I
had a case recently where a married couple with one child lived in Oregon and
the parties had difficulties and separated.
The Father moved to California, while the mother left with the children
to Arizona. If Father were to file for
divorce in California he would have to meet the residency requirements under
California Family Code Section 2320. Mother
had to meet similar requirements before filing her Petition for Dissolution of
marriage in Arizona. Of course, personal
jurisdiction of a California Court comes into play especially if mother had no
contacts with California, but that issue aside.
In
California, each party with children is required to file a UCCJEA declaration
on the form FL-105. This declaration is
to comply with California Family Code Section 3400 et seq. Essentially, the party is to provide a
declaration of the child’s residency for the past 5 years. The UCCJEA declaration is required if you
file for divorce in California with children.
Father
filed in California for Dissolution even though it was questionable that he met
the residency requirements. He also
filed a UCCJEA declaration where he did not disclose that Mother filed a
Petition for Dissolution in Arizona earlier.
Under
the Uniform Act or UCCJEA, the court that has notice of another state’s pending
custody action under California Family
Code 3421. There are several ways
that a California Court can confer jurisdiction over the custody dispute: (1)
California must be the child(ren)’s home
state; (2) The child(ren) have a significant connection and substantial
evidence exists in favor of California asserting jurisdiction. (3) California
is the more appropriate forum. (4) No court of any other state would have jurisdiction
under (1), (2), & (3).
1. “Home state” means a state where the child lived with the parent
for at least six consecutive months immediately before commencement of the
custody proceeding. California Family
Code 3402(g).
2. “Significant connection” and “substantial
evidence” California courts
can only exercise custody jurisdiction if all the following
conditions are satisfied: (a) No other state has “home state” jurisdiction
or a court of the home state has declined to exercise jurisdiction on the
grounds that California is the “more appropriate forum” under Cal. Fam. Code §
3427; and (b) The child and the child’s
parents, or child and at least one parent have a significant connection with
California other than mere physical presences; and (c) substantial evidence is available in this
state concerning the child’s care, protection, training and personal relationships.
A parent’s short term presence in the state, even if sufficient to confer
personal jurisdiction and the exercise of in rem jurisdiction of the marital
res, is not sufficient for custody
jurisdiction; there must be additional factors establishing closer ties with
the state.
3. Other states have declined jurisdiction in
favor of California as the “more appropriate” forum: There has been no other state that has declined
jurisdiction over custody based on California being the more appropriate forum.
This just means that another state had
the chance to have jurisdiction or to take the case, but declined or refused to
do so because California was more appropriate.
4. California Jurisdiction by “default”: California has jurisdiction to make an
initial custody determination if no court of any other state would have
jurisdiction under the first three tests.
Cal. Fam. Code 3421(a)(4). This
means that the court will look at the other states and whether they would be
the proper state under the first three tests above.
California Family
Code Section 3427 provides a “more appropriate forum” analysis to aid Courts in
their determination as to which state, if any, is the most appropriate forum
for adjudication of the custody matter.
That is, prior to this Court determining whether it has jurisdiction or
whether it is an inconvenient forum, the Court is required to analyze as an
initial matter whether another state is a more appropriate forum. See Cal. Fam. Code, §3427(a)-(b). To determine whether or not a more appropriate forum exists for child
custody matters, the Court looks at all relevant factors, guided by a
non-exclusive list set forth in Fam. Code §3427(b)(1-)-(8):
·
(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.
In the above code
sections I’ve listed is some of the analysis that goes into a Inter-state child
custody dispute. Essentially, California
needs to determine if it has an interest in the dispute and if it is convienent
for the parties to litigate in California.
These along with other legal theories will aid your case. If you have an inter-state or
inter-jurisdictional custody dispute or you think that you may have one it is
best to get advice from an attorney which understands the law.
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