOR COURT OF THE STATE OF CALIFORNIA
IN AND FOR THE COUNTY OF SACRAMENTO
---ooo---
In re the Marriage of:
DAVID M. FERRIS,
Petitioner,
VS CASE NO. 98FL05615
SUSAN C. FERRIS, ORIGINAL Respondent.
---ooo---
REPORTER'S TRANSCRIPT OF EX PARTE PROCEEDINGS
Held in the Superior Court, in and for the County of Sacramento,
Department 121, on Wednesday, April 4, 2012;
Before the HONORABLE MATTHEW J. GARY, Judge
For the Petitioner:
For the Respondent:
Reported By:
---ooo---
APPEARANCES
TIMOTHY ZEFF Attorney at Law 2609 Capitol Avenue Sacramento,
California
LAW OFFICE OF ALLAN R. FRUMKIN Attorney at Law 5996 Horseshoe
Bar Road Loomis, California 95650 BY: STEVE GIMBLIN,
Attorney at Law
Tara Murany, CSR No. 12892
~--------SACRAMENTO COUNTY OFFICIAL COURT REPORTERS
--------~
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SACRAMENTO, CALIFORNIA
APRIL 4, 2012
3 ---ooo---
4 Proceedings in the Marriage of Ferris, Case
5 No.98FL05615, came on regularly this day before the
Honorable
6 MATTHEW J. GARY, Judge of the Superior Court of
California,
7 for the County of Sacramento, Department 121, thereof.
8 The Petitioner, DAVID M. FERRIS, was represented by
9 TIMOTHY ZEFF, Attorney at Law.
10 The Respondent, SUSAN C. FERRIS, was represented by
11 STEVE GIMBLIN, Attorney at Law.
12 The following proceedings were then had, to wit:
13 ---ooo---
14 THE COURT: Okay. On the ex parte, on Ferris and
15 Ferris, I'm summarily denying the request for any relief.
16 I'll go ahead and set it for hearing. But the existing
17 custody order is that Mr. Ferris has sole legal, sole
18 physical custody of the child with no contact to mom, and
he
19 can send the child to Utah. He can send the child to
20 New York. He can send the child to Asia. It's his sole
21 discretion. So I'll go head and put it on for hearing, but
I
22 can't -- I'm not going the address this on an ex parte.
23 MR. ZEFF: Can I ask there's one problem with
24 the moving papers, and that is my address is incorrectly
25 reported in there on one of the documents.
26 THE COURT: Okay.
27 MR. ZEFF: I brought it to the attention of
28 Mr. Frumpkin, but I see it wasn't changed on the -- it's
in
~--------SACRAMENTO COUNTY OFFICIAL COURT REPORTERS--------1
Temporarycustody order
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the demographics. My address is 2609 Capitol Avenue. They
got me at 2509. I'm just afraid stuff won't get sent to me. THE
COURT: Okay. We'll note it.
I'm sorry, I didn't realize we have a record. Both
parties are present. Good morning to both. And --
MR. GIMBLIN: Good morning, Your Honor.
Steve Gimblin withAl Frumkin's office
THE COURT: Good morning.
MR. GIMBLIN: for the Respondent. So you're not
entertaining any argument today?
THE COURT: No, it's an e x parte. The only reason
I mentioned it is while b o th side s were here, I would just go
ahead and give you an idea of why I'm summarily denying it,
but I won't entertain argument on it. There's an existing--
her complaint is that the child has been shipped to Utah to
a
school. Whether it's true or not is not the issue. Even if
it is true, the existing custody order is tha t he has sole
legal, sole physical custody, and he can do that.
MR. GIMBLIN: Your Honor, it's not really coming
from the mother's perspective, although she is here today.
It's really looking out for the child. The request also
seeks counsel for the child.
THE COURT: Counsel, I'll put all o f that on for a
noticed hearing. I won't do that on an ex parte is the
point. We're going to give you a date, hearing date on it,
and that will probably -- probably be good for you because
you'll be able to review the file. You may be able to review
some transcripts, and you may be able to come up to speed on
~--------SACRAMENTO COUNTY OFFICIAL COURT REPORTERS--------2
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what you're actually into.
MR. GIMBLIN: I was aware of the no contact order.
I just think that it is an emergency given the shocking
nature
THE COURT: Yeah, I don't.
MR. GIMBLIN: -- of the transfer.
THE COURT: I don't. And unfortunately between you
and I, it's my judgment that controls. I do not see the
emergency on it given what we've gone through, given the
history of the file.
So I'll put you on. I'll give you a noticed
12 hearing, and you'll be able to come on back, and we'll
take
13 argument on the case, on the motion.
14 MR. GIMBLIN: You're going to set the date by
15 minute order, Your Honor?
16 THE COURT: No. You'll actually get it on your OSC
17 today, and then you'll be able to serve the other side,
and
18 we'll have you come on back. And hopefully I'll have the
19 moving papers and the replies or responsive dec, and I'll
go
20 ahead and consider the thing anew.
21 MR. GIMBLIN: Is there any way we can get it on a
22 shortened notice period?
23 THE COURT: There is, but I wouldn't grant it. I
24 didn't grant an OST on this either. We'll go ahead and
set
25 it for a regular noticed hearing.
26 MR. GIMBLIN: Thank you, Your Honor.
27 THE COURT: Thank you all.
28 MR. ZEFF: Do we get to pick a date now?
~--------SACRAMENTO COUNTY OFFICIAL COURT REPORTERS--------3
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THE COURT: Madam Clerk is looking in the system
now to get you a date. Thank you.
(Whereupon, proceedings concluded.)
~---------SACRAMENTO COUNTY OFFICIAL COURT
REPORTERS---------4
Page 5 of 7
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Cal. Prac. Guide Family L. Ch. 7-G
California Practice Guide: Family Law
Judge William P. Hogoboom (Ret.), Justice Donald B. King (Ret.),
Contributing Authors: Judge Kenneth A. Black (Ret.), Judge Thomas
Trent Lewis, Michael Asimow, Bruce E. Cooperman
Chapter 7. Custody And Visitation
G. Removal Of Child From Jurisdiction; Wrongful Taking Or
Withholding Of Child
1. Move-Away Contests
a. [7:560] Custodial parents presumptive right to change childs
residence: By statute, the parent with sole physical custody of the
children has the presumptive right to change the childrens
residencei.e., to move away with the children; courts will not
interfere with that decision (enjoining the relocation or changing
custody) unless the move is detrimental to the child. A parent
entitled to custody of a child has a right to change the residence
of the child, subject to the power of the court to restrain a
removal that would prejudice the rights or welfare of the child.
[Fam.C. 7501(a); Marriage of Burgess (1996) 13 C4th 25, 32, 51 CR2d
444, 449; see Marriage of LaMusga (2004) 32 C4th 1072, 1094, 12
CR3d 356, 372custodial parents presumptive right to relocate with
children not dependent on whether parents had history of
cooperative coparenting]
(1) [7:560a] Limitationinapplicable absent final judicial
custody determination: Notwithstanding the foregoing, a parent does
not have a Fam.C. 7501 presumptive right to relocate the children
unless he or she has been awarded custody by way of a final
judicial custody determination. [See F.T. v. L.J. (2011) 194 CA4th
1, 1920, 123 CR3d 120, 133134]
Chapter 17. Modification Of Orders And Judgments
C. Child Custody And Visitation
b. [17:297] Limited to modifications after final judicial
custody determination: The changed circumstances rule is triggered
only after a final or permanent custody adjudication. The ordinary
childs best interest standard, without the additional changed
circumstances burden of proof, applies when the court makes an
initial custody adjudication and when it adjudicates custody
following any temporary or interim custody order. [Montenegro v.
Diaz, supra, 26 C4th at 256257, 109 CR2d at 580 & fn. 3;
Marriage of Burgess (1996) 13 C4th 25, 29, 37, 51 CR2d 444, 447,
452, fn. 8; see Keith R. v. Super.Ct. (H.R.) (2009) 174 CA4th 1047,
10531054, 96 CR3d 298, 302error to apply changed circumstances
standard to child custody move-away request because prior DVPA
interim custody order was not a final judicial custody
determination] Clearly then, the changed circumstances rule does
not apply in proceedings to change an informal or de facto custody
arrangement. [Burchard v. Garay (1986) 42 C3d 531, 537538, 229 CR
800, 804]
(2) [17:313] Move-away cases: By statute, a parent with sole
physical custody of the children has the presumptive right to
change the childrens residence, subject to the courts power to
restrain a removal that would prejudice the rights or welfare of
the children. [Fam.C. 7501(a); Marriage of Burgess, supra, 13 C4th
at 32, 51 CR2d at 449; Marriage of LaMusga (2004) 32 C4th 1072,
1094, 12 CR3d 356, 372; but see also F.T. v. L.J. (2011) 194 CA4th
1, 1920, 123 CR3d 120, 133134parent does not have presumptive right
to relocate with
Page 6 of 7
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children unless awarded custody by way of final judicial custody
determination ( 7:321.6)]
(b) [17:314] Changed circumstances rule applies: A noncustodial
parent seeking to change the custody arrangement under an existing
order on the basis of the custodial parents pending move-away,
bears the burden of showing there has been a substantial change of
circumstances rendering it essential or expedient for the welfare
of the children that there be a custody change. [Marriage of
Burgess, supra, 13 C4th at 38, 51 CR2d at 453 (emphasis added)]
Comparemove-aways where no final custody determination exists: When
there has yet been no final custody adjudication, a move-away
contest is decided strictly under the childs best interest
analysis, considering all the relevant factors as on any initial
custody adjudication. The changed circumstances rule and its
associated burdens of proof do not apply. [Marriage of Burgess,
supra, 13 C4th at 3132, 51 CR2d at 449; see Ragghanti v. Reyes
(2004) 123 CA4th 989, 996, 20 CR3d 522, 527; F.T. v. L.J., supra,
194 CA4th at 20, 123 CR3d at 134best interests analysis appropriate
where stipulated order was without prejudice to either party; and
detailed discussion at 7:561.1 ff.]
Page 7 of 7
