INITIAL CUSTODY DETERMINATION
The Uniform Child-Custody Jurisdiction and Enforcement Act (UCCJEA) grants jurisdiction to superior courts to adjudicate child custody matters. In order to have jurisdiction to make an initial child custody determination, under Family Code §3421(a), the state court must either:
1) Qualify as the child’s home state;
2) A court of the home state court declined to exercise jurisdiction on the grounds another state is the more appropriate forum, and there is a significant connection to the other state and substantial evidence is available concerning the child’s care;
3) All court’s under (1) and (2) have declined to exercise jurisdiction on the grounds another state is the more appropriate forum; or
4) No court of any other state has jurisdiction under (1), (2), or (3).
The Family Code defines “home state” as the “state in which a child lived with a parent or person acting as a parent for at least six consecutive months immediately before the commencement of a child custody proceeding. Parents, it is important to keep this in mind when you are filing for child custody orders in California. If you recently moved from another state, you might want to wait until California qualifies as the child’s home state before starting a custody battle. If the other parent recently moved with your child, California may still be able to exercise custody jurisdiction if you remained in California and it has not been over six months since your child moved away. Where you file and when can play a very critical role when seeking child custody orders.
JURISDICTION TO MODIFY
What about the circumstances where you had a different state make child custody orders, but you and the minor child have been living in California for over six months? The UCCJEA allows one state to modify the custody order of another state under certain circumstances. So long as the state seeking to modify has jurisdiction to make the initial child custody determination, that state may modify the home state’s orders if 1) the court of the home state determines a) it no longer has exclusive, continuing jurisdiction or b) that a court of the other state would be a more convenient forum; or 2) a court determines that the child, the child’s parents, and any person acting as the child’s parents do not presently reside in the other state.
- Initial Determination Standard
The court of the State seeking to modify another state’s original custody order must have jurisdiction under the standard of Family Code §3421(a)(1) or (2). See above.
- Exclusive, Continuing Jurisdiction
Under the UCCJEA, an original decree state has exclusive, continuing jurisdiction to modify its own decree until one of the following occurs: 1) the original decree court loses significant connection jurisdiction, or 2) the child, the child’s parents, and any person acting as the child’s parents no longer live in the state. If an original decree state has exclusive, continuing jurisdiction, no other state may modify the original orders, even if the child moves and establishes a new home state. This is important to keep in mind if you share custody with a parent who lives outside California, and that non-California state happens to be the original decree state for custody. If the other parent continues to live in that state, it does not matter if the child lives with you 75% out of the year and only 25% of the time with the other parent. If you want to modify the original custody order, you will have to file in the original decree state.
- More Convenient Forum
An original decree state may relinquish jurisdiction if it determines that another state would be a more convenient forum. The UCCJEA sets forth the following eight (8) factors the courts should consider in analyzing whether another state is a more convenient forum:
1) whether domestic violence has occurred or is likely to occur;
2) the length of time the child has resided outside this state;
3) the distance between the court of this state and the state that would assume jurisdiction;
4) the degree of financial hardship in litigating in one forum over the other;
5) any agreement 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.
If you are struggling to decide whether California has jurisdiction to make a child custody determination, I recommend consulting with a family law attorney.