UCCJEA and Inconvenient Forums
The parents in R.B. v. D.R. were citizens of India who came to California to work. While living in California, they had a child. The child was a United States citizen, but only had a lifetime visa to India, because India does not allow dual citizenship.
Originally, the father came to the US with a work visa. The mother had a dependent visa. They never intended for the US to become their permanent residence. They always believed that they would return to India. After the child’s birth, the family traveled between the US and India. In 2016 the mother and child went to India for five an a half months. After the mother returned to the US, she found out that the father had been unfaithful. They argued. The father texted the mother stating, “Pack up and go back to India and do whatever you want . . . police court or whatever.” The mother returned to India and immediately filed a petition for guardianship which was awarded. The father filed an ex parte petition in California. The judge gave the father sole custody. The mother filed a responsive declaration asking to be heard in India, and she filed a motion to quash service of summons.
The California family court stayed the custody order. The judge held that California was the home state under the UCCJEA. However, it also held India was the more appropriate forum. The father appealed the order.
The appellate court upheld the order. It stated that even though California had exclusive jurisdiction as the home state, it was proper for the California court to determine whether or not it was an inconvenient forum per Family Code section 3427.
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Although the posting of this information can be considered free legal advice for a divorce in Orange County, it does not guarantee that there are other factors which may play a significant role in a dissolution. Circumstances in a divorce case may alter the results in a case.
Please note that this legal advice does not establish a family law attorney-client relationship. This is a legal advertisement for Treviño Law, Inc.
Family Code Section 3427 states:
(a) A court of this state that has jurisdiction under this part to make a child custody determination may decline to exercise its jurisdiction at any time if it determines that it is an inconvenient forum under the circumstances and that a court of another state is a more appropriate forum. The issue of inconvenient forum may be raised upon motion of a party, the court’s own motion, or request of another court.
(b) Before determining whether it is an inconvenient forum, a court of this state shall consider whether it is appropriate for a court of another state to exercise jurisdiction. For this purpose, the court shall allow the parties to submit information and shall consider all relevant factors, including:
(1) Whether domestic violence has occurred and is likely to continue in the future and which state could best protect the parties and the child.
(2) The length of time the child has resided outside this state.
(3) The distance between the court in this state and the court in the state that would assume jurisdiction.
(4) The degree of financial hardship to the parties in litigating in one forum over the other.
(5) Any agreement of the parties as to which state should assume jurisdiction.
(6) The nature and location of the evidence required to resolve the pending litigation, including testimony of the child.
(7) The ability of the court of each state to decide the issue expeditiously and the procedures necessary to present the evidence.
(8) The familiarity of the court of each state with the facts and issues in the pending litigation.
(c) If a court of this state determines that it is an inconvenient forum and that a court of another state is a more appropriate forum, it shall stay the proceedings upon condition that a child custody proceeding be promptly commenced in another designated state and may impose any other condition the court considers just and proper.
(d) A court of this state may decline to exercise its jurisdiction under this part if a child custody determination is incidental to an action for dissolution of marriage or another proceeding while still retaining jurisdiction over the dissolution of marriage or other proceeding.
(e) If it appears to the court that it is clearly an inappropriate forum, the court may require the party who commenced the proceeding to pay, in addition to the costs of the proceeding in this state, necessary travel and other expenses, including attorney’s fees, incurred by the other parties or their witnesses. Payment is to be made to the clerk of the court for remittance to the proper party.