In this appeal the appellant challenges a specific ruling of the family court on her request for an order to modify a child custody and child support order issued by a North Carolina court. The family court granted in part and denied in part the appellant’s request, without first determining whether the California court had jurisdiction under the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA; Fam. Code, § 3400 et seq.).
The only one at issue in this appeal is Mother’s request to delete a provision that limited each parent’s contact with certain adults when the children were visiting that parent Visitor Provision of the North Carolina order.
What is interesting in this matter is the Visitor Provision in the North Carolina order is entitled “Persons of the Opposite Sex” and provides in full: “Neither Father nor Mother shall have any adult unmarried person of the opposite sex unrelated by blood or marriage stay overnight at their place of residence when the minor children are in their physical custody. Should either party engage in an adult romantic relationship with any other individual, said party shall not intentionally allow said individual to be in the presence of the minor children until such time that the parties have obtained a divorce judgment. The minor children shall at no time intentionally be in the presence of Mr. [A.R.]. That should the minor children be unintentionally in the presence of Mr. [A.R.], Mother has the affirmative obligations to remove the minor children from Mr. [A.R.]’s presence.”
The California Court of Appeal’s review of law on the UCCJEA:
The UCCJEA determines the proper jurisdictional situs as between interested states for litigation of child custody determinations—which includes virtually any custody or visitation dispute (§ 3402, subd. (c)). As applicable here, the UCCJEA applies in a “child custody proceeding”—which, is defined in part as “a proceeding in which legal custody, physical custody, or visitation with respect to a child is an issue” (§ 3402, subd. (d))—commenced on or after January 1, 2000. (§ 3465.) ” ‘It is well settled in California that the UCCJEA is the exclusive method of determining subject matter jurisdiction in custody disputes involving other jurisdictions.’ ” (Ocegueda v. Perreira (2015) 232 Cal.App.4th 1079, 1084; accord, In re Stephanie M. (1994) 7 Cal.4th 295, 310 [same; under the Uniform Child Custody Jurisdiction Act (UCCJA), Civ. Code, former § 5150 et seq. (Stats. 1973, ch. 693, § 1), which later became former § 3400 et seq. (Stats. 1992, ch. 162, § 10)4].)
Accordingly, UCCJEA jurisdictional requirements must be satisfied whenever a California court is called upon to make either an initial or a modified custody determination. (In re Marriage of Arnold & Cully (1990) 222 Cal.App.3d 499, 502 [under the UCCJA].) ” ‘[A]mong the primary purposes of the [UCCJEA and its predecessor, the UCCJA,] is to encourage states to respect and enforce the prior custody determinations of other states, as well as to avoid competing jurisdiction and conflicting decisions.’ ” (In re Marriage of Fernandez-Abin & Sanchez (2011) 191 Cal.App.4th 1015, 1037.) “The UCCJEA ensures that only one state has jurisdiction to make ‘child custody determinations’ ” at any one time. (Ibid.) In this regard (and as applicable in this appeal), the UCCJEA defines a “child custody determination” to include a “modification order” of a ruling by a “court providing for the legal custody, physical custody, or visitation with respect to a child.” (§ 3402, subd. (c).)
Once an out-of-state custody order is registered in California under the UCCJEA—as Mother did in initiating the underlying action here—as a matter of full faith and credit, the order determining child custody is enforceable in California as a California judgment by way of any relief normally available under California law. (§ 3441 et seq.)
However, as an independent consideration, there is the additional issue of whether California has jurisdiction to modify an out-of-state custody order: “A court of this state shall recognize and enforce, but may not modify, except in accordance with [section 3421 et seq.], a registered child custody determination of a court of another state.” (§ 3446, subd. (b), italics added.) That is because, in cases like the present one, ” ‘once the court of an appropriate state [citation] has made a “child custody determination,” that court obtains “exclusive, continuing jurisdiction[.]” ‘ ” (Fernandez Abin, supra, 191 Cal.App.4th at p. 1040, italics added.)
As such, absent the requisite determination outlined in the immediately following paragraph, “the court of another state, including California, ‘[c]annot modify the child custody determination[.]’ ” (Ibid.; see §§ 3421, subd. (b), 3422, subd. (a), 3423, 3446, subd. (b).) Except in emergency situations not present here (§ 3424), section 3423 directs that a California court may not modify an out-of-state custody order unless both of the following have been established:
1. California has jurisdiction to make an initial determination under section 3421, subdivision (a)(1) or (2); and
a. The out-of-state court has determined either that it no longer has exclusive continuing jurisdiction under section 3422 or that California would be a more convenient forum under section 3427, or
b. The out-of-state court or a California court determines that the child and the child’s parents do not presently reside in the out-of-state forum.
If a California court determines from either party’s first pleadings related to the foreign custody order under section 3429 (at times, section 3429 documents) that a child custody proceeding has been commenced in an out-of-state forum having jurisdiction “substantially in accordance with” the UCCJEA, then the California court “shall stay” its proceeding and communicate with the other state’s court. (§ 3426, subd. (b), italics added.)
“The aim is for the two courts together to determine which of them is the ‘more appropriate’ forum to exercise jurisdiction.” (Hogoboom & King, Cal. Practice Guide: Family Law (The Rutter Group 2018) ¶ 7:129, p. 7-60.) If the out-of-state court having jurisdiction “substantially in accordance with” the UCCJEA does not determine that the California court is a “more appropriate” forum, then the California court “shall dismiss” its custody proceeding. (§ 3426, subd. (b).)
Accordingly, without reaching the merits of the arguments related to the substantive ruling on appeal, the California Court of Appeal reversed the order because, based on the record before the family court at the time it ruled, the court lacked jurisdiction to modify the North Carolina order.
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* Disclaimer – Robert Rodriguez is licensed to practice only in the State of California & this analysis is applied only under State of California law. Robert D. Rodriguez is also admitted to practice in the U.S. District Courts, Central, Northern & Eastern Districts of California. Robert Rodriguez has practiced in the State of California Court of Appeal.
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