What State Has Jurisdiction Over Custody

In order to address this question, we need to assume certain facts. I am going to use the mother as the moving parent, however this is applicable to a father or a registered domestic partner as well. What we are going to do by way of illustration is to use the following facts:

Mother leaves a State or Country while she is pregnant and moves to The State of California for the purpose of changing her residence. Then after changing her residence in San Jose, California, the child is born. Mother then files for custody orders in the County of Santa Clara.

The reader must keep in mind there are a vast number or permutations of the above factual situations. This paper is not an intent to address all of them. If you reside in Santa Clara County, San Jose, Cambell, Palo Alto, Sunnyvale, Gillroy or the surrounding communities please call me for further explination.

The Black Letter Law

The State of California has jurisdiction over the minor child pursuant to the UCCJEA, (Unifor Child Custody Jurisdiction Enforcement Act). The question is whether or not the court should exercise UCCJEA jurisdiction.

The following are the recognized bases upon which a court may exercise personal jurisdiction over a party consistent with federal due process standards:

  • Physical presence in the forum state when served;
  • Domicile in the forum state;
  • General appearance in the action;
  • Contractual consent (forum-selection clauses); and
  • "Minimum contacts" between defendant and the forum state under
  • so-called "long-arm" statutes.

Where a party has a minor child and the minor child has never lived in a State other than The State of California, California has jurisdiction over the minor child, even if the child is one minute old.

Under the laws of The State of California, "Residence" is the place where one lives, even temporarily, regardless of intent to remain. "Domicile," on the other hand, is the place where one resides with the intent to remain indefinitely. (DeYoung v. DeYoung, 27 Cal.2d 521, 524, 165 P.2d 457, 458 (1946).) Petitioner has no intention what-so-ever of relocating back to The State of Idaho and intends on permanently residing in The State of California. While persons can have several residences concurrently; but because of the intent requirement, they can have only one domicile at a time. (Marriage of Tucker, 226 Cal.App.3d 1249, 277 Cal.Rptr. 403, 408 (1991).) Once established, domicile continues although the person is absent from the state and continues until the person takes up residence elsewhere with the requisite intent to remain at the new residence indefinitely. (DeYoung v. DeYoung, supra; Marriage of Tucker, supra. )

Due process does permit state courts to exercise personal jurisdiction over nonresidents who have "minimum contacts" with the forum state. "Minimum contacts" means the relationship between the nonresident and the forum state is such that the exercise of jurisdiction does not offend "traditional notions of fair play and substantial justice" under the U.S. Constitution's Fourteenth Amendment Due Process Clause. (International Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 158 (1945).) The "minimum contacts" doctrine provides no mechanical yardstick. Rather, personal jurisdiction depends on the facts of each case . . . the test being whether, under those facts, California has a sufficient relationship with the defendant and the litigation to make it reasonable ("fair play") to require him or her to defend the action in California courts. The following factors are usually considered:

The extent to which the lawsuit relates to defendant's activities or contacts with California;
The availability of evidence, and the location of witnesses; The availability of an alternative forum in which the claim could be litigated (defendant's amenability to suit elsewhere);
The relative costs and burdens to the litigants of bringing or defending the action in California rather than elsewhere; and Any state policy in providing a forum for this particular litigation (e.g., protection of California resident, or assuring applicability of California law). See World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 292, 100 S.Ct. 559, 564 (1980); and Fisher Governor Co. v. Sup.Ct. (Prestwich), 53 Cal.2d 222, 225-226, 1 Cal.Rptr. 1, 3-4 (1959).

As stated above, where a minor child was born in The State of California after a parent moved to The State of California, with the intent to permanently reside here, this amounts to a change of residence. Where the only contacts with a State or Country other than The State of California is the fact that the child was conceived in the foreign State, conception does not amount to residency.

A court can decline to exercise its UCCJEA jurisdiction at any time if it finds it is an inconvenient forum under the circumstances and that another state's court is a "more appropriate forum" to make the custody determination. (Family Code  3427(a)) The propriety of an inconvenient forum stay does not turn on notice from another jurisdiction that a custody proceeding is pending in that jurisdiction. Consequently, notwithstanding the fact no party has filed a  3427 motion and the court is otherwise unaware of a competing out-of-state custody proceeding, a California court may still have an "obligation" under the facts to consider whether it is the more "appropriate" forum to make the custody determination. (In re Stephanie M. (1994) 7 Cal.4th 295, 311, 27 Cal.Rptr.2d 595, 603)

Nonetheless, in practice, inconvenient forum consideration should come into play only when it appears another forum might have competing UCCJEA jurisdiction. No known California decision has held this state to be an "inconvenient forum" for custody adjudication where no other state (or nation) appears to have custody jurisdiction. (Indeed, the UCCJEA contemplates that there always be one "appropriate" forum for the exercise of jurisdiction.) (Marriage of Fox (1986) 180 Cal.App.3d 862, 873-874, 225 Cal.Rptr. 823, 829; Brossoit v. Brossoit (1995) 31 Cal.App.4th 361, 371, 36 Cal.Rptr.2d 919, 925, fn. 4) Here there is no ability to give the foreign State any UCCJEA Jurisdiction as the child has never lived in the foreign State even though the child was conceived there.

Before determining whether it is an inconvenient forum under the UCCJEA, a California court must consider whether it is "appropriate" for another state's court to exercise jurisdiction. For this purpose, the California court must allow the parties to submit information and "shall consider all relevant factors." (Family Code  3427(b)) The "relevant factors" include:

Whether domestic violence has occurred and is likely to occur in the future and which state could best protect the parties and child (Family Code  3427(b)(1));
The length of time the child has resided out of state (Family Code  3427(b)(2));
The distance between the California court and the court in the state that would assume jurisdiction (Family Code  3427(b)(3));
The degree of financial hardship to the parties in litigating in one forum over the other (Family Code  3427(b)(4));
Any agreement between the parties as to which state should assume jurisdiction (Family Code  3427(b)(5));
The nature and location of the evidence required to resolve the litigation, including the child's testimony (Family Code  3427(b)(6);
The ability of the court of each state to expeditiously decide the issue and the procedures necessary to present the evidence (Family Code  3427(b)(7)); and
Each court's familiarity with the facts and issues in the pending litigation (Family Code  3427(b)(8)).

The location of evidence as factor in accommodating out-of-state evidence. The "inconvenient forum" decision often turns on where the evidence most pertinent to the custody issue exists. Where the weight of the evidence is in California, a California court properly exercises its discretion in reaffirming its continuing jurisdiction to decide the case. In the matter of Pieri v. Super.Ct. (Pieri) (1991) 1 Cal.App.4th 114, 120-121, 1 Cal.Rptr.2d 742, 745-746 a resident father filed a motion to change custody alleging nonresident mother's interference with visitation. The California Court properly declined to relinquish continuing UCCJA jurisdiction to new home state of Switzerland because weight of evidence bearing on father's loss of contact with child was in California. The fact that relevant evidence (parties, witnesses, etc.) may also exist in the out-of-state forum does not compel a different result (Pieri v. Super.Ct. (Pieri), supra, 1 Cal.App.4th at 120-121, 1 Cal.Rptr.2d at 745-746).

Even if any undue hardship were placed upon the respondent or if he was prevented from leaving the foreign State due to the terms of his felony probation, the California court may direct that pertinent testimony be taken by deposition "or other means allowable" in California for the taking of out-of-state testimony; or the California court may, on its own motion, order the testimony to be taken in the out-of-state forum "and may prescribe the manner in which and the terms upon which the testimony is taken." (Family Code  3411(a))

Furthermore, the California court may permit an out-of-state resident to be deposed or to testify by telephone, audiovisual means, or other electronic means before a designated court or at another location in the other state. (See Family Code  3411(b)--California court "shall cooperate with courts of other states in designating an appropriate location for the deposition or testimony") The California court may also request the out-of-state forum to hold an evidentiary hearing or have social studies made with respect to custody of the child, and to forward certified copies of the transcript and pertinent evidence for use in the California proceeding. (Family Code  3412(a) (1)-(4))

Just What Home State Jurisdiction Is

Child custody jurisdiction is based on the State's relationship to the child, not the parents' relationship to the State. Child hild custody orders do not impose "in personam" obligations. Thus, subject to due process requirements of notice and opportunity to be heard, a court of competent subject matter jurisdiction (consistent with the FPKPA and UCCJEA,) can make a binding custody decision, entitled to full faith and credit, even though one parent is not present and has no jurisdictional ties to the The State of California. (Family Code  3421(c); see Marriage of Torres (1998) 62 Cal.App.4th 1367, 1378, 73 Cal.Rptr.2d 344, 352; Marriage of Fitzgerald & King (1995) 39 Cal.App.4th 1419, 1428, 46 Cal.Rptr.2d 558, 564) The Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA, Family Code  3400 et seq.) determines the proper jurisdictional situs as between interested States or countries, (Family Code  3405) for litigation of any custody or visitation dispute. (Family Code  3402(c),(d); see Marriage of Sareen (2007) 153 Cal.App.4th 371, 376, 62 Cal.Rptr.3d 687, 691--UCCJEA "is the exclusive method of determining subject matter jurisdiction in custody disputes involving other jurisdictions")

While the party initiating a California custody proceeding bears the burden of establishing this state's UCCJEA jurisdiction. (In re Baby Boy M. (2006) 141 Cal.App.4th 588, 599, 46 Cal.Rptr.3d 196, 203) In our factual situation our fictional parent has met this burden. Of the four (4) jurisdictional tests for initial custody order, petitioner has full filled two of the four. California may exercise custody jurisdiction if it either (Family Code  3421(a)(1)) :

is the child's "home state" when the proceeding is commenced (i.e., the date the first pleading was filed; Family Code  3402(e)); or
was the child's home state within six months before commencement of the proceeding and the child is absent from California but a parent or "person acting as a parent" continues to live in California. (Family Code  3421(a)(1); 28 USCA  1738A(c)(2)(A))

The "home state" is the state where the child lived with a parent or "person acting as a parent" for at least six consecutive months immediately BEFORE commencement of the custody proceeding; or, if the child is less than six months old, the state where he or she lived from birth with any of such persons. (Family Code  3402(g); 28 USCA  1738A(b)(4); see Guardianship of Ariana K. (2004) 120 Cal.App.4th 690, 703, 15 Cal.Rptr.3d 817, 825) California is the ONLY state in which the child has lived since birth.

Furthermore, home state jurisdiction is tested as of the time the custody proceeding is commenced (Family Code  3421(a)(1)). Thus, no state can have home state jurisdiction when the child was not yet born as of the date the action was initiated. (See Haywood v. Super.Ct. (Haywood) (2000) 77 Cal.App.4th 949, 955, 92 Cal.Rptr.2d 182, 186-187) The UCCJEA gives absolute priority jurisdiction to the child's home state in all initial custody adjudications, conferring jurisdiction on an alternative "significant connection" basis only when no other state has home state jurisdiction (or the home state has declined to exercise its jurisdiction under Family Code  3427 or  3428). (Family Code  3421(a)(2) & (b); 28 USCA  1738A(c)(2)(B) & (E); see Marriage of Torres (1998) 62 Cal.App.4th 1367, 1376, 73 Cal.Rptr.2d 344, 350; Wallace v. Super.Ct. (Jasis) (1993) 15 Cal.App.4th 1182, 1186-1187, 19 Cal.Rptr.2d 157, 160)

A California court can also exercise custody jurisdiction if all of the following conditions are satisfied:

No other state has "home state" jurisdiction or a court of the home state has declined to exercise its jurisdiction on the ground that California is the "more appropriate forum" under Family Code  3427 or  3428; and
The child and child's parents, or child and at least one parent or person acting as parent , have a significant connection with California other than mere physical presence; and Substantial evidence is available in this state concerning the child's care, protection, training and personal relationships. (Family Code  3421(a)(2)(A) & (B); 28 USCA  1738A(c)(2)(B))

As a general rule, a parent's alleged wrongful conduct is not a basis for withholding jurisdiction to hear his or her custody claims if the misconduct is unrelated to custody/visitation issues. (See In re Brandie W. (1984) 157 Cal.App.3d 110, 203 Cal.Rptr. 537) In the Brandie W. case, the father, allegedly an admitted "statutory rapist" as to mother, cannot be denied standing to request custody/visitation on "unclean hands" theory. However, a parent's "unjustifiable conduct" (e.g., "child snatching" from another state) does limit the exercise of jurisdiction in interstate custody disputes under the UCCJEA. (Family Code 3428) In our factual situation was no child snatching as the child had not been born yet.

Except when exercising temporary "emergency jurisdiction" (Family Code  3424,) or as otherwise provided by law, a California court that has UCCJEA jurisdiction because a person seeking to invoke its jurisdiction has "engaged in unjustifiable conduct" shall decline to exercise its jurisdiction unless (Family Code  3428(a)). At the time of the mother's relocation to The State of California, there were no custody or visitation orders in place.

A California court otherwise having UCCJEA jurisdiction under Family Code  3421-3423 determines that California is a "more appropriate forum" under  3427. (Family Code  3428(a)(2)); or No court of any other state would have UCCJEA jurisdiction under Family Code  3421-3423 (Family Code  3428(a)(3)).

Again, the foreign State is precluded from having home state jurisdiction under the UCCJA as the child had never lived in that state and has ONLY lived in California since its birth. The same result would happen if the child had resided in Santa Clara County for six (6) months before there was a filing for custody orders. Time periods for visitation do not count. Additionally time in Santa Clara County, San Jose or anywhere else in The State of California after the filing for custody orders in The State of California do not count as well. It is only the time before the filing for orders.

California courts generally have limited application of the UCCJA "wrongful child taking" provision to situations where petitioner removed the child from a state in violation of an existing custody order or injunction. In Haywood v. Super.Ct. (Haywood) (2000) 77 Cal.App.4th 949, 956-957, 92 Cal.Rptr.2d 182, 188, it was found to be error to decline UCCJA jurisdiction on basis of petitioner's "wrongful removal" of child where no existing custody order or injunction. (See also: In re Janette H. (1987) 196 Cal.App.3d 1421, 1428, 242 Cal.Rptr. 567, 570-571) Furthermore, the Legislative history is also be instructive on this issue. The drafters of the former UCCJA indicated their intent that the "wrongful child taking" provision apply only when one spouse "without warning forcibly removes the children" and whose conduct is "so objectionable that a court in the exercise of its inherent equity powers cannot in good conscience permit the party access to its jurisdiction." (See Comm'rs note, 9 West's Ann. U. Laws (1979 ed.)  8 UCCJA) In the matter of Marriage of Fox (1986) 180 Cal.App.3d 862, 875, 225 Cal.Rptr. 823, 830 a mother's trip with a child from Louisiana to her parent's California home, after leaving note to father that specified her location and phone number, "could hardly be considered reprehensible or objectionable conduct" within meaning of UCCJA)

Therefore, if you have a child and you have moved to San Jose, Santa Clara County or anywhere else in The State of California, and you want The State of California to issue custody orders, you must do so after you have resided here for a minimum of six (6) months. You cannot hide the child and your time here cannot be fore the purposes of a vacation or visitation with the children. Once the child has lived in this State for a minimum of six (6) months as their residence, then The State of California becomes the home state. If you are pregnant, and move to The State of California, and then the child is born here after you have changed your residence to The State of California, then The State of California is the home State of your child after the child has been born.

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