by Commissioner Thomas H. Schulte
There was a time when family law litigants, practitioners, and judicial officers found themselves enmeshed in interstate child custody disputes with no guidance from the law to resolve the jurisdictional quagmire created by actions concurrently filed in more than one state. In 1968, in an effort to address this problem, The National Conference of Commissioners on Uniform Laws commenced a study intended to make recommendations for the adoption of a uniform set of rules, which could be enacted by all of the states. Thus was born the Uniform Child Custody and Jurisdiction Act (UCCJA). By the early 1980s, all fifty states adopted the UCCJA.
The purposes of the UCCJA were to avoid jurisdictional competition and conflicts, promote interstate cooperation, promote litigation of child custody matters where the child and family have the closest connections, deter abduction and unilateral removals of children, avoid relitigation of another state’s custody decisions, promote the exchange of information, and encourage assistance between the courts of sister states.1 While there have been a number of modifications and amendments to the Act, the original purposes of the UCCJA remain intact and should continue to be the guiding light when interpreting and applying the UCCJA.2 The current version of the UCCJA, now entitled the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), is found at California Family Code sections 3400 et seq. When properly applied, the UCCJEA calls for the resolution of jurisdictional contests within days or weeks of the commencement of the litigation, rather than months or years.
However, even with this well-drafted statute, we from time to time find ourselves enmeshed in drawn-out custody battles resulting in inordinate delays of the resolution of matters. Such delays cause great harm to the subject child or children, and drastically increase the expenses incurred by the parties. Upon reviewing the appellate decisions involving the Act, it is evident that the failure to appropriately apply the law at the very outset of the litigation causes these unfortunate delays.
The purpose of this article is to suggest a step-by-step approach to applying the UCCJEA by way of a brief series of questions designed to assist family law practitioners and judicial officers in the determination of the appropriate forum at the commencement of any proceeding. Before addressing these questions, it is important to note that there are certain terms in the UCCJEA with definitions that are unique to the Act. The misinterpretation of these terms is often the cause of a case’s ending up in an appellate court.
These terms include:
In addition to the definitions of these terms, it is also important to consider two fundamental principles to which the UCCJEA applies. First, there is no such thing as concurrent jurisdictions; at any point in time only one jurisdiction is in the driver’s seat, so to speak, in making the call on a jurisdictional dispute. At the outset of any litigation, when the very first orders are made, the home state, as defined above, has the sole and exclusive jurisdiction to act. In those rare circumstances where there is no “home state”11 or where the home state’s jurisdiction has terminated pursuant to Family Code section 3422, the state in which the request for initial or modification orders was first filed is designated as the appropriate forum to make the jurisdiction call.12
Second, the application of the “best interest” test is not the criteria upon which child custody jurisdiction is determined.13 The UCCJEA assumes that either competing jurisdiction is capable of determining what is in the best interest of the subject child. Whichever state has continuing or exclusive jurisdiction always has the discretion to determine, considering all of the factors, including the principle of forum non conveniens, whether it or another state is the more appropriate forum for the litigation.14 The application of these principles ensures that there is never a time when more than one state is authorized to go forward.
Step-by-step approach to determining if your state has jurisdiction
Employing this approach, let’s analyze two appellate decisions, one involving an initial filing and the second involving a request for modification of another state’s ruling.
Brewer v. Carter16
In Brewer v. Carter, the undisputed facts were that the parties lived together in California where their child was born in April of 2010.17 In June of 2011, fourteen months after their child was born, the mother took the child to Illinois ostensibly to visit her family.18 On August 8, 2011, after the mother failed to return with the child, the father filed a petition to establish his parental relationship, seeking joint legal custody and visitation rights.19 On December 27, 2011, just barely over six months from her arrival, the mother filed an action in Illinois, requesting custody and visitation orders concerning the child.20 Initially, neither court was informed of the action filed in the other state.21 Once the courts became aware of the conflict, they communicated with one another as provided in California Family Code sections 3410 and 3426.22 California ruled that Illinois was the child’s home state and Illinois agreed.23 The father appealed, and two years later the Second District Court of Appeal reversed.24
Employing our question-and-answer approach, let’s examine how this case might have been decided at the earliest stages of the litigation. From the California court’s understanding of the facts, was the father requesting initial orders or modification of an earlier order? Clearly, the request was for an initial determination of a child custody matter as described in California Family Code section 3402(h). Next, in August of 2011, when the action was first filed, had the child resided in California, not counting any temporary absences, for at least six months prior to the filing? Once again the answer is yes. Not counting the mother’s removal of the child from California to visit relatives, the child had resided in California for more than six months. Therefore, California acquired home state jurisdiction once the case was filed in its court. However, when the Illinois court contacted California, it erred in ruling that Illinois was the home state.
Examining the matter from the viewpoint of the Illinois court, it is understandable that the first impression was that Illinois was the home state because the mother failed to inform the court of the pending action in California. Thereafter, when Illinois did become aware of the conflicting action, essentially asking itself question number three, that court appropriately responded by communicating with California. Keeping in mind, that once a home state is established, that state continues to have exclusive jurisdiction until it loses jurisdiction pursuant to California Family Code section 3422, the mistake on Illinois’s part was agreeing with the California court that Illinois was the home state.
It should be noted in this case, that while the appellate court disagreed with the grounds for the lower court’s ruling, it pointed out that once the California court recognized that it had acquired exclusive jurisdiction, pursuant to the home state rule, it could have considered relinquishing its jurisdiction in favor of Illinois applying the principles of forum non conveniens. However, it should be noted that relinquishing jurisdiction would have required notice to the parties and an opportunity to be heard, which never occurred.
Zenide v. Superior Court25
Concerning matters involving modification of orders made in other jurisdictions, let’s take a look at Zenide v. Superior Court. The undisputed facts in this matter indicate that the parties were married in France in 1980.26 The subject children were born in France in 1981 and 1984, and the family continued to reside in France until the parents divorced in 1989.27 The French court initially awarded physical custody to the father with specified visitation rights to the mother.28 After the father moved with the children to Texas, the mother filed an action to modify the custody order in France, ultimately resulting in a change in custody to her.29 The father refused to comply with the French court’s order, kept the children in Texas, and filed an action in that court which, in contravention of the French orders, awarded custody to the father.30 In 1993, the father moved with the children to California, after which the mother filed an action in the California court to enforce the French order.31
This case is a good teaching tool as it illustrates two important principles of the UCCJEA. First, it emphasizes that the Act applies in disputes involving competing litigation between states and foreign countries as well as between the states. This is true even if the foreign country does not recognize our orders in the same fashion or is not a signatory to the Hague Convention. Second, a court is not required to recognize a prior order of another jurisdiction, whether it is a state or a foreign country, if that competing court’s acquisition of jurisdiction was not substantially in conformity with the principles of the Act.32
Applying the question-and-answer approach, we can see how the California trial court correctly analyzed this case, as it relates to both the French and Texas orders, both of which occurred prior to any litigation filed in California. Keep in mind that in this matter, California was not asked to modify either of the prior orders, but rather to enforce whichever order was made in substantial conformity with the UCCJEA. The court first looked at the Texas order, the most recent in time. Was the Texas order substantially in compliance with the UCCJEA? When the action was filed in Texas, was it a request for an initial order or for a modification? Obviously the Texas action was sought for the purpose of modifying the French orders. Moving then to question six, did the children at the time the Texas action was filed have a home state? The answer is yes. Even though the children and father had been living in Texas for nearly two years, France had acquired home-state jurisdiction. That is to say, continuing and exclusive jurisdiction remained with France. Nothing had occurred that would cause France to lose its jurisdiction pursuant to California Family Code section 3422. Therefore, California rightfully did not recognize the Texas order.
The opposite result occurred when the California court considered the French orders. Since France was the home state at the outset of the litigation, and at least one parent remained in that home state, even though the children and the other parent were absent from that jurisdiction for years, it continued to have exclusive jurisdiction to determine any modification. Properly applying the Act in a manner consistent with its important underlying principles, the California trial and appellate courts rightly denied recognition of the Texas orders and enforced those of France.
These two matters illustrate the detrimental effect of the failure to correctly apply the guidelines and principles of the UCCJEA at the outset of litigation. In Brewer, two years passed with a child being denied contact with an absent parent. In Zenide, as a result of the Texas court’s error, it was over three years. Any mental health professional would attest to the serious emotional and psychological consequences to the children in these matters. When properly understood and applied, the Uniform Child Custody Jurisdiction and Enforcement Act protects children who are the subject of this important class of litigation. When confronted with these issues, the attorneys representing the parties should request that their matter be given priority. The court should respond in the affirmative when asked, and when not asked, give these matters priority on its own motion. Time is of the essence. The Act expects, even demands, immediate action designed toward the earliest resolution of the jurisdictional conflict.
Thomas H. Schulte, Commissioner (retired) practiced Family Law for seventeen years prior to joining the court as a commissioner. For eighteen of his twenty years on the bench, he presided over a family law department.