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Interstate custody disputes

UCCJEA

 

The Uniform Child Custody and Jurisdiction Enforcement Act

Even if a parent of a minor child lives in Orange County, California will not automatically have the ability, or jurisdiction, to enter custody orders, because California has adopted the UCCJEA (California Family Code Section 3400). The purpose of the UCCJEA is to prevent forum shopping. Forum shopping occurs when one party moves from California to another state or from another state to California in order to obtain a more favorable custody order. Another purpose of the UCCJEA is to avoid re-litigation of the same issues in different states. Without the UCCJEA, one parent could obtain a custody order from California and the other parent could move to Utah and get a new custody order that conflicts with the previous order. By giving only one state the ability to hear a custody case, the courts ensure final determinations of custody.

If one parent or party raises the question at a hearing in regards to California jurisdiction under the UCCJEA, that question shall be given priority in the calendar.

 
 
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PREVENTION OF FORUM SHOPPING

The UCCJEA curtails forum shopping by limiting the ability of a court in a different state from having the ability to make custody orders if California has jurisdiction. In effect, it divests the court in the new state from making enforceable custody orders if one parent has taken the children out of the California. If California does not have jurisdiction, custody will be litigated in the state that has jurisdiction. If another state has jurisdiction, then the parent who lives in California will have to travel to the other state to litigate custody. If California has custody, then the case will be heard in California.


Home state for UCCJEA purposes

The UCCJEA allows a parent in Orange County to litigate custody if California is the child's home state. The home state is defined as the state in which the minor child has lived for the months immediately proceeding the custody filing (see California Family Code Section 3402(g) below). If there is no home state, because the child no longer lives in California, the court will ask whether the child lived in California at any time during the six months before the custody proceeding was started. California will have jurisdiction as long as one parent or a person acting as a parent continues to live in this state (see California Family Code Section 3421(a)(1) below).

If there is no home state or a state that is the home state has declined to exercise jurisdiction, California will have jurisdiction as long as the child and at least one parent have significant ties with California, and there is substantial evidence in this state concerning the child’s care, protection, training, and personal relationships. Custody orders can also be made if all other courts have declined to exercise jurisdiction on the ground that California is the more appropriate forum to determine custody.

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an orange county judge can make custody orders in some circumstances

California Family Code Section 3402 gives California jurisdiction over child custody matters in three circumstances:

  • California is the minor child’s home state,

  • The child’s home state does not have jurisdiction, or

  • The home state declined jurisdiction in favor of California.

Once a determination has been made that California has jurisdiction, the issues of custody and support can be heard and an order can be entered.



PERSONAL JURISDICTION UNDER UCCJEA

If a person who does not live in the State of California participates in a proceeding under the UCCJEA, he or she is not subject to the jurisdiction of the state for other matters, unless that person is subject to the laws of California for other reasons. If a person is not immune from service of process in this state, he or she can be subject to jurisdiction for other matters. This immunity does not extend to civil litigation based upon acts committed while an individual is found in this state (See California Family Code Section 3409 below).

a court with previous custody jurisdiction may decline to act

Before California can act, the family court must also ask if the court of another state has jurisdiction as a home state or whether a court with jurisdiction as the home state has declined to exercise jurisdiction on the grounds that California is the more appropriate forum.

A court of this state may communicate with a court in another state concerning a proceeding arising under the UCCJEA to determine which state will exercise custody. The court may allow the parties to participate in the communication. If the parties are not able to participate in the communication, they must be given the opportunity to present facts and legal arguments before a decision on jurisdiction is made.

Communication between courts on schedules, calendars, court records, and similar matters may occur without informing the parties. A record need not be made of this type of communication. On the other hand, a record must be made of a communication that is substantive. The parties must be informed promptly of the communication and granted access to the record.

For the purposes of this section, “record” means information that is inscribed on a tangible medium or that is stored in an electronic or other medium and is retrievable in perceivable form (see California Family Code Section 3410 below).

 

testimony in a uccjea proceeding

A parent or a party in a UCCJEA proceeding can offer testimony of witnesses who are located in other states including either party's testimony and the child's testimony. The testimony can be taken by deposition or any other means that California accepts for testimony taken in another state. The family court itself can order that the testimony of a person be taken in another state and may determine the method in which the testimony is taken.

An Orange County family court can also allow an individual residing in another state to be deposed or to testify by telephone, audiovisual means, or other electronic means. The California family court shall cooperate with courts of other states in designating an appropriate location for the testimony.

Documentary evidence transmitted from another state to a court of this state by technological means that do not produce an original writing may not be excluded from evidence on an objection based on the means of transmission (see California Family Code Section 3411 below)

The UCCJEA allows the California family court to request the other state court to hold hearings, provide evidence, order a custody evaluation, provide transcripts, order a party to appear in person at a hearing. The family court may also provide records to courts in other states.

A court in California will enforce a child custody order made by a court of another state if the court exercised jurisdiction in substantial conformity with the UCCJEA.

Valid Enforceable Orders

Once an Orange County court has determined that it has jurisdiction to make an order, that order is binding on all persons who have been properly served, properly notified, or have submitted to the court’s jurisdiction. Service is proper if the service complies with California law. Notice is proper for a person outside of California is service complies with that state’s laws. Notice may be provided by publication but notice must be in a manner that reasonably gives actual notice to the interested parties.

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The UCCJEA does not apply in adoptions, authorization for emergency medical care, or to descendants of American Native Indians

Foreign Country Involvement

If a foreign country is involved, California courts shall treat that country as if it were a state of the United States for the purposes of custody as long as the custody determination made in a foreign country is in substantial conformity with the jurisdictional standards of the UCCJEA unless the child custody law of the foreign country violated fundamental principles of human rights.

Excerpts of the California Family Code

California Family Code Section 3402(g):

“Home state” means the state in which a child lived with a parent or a person acting as a parent for at least six consecutive months immediately before the commencement of a child custody proceeding. In the case of a child less than six months of age, the term means the state in which the child lived from birth with any of the persons mentioned. A period of temporary absence of any of the mentioned persons is part of the period.

California Family Code Section 3405:

(a) A court of this state shall treat a foreign country as if it were a state of the United States for the purpose of applying this chapter and Chapter 2 (commencing with Section 3421).

(b) Except as otherwise provided in subdivision (c), a child custody determination made in a foreign country under factual circumstances in substantial conformity with the jurisdictional standards of this part must be recognized and enforced under Chapter 3 (commencing with Section 3441).

(c) A court of this state need not apply this part if the child custody law of a foreign country violates fundamental principles of human rights.

California Family Code Section 3409:

(a) A party to a child custody proceeding, including a modification proceeding, or a petitioner or respondent in a proceeding to enforce or register a child custody determination, is not subject to personal jurisdiction in this state for another proceeding or purpose solely by reason of having participated, or of having been physically present for the purpose of participating, in the proceeding.

(b) A person who is subject to personal jurisdiction in this state on a basis other than physical presence is not immune from service of process in this state. A party present in this state who is subject to the jurisdiction of another state is not immune from service of process allowable under the laws of that state.

(c) The immunity granted by subdivision (a) does not extend to civil litigation based on acts unrelated to the participation in a proceeding under this part committed by an individual while present in this state

California Family Code Section 3421(a)(1):

Except as otherwise provided in Section 3424, a court of this state has jurisdiction to make an initial child custody determination only if this state is the home state of the child on the date of the commencement of the proceeding, or was the home state of the child within six months before the commencement of the proceeding and the child is absent from this state but a parent or person acting as a parent continues to live in this state.