We live an increasingly mobile society, so it’s not unusual for families to find themselves in different parts of the country for a multitude of reasons. So, how is it decided which state gets to make custody and visitation orders over the children in these situations?
The Uniform Child Custody Jurisdiction and Enforcement Act (“UCCJEA”) is a common body of rules adopted by every single state (except Massachusetts). A quick glance at the UCCJEA will quickly resolve the overwhelming majority of these questions. For the purposes of this blog post, the rarely used more appropriate forum exceptions will not be discussed.
There are 4 types of jurisdiction under the UCCJEA: (1) Initial jurisdiction (2) Continuing, Exclusive Jurisdiction (3) Modification Jurisdiction and (4) Emergency Jurisdiction.Initial jurisdiction is described in Family Code section 3421. California has jurisdiction to make an initial child custody determination if California “is the home state of the child on the date of the commencement of the proceeding, or was the home state of the child within 6 months before the commencement of the proceeding and the child is absent from this state but a parent or person acting as a parent continues to live in this state.” The “home state” is defined as the “state in which a child lived with a parent or a person acting as a parent for at least six consecutive months immediately before the commencement of a child custody proceeding. In the case of a child less than six months of age, the term means the state in which the child lived from birth with any of the persons mentioned” by Family Code section 3402.
So if the child was in California for the six months before the first child custody proceeding was commenced, California could assume jurisdiction.
Once California has jurisdiction over the child, under what circumstances does California cede jurisdiction to another state? Under Family Code section 3422, California has continuing, exclusive jurisdiction to make orders over a child unless:
“(1) A court of this state determines that neither the child, nor the child and one parent, nor the child and a person acting as a parent have a significant connection with this state and that substantial evidence is no longer available in this state concerning the child’s care, protection, training, and personal relationships. (2) A court of this state or a court of another state determines that the child, the child’s parents, and any person acting as a parent do not presently reside in this state. ..”
The language of this statute can be intimidating, but it can be boiled down to the following rules of thumb:
1. California will continue to have jurisdiction to make custody and visitation orders if at least one parent remains in California and that parent continues to exercise visitation rights with the child (even if the child lives in another state). This is pursuant to Kumar v. Superior Court.
2. If the neither of the parents nor the child live in California anymore, California no longer has jurisdiction to make orders.
When can California assume jurisdiction and modify a child custody order from another state? Pursuant to Family Code section 3423, California cannot modify another state’s order unless it would have jurisdiction under Family Codes section 3421 AND either of the following circumstances exist:
“(a) The court of the other state determines it no longer has exclusive, continuing jurisdiction under Section 3422 …
(b) A court of this state or a court of the other state determines that the child, the child’s parents, and any person acting as a parent do not presently reside in the other state.”
In other words, if the child has been in California for six months and neither the parents nor the children continue to reside in the state that originally made the last custody order, California can exercise jurisdiction over the child.
Finally, we get to Family Code section 3424, temporary emergency jurisdiction. Temporary emergency jurisdiction trumps all the other rules. California always has jurisdiction if the child is “present in the state and has been abandoned or it is necessary in an emergency to protect the child because the child, or a sibling or parent of the child, is subjected to, or threatened with, mistreatment or abuse.” This is so, even if California would not otherwise have jurisdiction under Family Code sections 3421, 3422, or 3423.