Jurisdiction concerns the court’s authority to hear and determine legal matters. In order to hear your family law matter, the California court must have jurisdiction over the subject matter, jurisdiction over the “res,” and jurisdiction over the parties (otherwise known as personal jurisdiction).
In any proceeding under the Family Code, jurisdiction rests with the superior court. This means the superior court has subject matter jurisdiction over marital status actions, adoptions, parentage, domestic partnership actions, child custody/visitation proceedings, support proceedings, and proceedings for protective/restraining orders that fall under the Domestic Violence Prevention Act.
“In Rem” jurisdiction means the court has jurisdiction to dissolve an existing marriage located within California. It is similar to personal jurisdiction, and the location of the marital res is tested by either parties domicile (at least one party is located in California and has the intent to remain there indefinitely). This means you cannot take a vacation from Texas to Disneyland, swing by the local superior courthouse and file a Petition for Dissolution, and have your spouse served with the paperwork the next day when you are waiting in line for Splash Mountain. The court does not have jurisdictional authority to dissolve your marriage during your California vacation. However, if one spouse is domiciled within the state of California at the time of the proceeding, the court has in rem jurisdiction. So let’s say the previous couple was married in Texas, but after they separated, spouse A moved to California. Four months later, spouse B takes a vacation to Disneyland and is then served with the Dissolution paperwork. In that scenario, the court would have jurisdiction over the marital res because spouse A is currently living in California.
Finally, in order to make any determination regarding your family law case, the California Superior Court must have personal jurisdiction. Where courts are lacking this fundamental jurisdiction, there is an absence of authority or power to even hear, let alone determine, your case. For couples who were married in California, continued living in California during the marriage, and are still living in California after separation, personal jurisdiction is not going to be an issue. But for couples who are living in different states or recently moved to California, filing for divorce is more complicated.
The California State Legislature has empowered California courts to exercise personal jurisdiction to the “furthest extent of due process.” [See CCP §410.10, “long-arm” statute]. This means California permits the exercise of personal jurisdiction over an individual for any one of the following:
- Physical presence in the state of California when personally served with process;
- Domicile in the forum state at the time the suit is commenced;
- Consent to the exercise of personal jurisdiction;
- “Minimum Contacts” with the state of California (there are limitations to this one, but they are not the subject of this blog entry).
Remember the Disneyland example above where spouse B was visiting from Texas and was served with dissolution paperwork during their vacation? That is sufficient to evoke California’s authority over that person. Even a non-resident just passing through the state, if personally served, is subject to California’s jurisdiction. It doesn’t matter how fleeting the visit is, if a non-resident is personally served with a lawsuit while physically present within California, this state has jurisdiction to bind that non-resident to judgments and court orders. Some of you may be thinking, ‘that is a little unfair,’ but regardless of whether this concept is right, it is a long standing legal principal and the courts will find this is a sufficient basis for personal jurisdiction.
There are certain limitations, however, such as someone who is brought to California by force or fraud. You can’t hog-tie your spouse who lives in Nevada, throw them in the trunk of your car, drive to the California border, and have them served with dissolution papers after they regain consciousness. While some of you reading this may have that fantasy, don’t do it. Even if you were successful in forcing your spouse to California, or inducing them to visit for your fake cat’s fake funeral, the courts would not consider this valid personal jurisdiction.
Assuming the court has all three forms of jurisdiction outlined above, don’t forget a California court will not enter a Judgment “unless one of the parties to the marriage has been a resident of this state for six months and of the county in which the proceeding is filed for three months next preceding the filing of the petition.” [See Family Code §2320(a)]. This requirement does not apply to a California marriage between persons of the same sex. [See Family Code §2320(b)]. So make sure BEFORE you file your Petition for Dissolution, Legal Separation, Parentage, etc, that at least ONE of the parties has been a resident of the state of California for at least six months and a resident of the specific county for at least three months.