TENTATIVE RULING

Judge Thomas Anderle
Department 3 SB-Anacapa
1100 Anacapa Street
P.O. Box 21107 
Santa Barbara, CA  93121-1107

FAMILY LAW

Nature of Proceedings: OSC Mod CC/CS/Visit/Attorney Fees/Move Away; Change Venue/Transfer

This Petition to establish Parental Rights was filed on December 24, 2003. I did not find any 
Response was ever filed. On April 19, 2003 the parties stipulated to a parenting plan. 
Among other things it provides for joint legal and joint physical custody with a 50/50 
timeshare. Nothing happened for years.

On October 15, 2009, mother filed an OSC seeking modification of child support, child 
custody, visitation, attorney fees and a request to move-away to Boston, MA. She 
requested an ex parte order returning physical custody of the minor child (now age 5) to her 
pending the motion. She reported she moved from Santa Barbara to San Diego and then to 
Boston where she now resides. The father lives in Riverside, California, and has the boy 
with him. I have read mother’s 12-page declaration and she attaches Exhibits A through L. 
She has filed points and authorities in support of a request for an ex parte order. 

On October 15 this Court denied the ex parte request but granted a motion to shorten time 
for a hearing. Time for service was October 20, 2009, and any responsive pleading was 
due on October 26. 

The file reflected that father was served on October 20, 2009. Father apparently simply 
ignored the Court order to file a response by October 26. There was nothing in the file when 
the matter was called. 

The file reflected mediation was held on October 30, 2009 and Family Court Service 
reported no agreement was reached.

Father appeared in court on November 3, 2009, with Mr. Ferraro who announced he was 
an attorney and would file a substitution of attorney and a motion for change of venue on 
November 3, 2009. The Court announced it would hear the venue matter prior to making 
any decision on the issues raised by mother. A hearing was set for November 24.
On November 3 Father did indeed file a motion for change of venue. He points out that 
neither father nor mother live in Santa Barbara County and neither has lived here for many 
years. He reports he lives in Riverside County with the minor child and mother lives in 
Boston. He contends mother moved to Boston in March 2009 and that her move-away with 
the child is in violation of the 2004 parenting plan. He contends the issues raised by mother 
are best resolved in Riverside. He submitted points and authorities. 

Mother filed an opposition on November 10. She reports that Riverside is not the 
appropriate Court to decide the case and that father is simply trying to delay the matter. 
She contends that father has lived in Riverside only since September 30, 2009, and 
previously lived in Long Beach from 2008 to 2009, in Orange County in 2008, and in 
Anaheim from September 2007 to 2008. He says it is unlikely there are any witnesses in 
Riverside that would be material to the issues raised. He refers the Court to Flanagan and 
Flanagan (1959) 175 Cal. App. 641, 643 [father was at Camp Roberts in San Luis Obispo 
County and mother lived in Los Angeles County]. She seeks sanctioned based attorney 
fees and objects to any further delay. She relies upon her contention that the parties had 
reached a verbal agreement through which she had his consent to relocate to Boston 
provided that she send their son back to California in the summer and holidays for 
extended visitation with father. She contends she did that and the boy was in California for 
the summer and father refused to return their son at the summer’s end and continues to 
keep him in this State apparently on the contention that the “verbal agreement” trumps 
the “written parenting plan.” Additionally she contends he has not specifically called out 
exactly who the alleged witnesses would be.

On November 17 father filed a reply. He recites what he has already told the Court but 
among other things reports mother filed an Emergency Custody Petition in Massachusetts 
in an effort to establish custody their. He reports the request was denied. I note he does not 
address mother’s contention there was an oral agreement modifying the written parenting 
plan. He attaches two declarations from two women he has dated who report about 
incidents they observed suggesting the boy is better off with his father. In his points and 
authorities he reports the boy is attending school and Riverside is the appropriate place to 
resolve the issues because it can be reasonably inferred that witnesses in Riverside will be 
able to testify what is in his best interests.

Rulings:

1. Father’s motion for change of venue to Riverside County is granted. 

2. This is a “Hobson’s choice” case (i.e. Thomas Hobson circa 1631 who was a liveryman 
and required every customer to take the horse nearest the door – means apparently free 
choice with no real alternatives). The Court has one of two options. Mother urges Santa 
Barbara because she sees it as insuring her a “prompt” and favorable resolution. She sees 
this as simply an oral agreement trumping the written parental plan. I do not see it that 
simply. The issue here is that father contends, whatever the discussion might have been, 
that the best interests of the minor is he should live with father. Even in the best of 
circumstances this Court would be required to hold a hearing and make a determination of 
whether or not there was an oral agreement, what the agreement was and whether it in fact 
should trump the parenting plan. The best interests of the child cannot be simply ignored. A 
prompt resolution of the underlying issues is just not going to happen. (The Flanagan case 
is not on point as that case was a choice between where mother resided or father resided; 
and both parents lived in Southern California.) 

3. This Court considers Riverside the logical choice as that is where the minor child is and 
moreover, any potential witnesses on this matter would appear to be from at least in the 
general vicinity of Riverside County. Mother knew there was a parenting plan in place and 
knew that California had asserted jurisdiction and that both parents had lived in Southern 
California until she relocated to Boston. Although mother’s move may turn out to be what 
the parties agreed and may be in the child’s best interest the fact remains that the mother 
should not have moved-away without the custody issue being clearly resolved and properly 
documented. Moreover, this Court does not see any reason that the issues cannot be as 
promptly resolved in Riverside as in Santa Barbara. 
 
4. Mother’s request for sanctioned based attorney fees is rejected. 

5. The Court reminds the moving party (and mother) that this case will not be transferred to 
Riverside until the transfer fees are paid.