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.

CUSTODIAL PARENT CAN “MOVE-AWAY” WITH CHILD IF FACTORS MET

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An important case has recently come down wherein it was determined that a California family law trial court failed to understand the findings it was required to make in deciding a “move-away” motion by a custodial parent.  As a result, in the case of F.T. v L.J. (2011) 194 CA4th 1, 123 CR3d 120, California’s Appellate Court ruled the trial court improperly denied the father’s request to move out-of-state.

The facts of the case are as follows:

The couple dated briefly, but they were unmarried at the time of the birth of their Child.  At first, the Child lived with his Mother.  When Child was a little over a year old, Mother deliberately burned him with a hot curling iron.  Father filed for a paternity action, and as a result, he became the primary custodial parent, with Mother initially having only supervised visitation.  Through the course of several evaluations and mediations, the parties stipulated to a series of temporary orders.

Father initially wanted to move to Texas with the couple’s Child.  But when the Child was four (4) years old, Father sought to move to the state of Washington, where his new wife had a business and lived with her two children.  When a custody evaluator recommended to the trial judge against the move due to concern regarding the damage that would ensue to the Child’s relationship with his Mother and Stepfather if the Father moved Child to Washington, the trial court denied Father’s request to move.  And Father appealed.

California’s Court of Appeals reversed the trial court’s erroneous order.  It held that the trial court had misunderstood the factors that needed to be weighed in evaluating a “move-away” for a custodial parent.  Father had argued that as the primary custodial parent, he had a presumptive right to move with the child.  The appellate court responded that, because no permanent custody orders had ever been made, there was no such presumptive right, and the best interest standard must be used.

However, the appellate court went on to state, the trial court appeared to misunderstand the factors that are to be used in determining a child’s best interest.  Specifically, the trial court did not make any orders to accommodate the Father’s proposed move, and the record showed that the court assumed that the father would not move if his request were denied.

It was also decided that the trial court had incorrectly determined that Father’s reason for moving was insufficient, even though a custodial parent is not required to show that a proposed move is “necessary.”  Lastly, the appellate court reasoned that the trial court gave too much weight to the probable disruption of the Child’s relationship with his Mother, which was only one factor to be considered.

GRANDPARENTS CAN HAVE VISITATION IF IN CHILD’S BEST INTEREST

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For those who have grandchildren, there’s an important case to be aware of that affects custody and visitation involving grandparents.  In the case of Hoag V. Diedjomahor (2011 Cal App Lexis 1307), the California appellate court ruled that a trial court property allowed visitation of two children by their maternal grandmother under Family Code §3102 over their father’s objection, when it was determined that visitation was in the children’s best interest.

The facts involved in Diedjomahor were these:  After a couple’s 2005 marriage, they initially lived with the Wife’s mother (Grandmother in this case).  The couple separated in 2007, with both Wife and child staying with Grandmother.  In 2008, during a brief reconciliation, all three (3) moved in with Father.  A second child was born.  Wife petitioned for divorce in February of 2009, then died one month later.

Grandmother petitioned for guardianship of the children in May of 2009, alleging that Father was unfit as a parent, but the local child protective services agency found no cause for concern.  In the guardianship proceeding, the court ordered the parties to agree to a visitation schedule, but initially the father was uncooperative, and the court imposed a visitation schedule in June 2009.

In October of 2009, Grandmother filed a separate petition for visitation under Family Code §3102, and two months later the guardianship matter was dismissed.  In January 2010, the visitation case went to mediation, and a trial court adopted the mediator’s recommended visitation schedule as its temporary order.  Trial was in March of 2010, wherein father conceded that the children loved their Grandmother, and he said that he would allow visitation voluntarily, while also expressing some opposition to visitation arising from her efforts to obtain custody.

The trial court granted the visitation petition and ordered a continuation of the temporary visitation schedule, with minor adjustments.  The court acknowledged that §3102 had been found “unconstitutional when applied to a surviving parent who is neither unfit nor opposed to occasional visitation,” and that there was “overwhelming evidence” that the father was a fit parent.  However, it found that the father’s offers of reasonable visitation to the Grandmother were “feigned at best without any substance,” and that visitation with Grandmother would be in the children’s best interest.  Father then appealed, with the court of appeal affirming the judgment, holding that the trial court properly found that visitation by Grandmother would be in the children’s best interest.

CASE FOR BIOLOGICAL MOTHER BODES WELL FOR SAME-SEX COUPLES

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An important gay rights case has come down in Florida.  It involves a lesbian couple that lived together for eleven years, shared bank accounts and income, and raised a child, who is now eight.  A case based on some similar facts has already been decided in California.

The biological mother, who goes by the name of Tina, had her egg fertilized with donor sperm that was implanted into her partner’s womb.  But then their romance fell apart when the child was two.  And the Florida courts had to decide who would be the legal parent:  the biological mother or the birth mother who carried the unrelated child for nine months in her womb.

Initially, citing Florida law, the trial court summarily decided with Tina’s ex partner.  But on December 23rd of last year, a state appeals court rejected the law as antiquated and recognized both women as legal parents.  Citing the case as “unique,” the 5th District Court of Appeal ruled that both the U.S. and Florida constitutions trumped Florida’s law.

As it stands, the birth mother has asked for a stay of biological mom’s rights, and the case will most assuredly proceed to the Florida Supreme Court, and, quite possibly the U.S. Supreme Court.

The plight of both women and their young daughter highlights the murky laws that surround same-sex families, especially in states, such as Florida, that do not recognize gay marriage.  Although they acted to the world as a committed couple, one thing that might have helped Tina avoid giving rights to the non-biological mother was if she had first gone to a lawyer to get surrogacy paperwork.

In reaching its decision, the appellate court considered this to be a moral, ethical, and legal issue, and it recognized the intent of the parties to deliberately bring a child into the world and to raise her together.  The court ruled that the problem with the Florida law was that it provided no distinction between biological and birth mother and it had not caught up with science or the state of same-sex marriages.

CUSTODY AND VISITATION WITHIN THE MILITARY

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With America’s war machine seemingly leaving no stones (or countries unturned), we’ve seen a sharp rise in foreign deployments among military service members, especially Reservists.  This has led to much strain on military family ties.  All branches of the armed services have experienced sharp spikes in divorce rates, which since 2000 have risen nearly 40%.  And of course the main sufferers have been the children of the military who are subject to the military laws covering custody and visitation.

Factually, women military members divorce their spouses at more than double the rate of their male counterparts.  When it comes to single parents in the armed forces, the predominant arrangement has been for secondary custody – access or visitation rights – not primary physical custody.  Based on Defense Department regulations, first-term single enlisted parents cannot have custody of a minor child.  So watch out what you wish for if you decide you want to fight for the stars and stripes, while trying to raise a family, and keep it in one piece.

Peace and Blessings!

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