Written by attorney Anthony Payman Azemika

An Order Restraining Mom from Not Interfering with Dad’s Custody Is Not Vague or Ambiguous.

A California Appellate Court has ruled that a Trial Court order restraining Mother from interfering with Father's custodial time is not vague or ambiguous and does not interfere with Mother's right of free speech. In the case of In re Marriage of Hartmann, Mother and Father were married in 1990, and later had three daughters. They separated in July of 2002, and Mother filed for divorce. At the August 2007, divorce trial, Mother and Father stipulated to the division of their assets and debts, but could not agree on custody and support issues. Mother wanted their 17-year-old daughter to attend an out-of-state boarding school that she had previously attended. Father opposed that idea because he thought the daughter needed more supervision than the boarding school could provide. He blamed the school for the daughter's behavioral problems, and wanted her to attend local public high school so that he could see her on a daily basis. In an order issued August 15, 2007, Trial Court granted Mother and Father equal physical custody of the daughter and her 14-year-old twin sisters on alternating weeks, and ordered that the daughter attend the local public high school.

On September 7, 2007, Mother filed an ex parte application with the Trial Court, seeking an order that would allow the daughter to attend local private high school, but the Trial Court denied that request. On September 24, 2007, Father asked Trial Court to issue an order restraining Mother from, among other things, "interfering with [Father's] custodial time." In support of his request, Father claimed that Mother told all of their children "every detail of the trial," after which the children told him that they believed that "he won because he lied on the stand," that he sought joint custody so that he would pay lower child support, and that he and Mother could ignore Trial Court's custody and school placement orders.

At the hearing on October 24, 2007, Mother and Father presented oral and documentary evidence. When the hearing concluded, Trial Court found that Mother had treated its prior orders as "work in progress" and concluded that Mother had tried to alienate the children from Father by word, deed, and demeanor. Accordingly, Trial Court granted Father's request for a restraining order.

In April of 2008, Father filed an Order to Show Cause re Contempt, in which he claimed that Mother had not ceased interfering with his custody time, refused to tell him where daughter was, and continued to talk to all of the children about attending boarding school. Trial Court continued Father's Order to Show Cause to give Mother and Father time to pursue family therapy.

On August 25, 2008, Mother filed a Motion to discharge the contempt citation on basis that the restraining order was ambiguous, uncertain, and thus, void. Father then took his Order to Show Cause off calendar.

In March of 2009, Mother moved to vacate the restraining order, asserting again that the order was vague and ambiguous. Trial Court denied her motion and again ordered Mother restrained from interfering with Father's custody time. Mother appealed, but now a California Appellate Court has affirmed Trial Court's ruling. The Appellate Court has ruled that (1) as used in the restraining order "interfere" is not ambiguous (Mother failed to cite any authority that it was); (2) the case of Gottlieb (1959) 168 Cal.App.2d 309 [ambiguity about subject matter of boilerplate non-interference clause requires reversal], on which Mother relied, is factually distinguishable; (3) restraining order did not violate Mother's right of free speech because, pursuant to the case of Candiotti (1995) 34 Cal.App.4th 718, Trial Court has authority to restrict speech in order to protect children (i.e. orders precluding disparaging remarks); and (4) the case of Gilbert (1996) 43 Cal.App.4th 1135 [restraining order impermissibly prevented husband from revealing any information relating to wife to anyone but his attorney], which Mother cited, is factually distinguishable. Noting that Mother's conduct gave Trial Court "cause to be conspicuously tautological and categorically pedagogical," the Appellate Court has affirmed Trial Court's denial of Mother's motion to vacate the restraining order.

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