For most parents who live in California, it is not difficult to figure out that California is the correct jurisdiction for filing their custody and/or child support matter. Where it becomes a bit challenging for parents is under the following scenarios: 1) one parent lives in California and the other parent lives in another state or country; 2) one parent has abducted the child and moves out of state and then files a custody motion in the new state. Other factors affecting jurisdiction is whether or not the parties ever married and/or whether or not there are prior custody orders. Before anyone considers filing a motion, or has already filed a motion, for custody, visitation and support , it is important to determine whether the legal paperwork has been filed in the proper state and proper courthouse.
What is Jurisdiction?
Simply put, jurisdiction is what creates the legal authority for a court to make orders and enable them to be enforceable against one or both parties. There are two types of jurisdiction—personal jurisdiction and subject matter jurisdiction. Personal jurisdiction means the court’s power over an individual; whereas, subject matter jurisdiction is the court’s power over the subject. An example of personal jurisdiction is where a California court orders husband who has established residence in California to pay spousal support to his wife who lives in Miami. (The reverse could not be true if, for instance, Husband (the payor) lives in Miami and Wife (the payee) lives in California. Examples of subject-matter jurisdiction include, for instance, dissolving the marriage, issuing custody, visitation and child support orders, dividing the assets and debts, etc. This blog focuses primarily on subject matter jurisdiction and all references to the term “jurisdiction” are to subject matter jurisdiction.
When Does California have Presumed Jurisdiction?
California is the presumed state for jurisdiction over custody and visitation issues when there are no prior existing custody or visitation orders made by any other state or country and the child and the contesting parties have all been in California for a substantial period of time and are considered residents of California. In such cases, there would be no reason to believe that there would be any interstate jurisdictional issues. If the California courts have jurisdiction to make orders, it will usually be under one or more of the following California Family Law codes: section 200, 2010(b), 3101(a), 3103(a)).
Domestic violence and Jurisdiction
If there is a parent-child relationship established under the California family code (e.g. family code 6323), the court is able to make what are known as “ex parte orders” regarding temporary custody and visitation of minor children. An ex parte order is an order made by the court on an emergency basis—and upon a showing of “good cause.” Under such circumstances, an emergency (Band-Aid-type) custody order is put in place until the court has time to thoroughly consider the matter at a later date—at a regular hearing. (If there were no ex parte emergency custody orders, the mother and/or children could be subjected to further violence and abuse for several days and weeks until the court was scheduled to hear the matter.
An interstate jurisdictional conflict will arise when the parties lives in separate states. The governing law in such cases is the California uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) and the federal parental Kidnapping Prevention Act of 1980 (PKPA). The UCCJEA applies also to international custody disputes.
In cases dealing with international conflicts, there is also the Hague Convention of the Civil Aspects of International Child Abduction, adopted on October 25, 1980 and the International Kidnapping Crime Act (IPKCA).
In Marital Actions Where One Party Lives in California and the Other Parent Does Not
As a general rule, a California court has jurisdiction over the custody of the minor children of the marriage. (See California Family Code 2010(b)) The California court’s jurisdiction is always secondary to federal statutes governing interstate conflicts.
Bases for California Jurisdiction
The legal bases for which a California court may assume jurisdiction to make initial custody or visitation orders in interstate matters is under the UCCJEA. So long as jurisdiction is established under the California Act and proper notice requirements are met, neither the physical presence of nor the personal jurisdiction over a party or child is required to make a custody determination.
Under the UCCJEA, California may assume jurisdiction if it is the child’s home state at the time the action is commenced. California may also assume jurisdiction if:
- California has been the child’s home state within 6 months before the action is commenced;
- The child is absent from California; and
- A parent or a person acting as a parent continues to live in California.
A child’s home state is the state in which the child has lived with a parent, or a person acting as a parent, for at least the 6 months immediately preceding or if the child is less than 6 months old, from birth. Periods of temporary absence of any parent or someone acting as a parent count as part of the required period to establish jurisdiction.
Some Preliminary Issues to Consider for Purposes of Establishing California Jurisdiction
- Are there any prior agreements about jurisdiction between the parties?
- Are there any prior orders on the issue of custody and jurisdiction in other states?
- If there are any prior orders regarding custody and/or visitation, do they mention anything about the out-of-state court reserving exclusive jurisdiction on the issues?
Venue—Proper County to File a Petition for Custody
For most parents, determining the proper California county to file their custody action is no problem. A problem arises, however; if the parties live in different counties. As before, the court will look to determine what California county the child has resided in for the 6 months immediately preceding the action. Where it can get a bit complicated is where the parties have been working under an informal agreement where they share 50/50 custody and visitation and thereafter one of the parents later decides to file a motion for a change of custody (from the party’s prior written agreement). For example, Mother lives at the outskirts of San Francisco (near San Francisco State University) and Father lives in Daly City. In terms of miles, the parties are less than 5 miles apart; however, the parents each reside in different Counties—Mother resides in San Francisco County and Father resides in San Mateo County.
Where things can also be a bit complicated is where, for instance, Father picks up the child for a weekend visit (while visiting from Los Angeles) and decides to keep the child and return the child with him/her back to Los Angeles. Upon his return, Father files a motion with the court in Los Angeles seeking sole physical and legal custody. The problem with the court pleadings (FL-300—Request for Orders) is that nowhere on the form does it ask the parent to establish jurisdiction. As a rule, however, venue (the county in which the case is filed) is where the child resides. Sometimes a factual analysis will need to be made to determine the child’s residence. For example, where does the child go to school, where are the child’s doctors (pediatrician, dentist, etc.) located, etc? If a judge determines that their court is the improper “forum” for the legal matter, they will order that the matter be transferred to the correct venue, e.g. the county where the child is shown to reside—based on the evidence provided to the court.
While on its face, the laws of California appear to be black and white, the problem is that the facts can create a sea of gray—as the facts of each case is unique and complicated. It is for this reason and others that a person dealing with custody matters should, at the very least, consult with an experienced family law attorney.
There is much to be said about jurisdiction. The purpose of this blog post was to provide an overview of the issues that may arise in cases where jurisdiction is at issue and to give you some food for thought if this issue is relevant to your custody case.
Should you need legal assistance in your custody matter, please call our office to discuss your matter.
Legal Disclaimer: Everything on this blog pertains to California law only and is written by an attorney licensed to practice only in the State of California. Further, information provided on this blog post or this website is to be used for general informational purposes only and is not to be construed as legal advice in any way shape or form. The underlying purpose of this blog post is to provide the reader with general information to use in talking with an attorney and/or as a general guide when conducting their own research on their particular legal matter. Finally, keep in mind that if you are not a California resident and/or your matter is not based in California, the laws may differ in your state. In such cases, it is recommended that you seek legal assistance and/or review information that relates to the laws of your state.
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