How does the UCCJEA “more appropriate forum” exceptions affect which State will make custody and visitation orders over children?

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Earlier this week, we discussed the basics of how the UCCJEA determines which states get to make custody and visitation orders over children. We did not discuss the more appropriate forum exceptions of Family Code sections 3427 and 3428. These are discussed below.

As noted before, there are 4 types of jurisdiction under the UCCJEA: (1) Initial jurisdiction (2) Continuing, Exclusive Jurisdiction (3) Modification Jurisdiction and (4) Emergency Jurisdiction.

Sometimes, a California may have met the requirements to exercise initial or modification jurisdiction, but decline to exercise it because a more appropriate forum exists elsewhere. The opposite applies too. Sometimes, a court from another state may meet the requirements to exercise child custody jurisdiction, but find it is more appropriate for California (or another state) to exercise jurisdiction.

The two “more appropriate forum” exceptions are found in Family Code sections 3427 and 3248. Family Code section 3427 allows California to assume/refuse jurisdiction depending on which state is the more convenient forum, while Family Code section 3428 allows California to assume/refuse jurisdiction on the grounds of unjustifiable conduct (i.e. a parent hiding a child in a state for six months).

The inconvenient forum factors, as specified in Family Code section 3427, include:

(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.

Starting with initial jurisdiction, Family Code section 3421 allows California to exercise initial jurisdiction on more appropriate forum grounds even when it is not the home state if:

“…a court of the home state of the child has declined to exercise jurisdiction on the grounds that this state is the more appropriate forum under Section 3427 or 3428, and both of the following are true:

(A) The child and the child’s parents, or the child and at least one parent or a person acting as a parent, have a significant connection with this state other than mere physical presence.

(B) Substantial evidence is available in this state concerning the child’s care, protection, training, and personal relationships. “

If both of these requirements are met, California can assume initial jurisdiction even if it is not the home state.

With respect to modification jurisdiction, California can exercise modification jurisdiction even if the child has not resided in California for six months if another state determines that California “would be a more convenient forum” and if:

“(A) The child and the child’s parents, or the child and at least one parent or a person acting as a parent, have a significant connection with this state other than mere physical presence.

(B) Substantial evidence is available in this state concerning the child’s care, protection, training, and personal relationships.”

Read UCCJEA Blog – Part 1

The UCCJEA can get very complicated very quickly. If you have questions about an interstate jurisdictional matter, it is important that you discuss your rights with an experienced family law attorney. At the Law Offices of Nancy J. Bickford, our attorneys have successfully litigated complex cases under the UCCJEA. Don’t settle for less when determining your rights. Call 858-793-8884 in Del Mar, Carmel Valley, North County or San Diego.

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www.bickfordlaw.com