Miller v. Superior Court of Los Angeles County

• Decision Date: 22 April 1977
• Citation: 69 Cal.App.3d 191,138 Cal.Rptr. 123
• Court: California Court of Appeals Court of Appeals
• Parties: Patricia Ann MILLER (now Patricia Ann McGuiness), Petitioner, v. The SUPERIOR COURT OF LOS ANGELES COUNTY, Respondent; Harry Maurice MILLER, Real Party in Interest. Civ. 50120.

Page 123

138 Cal.Rptr. 123

69 Cal.App.3d 191

Patricia Ann MILLER (now Patricia Ann McGuiness), Petitioner, v. The SUPERIOR COURT OF LOS ANGELES COUNTY, Respondent Harry Maurice MILLER, Real Party in Interest.

Civ. 50120.

Court of Appeal, Second District, Division 2, California.

April 22, 1977.

For Opinion on Hearing, see 151 Cal.Rptr. 6, 587 P.2d 723.

Dietsch, Gates, Morris & Merrell, Los Angeles, for petitioner.

Ball, Hunt, Hart, Brown & Baerwitz, Beverly Hills, for real party in interest.

No appearance for respondent Superior Court of Los Angeles County.

Brigitte M. Bodenheimer, Davis, amicus curiae, in support of petitioner.

COMPTON, Associate Justice.

Patricia Ann McGuiness, formerly Miller, petitioned this court for a writ of mandate to compel the Superior Court of Los Angeles County to vacate its order of December 10, 1976, which order directed her to deliver to her former husband Harry Maurice Miller physical custody of their two minor children, Miles age 12, and Justine age 11. The order further provided that Harry could take the children to Sydney, Australia, to oeside with him. Harry was awarded costs, travel expenses and attorney's fees.

We issued an order to show cause and stayed further proceedings pending our resolution of the legal questions presented and permitted appearance by amicus curiae on behalf of Patricia. We have concluded that the superior court order was proper, that the petition should be denied and the stay dissolved.

Patricia who is a native born United States citizen married Harry, a citizen of Australia, in October 1962. The marriage was celebrated in Australia and the two children of the marriage were both born in Australia. Because of Patricia's United States citizenship, however, the children are citizens of both Australia and the United States. (8 U.S.C.A., § 1401(a)(7).)

The parties divorced February 9, 1967, in Australia. The children were at that time approximately 2 and 3 years of age. By agreement between the parties, Patricia lived in Los Angeles, California, with the children from approximately May 1968, to May 1972. On April 14, 1972, Patricia married her present husband Kevin McGuiness, a citizen of Australia, and shortly thereafter returned to Sydney with him and the two children.

On April 26, 1972, the parties entered into an agreement providing that Patricia would continue to have custody of the children, subject to Harry's specified visitation rights; that during Patricia's absence from Australia, Harry should have custody; and finally that Harry should be solely responsible for all school arrangements for the children.

Apparently there was no major disputes between the parties until March and April of 1976, at which time there developed a controversy concerning Miles' continuing as a boarding student at a particular private school in Sydney and whether the children should remain with Harry while Patricia and her present husband were traveling outside of Australia.

In March of 1976, the parties appeared before the Family Court of Australia and that court directed that the children remain with Harry during Patricia's absence. On May 3, 1976, the parties entered into another agreement which was on that date approved by the Family Court of Australia and portions of which were incorporated into a court order.

Custody was continued with Patricia. Harry was to have the right of visitation on alternate weekends and on a specific holiday visitation schedule. The order made note of it but did not expressly incorporate a provision of the agreement that the parties were to give each other at least one month's notice of any overseas trips involving the children. The wording of the former agreement was changed slightly in that Patricia agreed that the children were to stay with Harry 'when she is out of Australia without them.' The order did not expressly restrain Patricia from removing the children from the jurisdiction of the court or otherwise. The order did provide that the 'father shall be responsible for all schooling arrangements for the children.'

The precipitating cause does not appear from the record but on July 23, 1976, Patricia and the children moved to Los Angeles. She admittedly did not inform Harry nor the Australian court in advance and in fact there is evidence that she misled the Australian immigration authorities by telling them she was going on a 14-day visit. It is evident that Patricia intended a permanent change of residence for herself and the children.

On July 28, 1976, Harry filed an application for change of custody, for a restraining order preventing Patricia from removing the children from the jurisdiction and requiring that Patricia surrender the children's passports. Harry's application recited that the children had been surreptitiously removed from school, that he did not know Patricia's whereabouts and that she was emotional and unstable. This application was served upon Patricia's solicitors of record. The solicitors could not locate Patricia. Her husband also professed not to know her whereabouts. The matter was heard the same day, ex parte. The solicitors did not appear. They took the position that they had not been retained for this purpose, had not been instructed and did not believe themselves to be 'solicitors of record' for the purpose of the hearing.

An order was made in the form of an order to show cause, granting all aspects of the application and returnable August 3, 1976, some 5 days later. Neither Patricia nor her solicitors appeared on August 3, 1976. An order together with an injunction and a warrant for the persons of the children was issued. Harry then retained counsel in California, who on October 22, 1976, instituted the present proceedings under the Uniform Child Custody Jurisdiction Act (the Act). (Civ.Code, §§ 5150, et seq.)

Patricia did not state to the court below just when she learned of the July 28, 1976 order but the trial court in its decision found that she was aware of it as early as August 9, 1976, and failed thereafter to take any action in the Australian court to either modify or appeal the order.

At the hearing in the Los Angeles Superior Court, Patricia's counsel requested that independent counsel be appointed for the children and that the judge interview the children as to their desires. Both requests were declined, however, there were statements of the children in deposition form before the court. In those statements the children expressed a desire to remain with Patricia in the United States.

Thus we have before us on the one hand a United States citizen, Patricia, who desires to reside here and establish a residence for herself and her two children, both of whom are United States citizens, and on the other hand Harry, an Australian citizen who desires to make a residence in Australia for himself and his two children who are also Australian citizens.

Patricia argues that to enforce the Australian orders under the provisions of the Act and send the children to Australia amounts to deportation of American citizens against their will and without due process. Harry on the other hand argues that to deny enforcement of the Australian court order is to countenance Patricia's flaunting of a valid decree and to encourage the practice of 'Seizing and Running' with children in custody disputes, a practice which the Act was designed to prevent.

Both Patricia and Harry argue that their position is in the best interests of the children. Patricia claims that this is where the children want to be and Harry, for his part, argues that the stability resulting from preventing a parent from jumping from jurisdiction to jurisdiction as well as the stability provided by continuing the educational program that commenced in Australia serves the children's best interests regardless of their present but transitory desires.

The matter has been eloquently briefed by the parties and the various contentions cogently argued. The question for us resolves itself to the single one of which court is the proper one to 'cut the Gordian knot,' i. e., make the decision of what will best serve the interests of the children. More precisely the question is whether the Superior Court of Los Angeles County erred in giving recognition to the Australian court order, thereby permitting that court to make the critical determination.

There is a certain superficial appeal to the deportation argument and the line of least resistance would be for us to take the parochial view that only our courts can truly provide the proper solution of the dispute. However, we have examined the Australian Family Law Act of 1975 and find it to be comparable to our law and embodying its essential precepts. Of course the quality of the Australian legal system and its institutions is not to be disputed.

In spite of recent developments in the law giving recognition to the rights of children, vis-a-vis the government and the judicial system, there still exists a recognized need for parental control and parental decision making before which the child's rights and desires must yield. One such area of decision making is with certain limited exceptions, the location of residence. While in custody matters the child's best interests are the paramount consideration (Civ.Code, § 4600) the determination of what best serves those interests cannot simply be resolved by acceding to the child's wishes or desires in every case. Permitting Harry to take the children to Australia is not the same as deportation. He is their father.

Patricia contends that the order of our superior court preordains the future of the children and she is left without any remedy. We disagree. There is no reason to believe that if she can demonstrate to an Australian court that the best interests of the children would be served by returning them to the United States that that court would be any less sensitive to the interests of the children than the California court.

Although...