My spouse/partner took our child to another state and filed a restraining order against me. What do I do?

There are few things that can affect a parent emotionally like discovering that the other parent has removed their child from California and filed a restraining order in another state. The California legal system is difficult enough to navigate. Having to deal with another state’s legal system can make this process even more daunting.file0001635828147

Generally, the system of laws between states is designed to prevent a spouse who removes a child to another state from having a litigation advantage, even when they file a restraining order. This is because every state’s laws (except Massachusetts) is based on a uniform law called the Uniform Child Custody Jurisdiction and Enforcement Act (“UCCJEA”).

Under the UCCJEA, a state is considered to be the home state of a child if that child was living in that state for “at least six consecutive months immediately before the commencement of a child custody proceeding.” Absent very few exceptions, the home state should be the state that exercises jurisdiction. Under the UCCJEA, a state can still exercise home state jurisdiction if that state was “the home state of the child within six months before the commencement of the proceeding and the child is absent” from the state. Therefore, even if the child is removed from California but was living in California for the 6 months before the removal, California is still the home state for six months after the removal and should be exercising home state jurisdiction even if a restraining order is filed in another state.

While it is true that any UCCJEA state can assume emergency jurisdiction (which is why a restraining order filed in a brand new state is proper), if an action has been commenced in the home state of the child, the power for the second state to make restraining orders is limited in scope and duration under the UCCJEA. The orders made by the non-home state are intended to be a temporary stop gap to protect the parties and the children to allow the actual home state to act on the emergency. The UCCJEA requires the second state to “specify in the order a period that the court considers adequate to allow the person seeking an order to obtain an order” from the state properly exercising home state jurisdiction. Furthermore, both states are required to “immediately communicate” with each other to “resolve the emergency, protect the safety of the parties and the child, and determine a period for the duration of the temporary order.”  Remember, this language is taken right out of the UCCJEA. The California and every state not named “Massachusetts” have identical language and are required to abide by the same procedures.

It also usually behooves a party to ask for the immediate return of a child to the home state. To take a child out of the child’s home and file a restraining order in another state is an end-run around California’s move-away laws that could be frowned upon by a California judge. Of course, if the circumstances are serious enough to warrant moving out of state without notice, the judges would be sympathetic to that argument.

In my experience, this is an issue that judges need a lot of help to understand because of the UCCJEA’s complexity. Most litigants would be well served by legal representation.

Please contact us if you are considering a divorce from your spouse, a legal separation, or have questions regarding child custody and visitation. Nancy J. Bickford is the only Certified Family Law Specialist (CFLS) in San Diego County who is also a licensed Certified Public Accountant (CPA) with a Master of Business Administration (MBA). 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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