FORUM SHOPPING UNDER UCCJEA NOT OK WITHOUT CALIFORNIA FAMILY CODE CONSIDERATION

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In an important recent decision, California’s Second District Appellate has held that a trial court had erred with its findings under the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) regarding a more convenient forum without giving the parties the opportunity to present evidence on that issue per California Family Code §3427(b).

In the case of Brewer v. Carter (218 Cal.App.4th 1312, 160 Cal.Rptr.3d 853), Mother had given birth to Father’s Child in April of 2010.  The three lived together in Los Angeles until June 2011, when Mother took Child to Chicago for a family visit and never returned.  In August, Father, representing himself in pro per in court, filed a petition to establish his paternity of Child and for custody and visitation orders.  Wife tried to file a response, but a court clerk erroneously rejected her filing.

In September, Father filed a request to enter Mother’s default, but it too was rejected, this due to an improperly completed proof of service.  In December, Mother filed a paternity action in an Illinois trial court, which Father was unaware of.  Having relied on faulty legal advice, Mother believed that she did not need to file a response to Father’s case in California since her Illinois case was already pending.

The California trial court in Father’s case entered Mother’s default and scheduled a default prove-up hearing for June 2012.  At that hearing, Mother moved to set aside her default on grounds of mistake and excusable neglect.  She also served Father with her Illinois action.  Noting the Illinois action, the California trial court continued Father’s case until August 2012.

In the meantime, Mother filed a response in California, therein admitting that Child was conceived in California, and stating that her residence was in Illinois, where a case was currently pending.  She requested sole custody of the couple’s Child and reasonable visitation for Father.  Mother also claimed that she could not afford the cost of telephone service to appear at the August hearing.

At the California August hearing, the trial court set aside Mother’s default.  The court stated that it had communicated with the Illinois trial court and determined that Child’s home state was Illinois, not California, because the infant had not lived in California for six continuous months prior to Father filing his paternity action.  Therefore, the trial court concluded, the Illinois trial court should make custody determinations regarding the Child.  The trial court then continued the matter to October to permit Father to file a response and to allow further discussions with the Illinois trial court.  After those discussions, the Illinois trial court agreed that it should exercise jurisdiction in this case under the UCCJEA.

In August 2012, Father moved the California family law court for reconsideration.  In its ruling issued on October 1st, the trial court denied Father’s motion as not having been based on new law or facts.  However, the court did apply different reasoning on the jurisdictional issue and concluded that a trial court may, on its own motion, decline to exercise UCCJEA jurisdiction if another state is a more appropriate forum and California is an inappropriate forum.  The court determined it likely that there was relevant information in Illinois regarding Child’s medical providers and that the Illinois trial court was in a better position to determine the child’s best interests.

Father then appealed.  And California’s Second District reversed and remanded.

In its decision, the panel explained that under California Family Code §3421(a)(1), a trial court has UCCJEA jurisdiction if California was the child’s home state when the custody action was filed, or within six months of filing if the child is absent from the state, but one of the child’s parents continues to live in California.  Moreover, Family Code §3420 defines “home state” as the state where the child lived with a parent for at least six consecutive months immediately prior to the filing of the custody action.

In this case, as the trial court had belatedly determined, the trial court had UCCJEA jurisdiction over Father’s paternity action because Child had been out of California for only 72 days before the action was filed and Father continues to live in this state.  The appellate court justices noted that Illinois UCCJEA law is the same on this issue; thus, the Illinois trial court should have declined jurisdiction due to the pending California custody proceeding.

The panel further stated that the UCCJEA encourages “communication between the courts” regarding which has jurisdiction, and this was done in this case.  However, when the parties do not participate in those conversations, California Family Code §3410(b) requires the trial court to give them an opportunity to present facts and arguments before it makes its decision re jurisdiction.

The justices also noted that Family Code §3427 permits a trial court to decline to exercise UCCJEA jurisdiction if it determines that it is an inconvenient forum and another state is a more appropriate forum.  The panel stated that before a trial court makes that decision, it must consider all relevant factors, after permitting the parties to submit information on those factors.  Some of the factors to consider might be:

  • The length of time that the child has been in the other state
  • The distance between the two courts
  • The financial hardship to the parties, and

The degree to which each court is familiar with the facts and issues in the case.

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RECENT CALIFORNIA LEGISLATION AFFECTS PATERNITY

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AB 1349 is another important piece of law to be aware of that affects parentage in California.  This recent legislation amends several Family Law codes to revise certain provisions regarding the effect of a voluntary declaration of Paternity, particularly if a conflicting parentage presumption exists.  This bill also permits a sperm donor to be treated as the natural father of a child under specifically enumerated circumstances.

With certain exceptions, a man is conclusively presumed to be the father of a child under existing law if he was married to and cohabiting with the child’s mother.  Existing law also provides that if a man signs a voluntary declaration of paternity, it has the force and effect of a judgment of paternity, subject to certain exceptions.  As it stands, the law also provides that a man is rebuttably presumed to be the father if he was married to, or attempted to marry, the mother before or after the birth of the child, or he receives the child as his own and openly holds the child out as his own.

Under existing law, a voluntary declaration of paternity may be set aside by the court if genetic evidence establishes the man is not the father of the child, while the latter presumptions are rebutted by a judgment establishing paternity by another man.  Existing law also provides that if two or more presumptions conflict with each other, the presumption which on the facts is founded on the weightier considerations of policy and logic controls.

AB 1349 now provides that a voluntary declaration of paternity is invalid if, at the time the declaration was signed, the child already had a presumed parent, as specified, or if the man signing the declaration is a sperm donor.  AB 1349 authorizes a person who is rebuttably presumed to be the child’s parent under the above-described provisions to bring a motion to set aside a voluntary declaration of paternity, and requires the court to consider specified factors, including the nature, duration, and quality of the petitioning party’s relationship with the child in deciding whether to set aside the voluntary declaration of paternity.  The bill includes these proceedings among the exceptions to the provision that a voluntary declaration of paternity has the force and effect of a judgment of paternity.

AB 1349 provides that, in the event of a conflict between a rebuttable presumption of paternity and the voluntary declaration of paternity, the weightier considerations of logic and policy control.

Also, AB 1349 enables a sperm donor to be treated as a natural father if that relationship is agreed to in a writing signed before the child’s conception by the donor and the woman inseminated.  And a licensed physician performed the insemination.

PATERNITY JUDGMENT NULLIFIED WHEN PARENTS MARRY

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It’s official:  If you’ve had a child out of wedlock, and then you decide to marry your better half, any and all support provisions or child custody arrangements you guys made back then for the future will now become null and void.  Got that?

The case is Irmo Wilson & Bodine (2012), and it involved a Mother and Father who had a child before wedlock.  Mother would soon file a petition to establish a parental relationship and obtain custody and child support orders based on both parties’ voluntary declaration of paternity.  Later, Mother and Father married, but separated two years later.  Mother filed a petition for dissolution and the family court litigation began for real, ultimately leading to this appeal.

In reaching its decision in this case, the California Appellate Court reasoned that paternity actions are akin to divorce actions in so much that they both involve a determination of the separate rights and liabilities of parents for their children.

The marriage or remarriage by those parents automatically creates joint rights and liabilities for custody and support of the child and extinguishes any preexisting order of child support entered for the child’s benefit.  Upon the termination of the marriage or a second marriage between parents, custody and support issues will be visited anew.

In its wisdom the court concluded, “The dissolution legal proceedings have built-in protections for the best interest of the child…  Thus, the child will not be harmed by the fact that an earlier child support order was terminated upon the marriage or remarriage of the parents.”