J.K. v. Superior Court CA1/3

Filed 9/14/16 J.K. v. Superior Court CA1/3 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION THREE

J.K., Petitioner, v. A149099 THE SUPERIOR COURT OF SONOMA COUNTY, (Sonoma County Super. Ct. No. SFL-073895) Respondent; K.K., Real Party in Interest.

Petitioner J.K., mother (Mother) of R.K. and I.K (minors), filed a petition for writ of mandate and/or prohibition challenging the Sonoma County Superior Court’s July 29, 2016 order granting father’s (K.K. or Father) request for sole legal and physical custody of the minors, authorizing relocation of the minors from California to Colorado where Father resides, and prohibiting Mother from visiting with minors pending further hearing. Mother sought writ relief in this court from the court’s July 29th order, alleging that the trial court issued its order without notice, depriving her of the opportunity to be heard and/or to present evidence. We, therefore, stayed the superior court’s order and requested informal briefing on an expedited basis. Father failed to file his opposition to the petition by the date set forth in our August order. Consequently, and for the reasons set forth below, we now order the superior court to vacate its July 29, 2016 order, and instruct it to

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enter a new order denying Father’s July 28th ex parte request for sole custody of minors, relocation of the minors and prohibition of visitation between minors and Mother. FACTUAL AND PROCEDURAL BACKGROUND Mother and Father married in 2002 and had two children, R.K. and I.K. They separated in 2009. Between 2008 and 2009 various restraining orders were issued against Father, who apparently suffers from bi-polar disease, to protect the children and/or Mother from him. Mother alleges that in 2008 Father was adjudged to be a negligent and abusive parent. Since 2010 Mother and the children have lived in Sonoma County — usually, but not always, with the maternal grandparents. Father has visited with the children in Santa Rosa a few times, but has only been sporadically involved in the children’s lives for the last six years. The parents were divorced in February 2016 in Adams County, Colorado; the judgment made no provisions for the children because the Colorado court found it lacked jurisdiction over the children. Mother traveled with the minors to Colorado for a visit in July 2016, where they had contact with Father. Father alleges that during this visit he observed that Mother was high on drugs. He also alleges that Mother was traveling with a homeless friend who, while watching the children, left them at a “meth house.” Mother’s friend later informed Father that Mother was a drug addict. When Father asked Mother whether she was high, she “rag[ed] out of control,” forced the children to get into the car, and sped away with them. After Mother left, Father was unable to locate the children and he became concerned for their safety. Father asked the Santa Rosa police department to conduct a welfare check with regard to the children at Mother’s parents home. The Santa Rosa Police conducted a welfare check, as requested, and informed Father that the children were safe with their maternal grandparents and Mother. On July 28, 2016, Father filed a temporary, ex parte request in the Sonoma County Superior Court seeking sole physical and legal custody of the children. The next day, without notice to Mother, the superior court awarded Father temporary physical custody of the children, directed that Mother have no visitation with the children pending a