Jurisdiction

Parents who move to a new state or are new residents of California may find that jurisdiction is an issue in their child custody case. Jurisdiction is the first step in litigating child custody and residency requirements apply.

Court Jurisdiction in Child Custody Determinations

A child custody determination is defined as a judgment, decree or other order of a court providing for the legal custody, physical custody, or visitation with respect to the child. It includes permanent, temporary, initial, and modification orders. But how do we know if California courts have jurisdiction to make an initial child custody determination?

The Uniform Child Custody Jurisdiction Enforcement Act (UCCJEA) provides exclusive grounds for California court’s jurisdiction to make an initial child custody determination. Broadly speaking, the court has jurisdiction if:

1. California is the child’s home state
2. The court of another state does not have jurisdiction or has declined to exercise jurisdiction.
3. Courts that have jurisdiction under grounds 1 and 2 above, but have declined to exercise jurisdiction in the belief that a court in California is the more appropriate forum.
4. No other court of any other state has jurisdiction under grounds 1, 2, or 3 above.

Child’s Home State

A child’s home state is defined as the state where the child lived with a parent or a person acting as a parent for at least 6 consecutive months immediately before the commencement of the custody proceeding. If the child is newly-born and less than 6 months old, the state where the child lived from birth with a parent or person acting as a parent is considered the home state. A period of temporary absence still counts as part of the time period.

There are two scenarios which fall under this ground. The existence of any of these scenarios can establish jurisdiction in California. The first is when California is the child’s home state on the date of the commencement of the proceeding. The second is if California is the child’s home state within 6 months before the proceedings have started, and the child is absent from California but a parent or person acting as a parent continues to live in California.

A person acting as a parent is defined as a person (who is not a parent) who:

• Has physical custody of the child.
• Has had physical custody for a period of 6 consecutive months within 1 year immediately before the commencement of custody proceedings.
• Has been awarded legal custody by court or claims a right to legal custody under California law.

No Other Home State

California may exercise jurisdiction if the child has no other home state. Alternatively, California may also exercise jurisdiction if a court of the child’s home state has declined to exercise jurisdiction on the grounds that California is the more appropriate forum. For the second ground to establish jurisdiction, the following conditions must be met:

• The child and parents, or the child and at least one parent or a person acting as a parent must have a significant connection with California other than mere physical presence.
• There is substantial evidence available in California regarding the child’s care, protection, training, and personal relationships.

Other Courts Deferring to California

Under the UCCJEA, jurisdiction is established in California if all other courts having jurisdiction have declined to exercise jurisdiction on the ground that a California court is the more appropriate forum to determine the child’s custody. California courts may also exercise jurisdiction if no court in any other state would exercise jurisdiction.

When can a California court decline jurisdiction?

There are three situations in which a California court may choose or be required to decline its jurisdiction in making an initial child custody determination:

• Simultaneous proceedings in another state – If at the commencement of the proceeding, a proceeding concerning custody of the child has been commenced in a court of another state, a California court may not exercise jurisdiction.
• Inconvenient Forum – If a California court determines that it is an inconvenient forum under the circumstances and another state is the more appropriate forum.
• Unjustifiable conduct of petitioner – A court must decline to exercise jurisdiction if a person seeking to invoke jurisdiction has engaged in unjustifiable conduct.