Divorce, Custody, Child & Spousal Support Lawyer

TABLE OF CONTENTS

I. IN GENERAL

II. PARENTAGE AND CUSTODY

III. TYPES OF ORDERS AND JURISDICTION

IV. ASSETS CHARACTERIZED AND AWARDWED

V. CHARACTERIZATION OF PROPERTY

VI. METHODS OF DETERMINING MIXED PROPERTY

VII. EFFECT OF PREMARITAL AGREEMENT

VIII. PROPERTY VALUATION

IX. ASSET AND DEBT DIVISION

X. FURTHER WAIVERS – CREDITS - REIMBURSEMENTS

GENERAL OVERVIEW

Time With Your Kids

Working out a parenting agreement that covers child custody and visitation can be difficult, especially when there’s animosity between you and the other parent. Whether you’re recently separated and looking to learn the basics of types of custody or you’ve had an open case for years that needs modifications due to life changes, you can find resources here.

Types of Child Custody

There are several types of child custody. First, joint custody is where both parents share parental rights and the living arrangements of their child. Courts generally prefer joint custody, but sole custody, where only one parent or guardian has the physical and legal custody over a child, is a possible arrangement as well. Physical custody refers to sharing a home with a child and handling his or her day-to-day care. Legal custody refers to the right to make important decisions on your child’s behalf, including those related to health care, religion, and education.

How to Obtain Custody of Your Child

In California, family courts determine child custody arrangements based on what is in the best interests of the child. So how is that decided? The courts look at a number of factors in making this determination, such as the parents’ desire and ability to care for the child, the emotional bond between the child and both parents, the adjustment needed if the child has to move to a new area, and, if old enough, the child’s wishes.

Frequently, parents or other adults who have raised a child will be required by the court to take part in mediation. In mediation, you can discuss what you want, any problems you’ve had exchanging the child from one home to the next, and anything else that’s relevant to the situation. Hopefully, you can come to a resolution everyone can live with. Otherwise, the judge may make a parenting plan that neither parent is happy with. However, it’s important to note that if there was domestic violence in your relationship with the other parent, you may be able to skip mediation.

Child Custody Problems

Sometimes issues arise where a parent keeps a child when it’s not his or her turn to care for the child. Occasionally, a parent claims a child on their taxes after it had already been established that the other parent would claim the child. When these problems arise, it’s never the solution to stop paying child support; that will only hurt you in the end. Instead, a child custody modification may be needed.

Hiring a Child Custody Visitation Lawyer

Going to court for anything can be emotionally draining, but for cases involving your child, it can be extremely difficult to keep calm and ensure everything you need to tell the judge is covered. With an experienced attorney advocating for your rights as a parent, you’re more likely to get the custody and visitation agreement you and your child want. For more information on the law behind Custody continuing reading.

II. Parentage and Custody

1. Statutory Authority to Determine Parentage

A preliminary issue that must be resolved before custody can be determined is that of parentage. Parentage determinations concern whom the law recognizes as a child's legal parent. The legal parent and child relationship gives rise to custody and visitation rights and support obligations. Fam. Code §§ 7601, 3000-3204.

The Uniform Parentage Act (UPA) establishes the grounds, authority, and procedural framework for parentage actions in California. Fam. Code § 7601, 7610-7611, 7630-7644, 7650. A California court may also determine parentage in child support actions brought by the Department of Child Support Services (DCSS) (Fam. Code § 17404(a)) in actions brought to make or enforce child support under the Uniform Interstate Family Support Act (UIFSA) (Fam. Code § 5700.402), and in actions under the Domestic Violence Prevention Act (DVPA) (Fam. Code §§ 6323 and 6346). Parentage of children born before a marriage may be determined in proceedings for dissolution, legal separation, or child support. Fam. Code § 2330.1.

2. Establishing Parentage: Summary

The parent and child relationship may be established in the following ways:

Giving birth to a child (outside the surrogate context). Fam. Code § 7610(a).
Being a natural mother's actual or putative spouse or registered domestic partner. Fam. Code §§ 7540, 7611(a)-(c).
Receiving a child into one's home and holding the child out as one's own natural child. Fam. Code § 7611(d).
Signing a parentage declaration. Fam. Code §§ 7570-7577.
Signing a stipulation of parentage in a domestic violence case (Fam. Code § 6323(b)(2)) or other action under the UPA (Fam. Code §§ 7600 et seq).
Being the spouse of a woman who conceives through assisted reproductive techniques with the consent of the spouse or being the intended parents of a child conceived through assisted reproductive techniques. Fam. Code § 7613; see also Marriage of Buzzanca (1998) 61 Cal.4th 1410, 1413, 72 Cal.Rptr.2d 280.
Adoption. Fam. Code §§ 7610(b), 8616.

3. Establishing Parentage: Presumptions

Some of the methods to establish paternity or for making determinations of nonparentage are based upon presumptions provided in the UPA.

a. Marital Conclusive Presumption

A child born to a wife cohabiting with her husband who is not impotent or sterile is conclusively presumed to be a child of the marriage. Fam. Code § 7540. Family Code § 7540 requires that three elements, (1) marriage, (2) cohabitation, and (3) potency and fertility of the husband, exist at the time of conception of the child in order for the conclusive presumption to apply. (City and County of San Francisco v Strahlendorf (1992) 7 Cal.4th 1911, 9 Cal.Rptr.2d 817.)

Family Code § 7540 has been held not to apply as a matter of due process where application of the presumption in particular circumstances would not further the social policy of promoting family unity that underlies the statute. (See Comino v Kelley (1994) 25 Cal.4th 678, 30 Cal.Rptr.2d 728; County of Orange v Leslie B. (1993) 14 Cal.4th 976, 17 Cal.Rptr.2d 797.)

b. Other Marital Presumptions

There are three circumstances in which a person is presumed to be the parent of a child as a result of marriage to the natural mother (Fam. Code § 7611(a)-(c)):

If the child is born during the marriage or within 300 days after termination of the marriage by death, annulment, divorce, declaration of invalidity, or separation.
If the presumed parent and the child's natural mother attempted to legally marry each other before the child's birth, and either
The child was born during the attempted marriage or within 300 days after its termination by death, annulment, declaration of invalidity, or divorce; or
If the attempted marriage is invalid without a court order and the child is born within 300 days after the termination of cohabitation.

If after the child is born, the presumed parent and the child's natural mother have married, or attempted to marry, and either of the following is true:

With the person's consent, the presumed parent is named as the child's parent on the child's birth certificate, or
The presumed parent is obligated to support the child under a written voluntary promise or by court order.

c. Presumption Based on Holding Child Out as Own

Family Code § 7611(d) provides a presumption of parentage if the presumed parent receives the child into his or her home and openly holds out the child as his or her natural child. There is no durational minimum for a person to receive the child into their home; instead, "receipt of the child into the home must be sufficiently unambiguous as to constitute a clear declaration regarding the nature of the relationship...." As well, no "particular number or sorts of public acknowledgements are necessary to satisfy [Fam C] section 7611(d)," as to the requirement of holding out the child as one's own. See Charisma R. v Kristina S. (2009) 175 Cal.4th 361, 374-375, 96 Cal.Rptr.3d 26, overruled on other grounds in 50 C4th 512, 532 n7. The question is factual has there been a showing of a public acknowledgment of a parental relationship.

d. Presumptions Are To Be Applied on a Gender-Neutral Basis

Family Code § 7650 provides that the UPA provisions applicable to determining a father and child relationship shall be applied insofar as practicable to "an action to determine the existence or nonexistence of a mother and child relationship." In Elisa B. v Superior Court (2005) 37 C4th 108, 33 Cal.Rptr.3d 46, the California Supreme Court applied Fam. Code § 7611(d) in a gender-neutral manner to hold that a natural mother's former lesbian partner could establish a legal parent-child relationship. In S.Y. v S.B. (2011) 201 Cal.4th 1023, 134 Cal.Rptr.3d 1, Fam. Code § 7611(d) wasapplied without regard to gender in support of a finding that a same-sex partner was the presumed parent of her partner's adopted children.

e. Rebutting the Presumptions

Family Code § 7612 provides that the presumptions in Fam. Code § 7611 are rebuttable presumptions affecting the burden of proof and may be rebutted in an appropriate action by clear and convincing evidence.

An "appropriate action" is one in which there is another candidate for paternity "vying for parental rights and seek[ing] to rebut a [Fam C] § 7611(d) presumption in order to perfect his claim, or in which a court decides that the legal rights and obligations of parenthood should devolve upon an unwilling candidate." In re Nicholas H. (2002) 28 C4th 56, 70, 120 Cal.Rptr.2d 146.

f. Family Code § 7611 Presumptions

In In re Nicholas H. (2002) 28 C4th 56, 120 Cal.Rptr.2d 146, the California Supreme Court held that a presumption arising under Fam. Code § 7611 is not necessarily rebutted by clear and convincing evidence that the presumed father is not the biological father. In Elisa B. v Superior Court(2005) 37 C4th 108, 33 Cal.Rptr.3d 46, the Court held that lack of a biological relationship did not preclude the former same-sex partner of a child's birth mother from being a presumed parent under Fam. Code § 7611(d).

4. Parentage by Voluntary Declaration

Parentage may also be determined by a written voluntary declaration of paternity filed with DCSS and has the same force and effect as a judgment for paternity issued by a court of competent jurisdiction. Fam. Code §§ 7570 et seq. The voluntary declaration is recognized as a basis for an order for child custody, visitation, or child support. Fam. Code § 7573. As a judgment, the voluntary declaration rebuts a presumption of paternity under Fam. Code § 7611 pertaining to another alleged parent, unless a court makes a determination that more than two persons are parents. Fam. Code § 7612(d); Kevin Q. v Lauren W. (2009) 175 Cal.4th 1119, 95 Cal.Rptr.3d 477 (voluntary declaration trumps rebuttable presumption of paternity); cf. In re Cheyenne B. (2012) 203 Cal.4th 1361, 1374 n17, 138 Cal.Rptr.3d 267 (in 2011 Fam. Code § 7612 was amended in response to Kevin Q.)

Note: A person's offer or refusal to sign a voluntary declaration of paternity may be considered as a factor, but is not determinative, as to the issue of legal parentage in any proceedings that establish or terminate parental rights. Fam. Code § 7612(g).

5. arentage by Stipulation

In an action under the DVPA, the court may accept a stipulation of paternity by the parties and, if paternity is uncontested, enter a judgment establishing paternity subject to the set aside provisions in Fam. Code § 7646. Fam. Code § 6323(b)(2).

The parties may also stipulate to parentage in any action brought under the UPA or in an action brought by DCSS under Fam. Code § 17410. Such stipulations are res judicata and may not be relitigated even if nonbiology is later established. Robert J. v Leslie M. (1997) 51 Cal.4th 1642, 59 Cal.Rptr.2d 905.

6. Parentage by Estoppel

A line of cases holds that the conduct of a husband with no biological ties to a child may nonetheless estop the husband from avoiding parental responsibilities even after the husband's marriage to the child's mother is dissolved. Marriage of Freeman (1996) 45 Cal.4th 1437, 1447, 53 Cal.Rptr.2d 439. The elements of parentage by estoppel exist where, although biological parentage is unknown or lacking, the facts show that (Clevenger v Clevenger (1961) 189 Cal.2d 658, 11 Cal.Rptr 707; Marriage of Valle(1975) 53 Cal.3d 837, 126 Cal.Rptr 38; Marriage of Johnson (1979) 88 Cal.3d 848, 152 Cal.Rptr 121):

The person represented to the child he or she is the natural father or mother, and intended the child to rely on the representation;
The child relied on the representation; and
The child was ignorant of the true facts.

See also Marriage of Pedregon (2003) 107 Cal.4th 1284, 1290, 132 Cal.Rptr.2d 861 ("The courts have recognized the importance of a putative father continuing his paternal relationship with a child, including providing emotional and financial support, when the father has represented to the child and the child has been led to believe over a lengthy period of time that the father is his natural father.")

Unlike the presumption under Fam. Code § 7611(d), parentage by estoppel requires a long-term relationship between the parent and the child which frustrates the child's opportunity to discover the natural father. Clevenger v Clevenger, supra.

Parentage by estoppel does not apply if the father believed he was the natural father of the child. (County of San Diego v Arzaga (2007) 152 Cal.4th 1336, 1347-1348, 62 Cal.Rptr.3d 329.)

7. Assisted Reproduction

If a woman, with consent of an intended parent, conceives through physician-supervised assisted reproduction with semen or ova or both donated by a donor who is not her spouse, the intended parent is treated by law as if he or she were the natural parent of a child thereby conceived; the donor is not considered the parent. Fam. Code § 7613. Family Code § 7613 specifies mandatory procedures for written consent. If the requirements of Fam. Code § 7613 are met, blood tests may not be used to challenge paternity of the resulting child. Fam. Code § 7541(e).

Optional forms to use to show intent to be a parent of a child conceived by ova or sperm donation are provided in Fam. Code § 7613.5 and satisfy the written consent requirement of Fam. Code § 7613.

Note: A sperm donor, although precluded from establishing presumed parentage under Fam. Code § 7613, was not precluded from establishing presumed parentage based on post-birth conduct under Fam. Code § 7611. Jason P. v Danielle S.(2014) 226 Cal.4th 167, 171 Cal.Rptr.3d 789.

If an intended parent or parents use a gestational carrier or surrogate, the requirements for the written agreement to be used in this situation are set forth in Fam. Code § 7962. When a properly executed agreement is lodged with the court in an action to establish a parent-child relationship, it rebuts any presumptions created by Fam. Code §§ 7540-7541, 7610(b), 7611 and 7613 that the gestational carrier surrogate, her spouse, or partner are a parent of the child or children. Fam. Code § 7962(f)(1).

8. Resolving Multiple Presumptions of Parentage

Family Code § 7612 provides that if two or more presumptions arise under Fam. Code § 7610 or § 7611 which conflict, the presumption which on the facts is founded on weightier considerations of policy and logic will control.

In a provision added in 2013, the Legislature overturned the long-standing assumption that a child may have only two parents. Family Code § 7612(c) now provides that in appropriate actions, more than two personswith a claim to parentage may be found to be a parent, if the court finds that recognizing only two parents would be detrimental to the child. In determining detriment to the child, the court must consider all relevant factors, including, but not limited to, the harm of removing the child from a stable placement with a parent who has fulfilled the child's physical needs and the child's psychological needs for care and affection, and who has assumed that role for a substantial period of time.

An appropriate action under Fam. Code § 7612(c) is one that protects an existing relationship with a nonparent, not a parental relationship that has not yet developed. In re Donovan L., Jr. (2016) 244 Cal.4th 1075, 1088-1091, 198 Cal.Rptr.3d 550. Stable placement does not just mean a living arrangement but also means a parent-child relationship has been established. Martinez v Vaziri (2016) 246 Cal.4th 373, 384-385, 200 Cal.Rptr.3d 884.

9. Standing to Bring a Parentage Action

Standing varies according to the basis of parentage or nonparentage underlying the action as follows:

·An action to establish the existence or nonexistence of the parent and child relationship under Fam. Code § 7611(a), (b), or (c) may be brought by (Fam. Code § 7630(a)):

The child, The child's natural mother, The presumed parent, An adoption agency to whom the child has been released, or A prospective adoptive parent.

An action to establish the existence or nonexistence of the parent and child relationship under Fam. Code § 7611(d) may be brought by any interested party. Fam. Code § 7630(b).

An action to establish the existence or nonexistence of the parent and child relationship, except in cases of a wife cohabitating with her husband (Fam. Code §§ 7540 et seq), may be brought by (Fam. Code § 7630(c)):

The child;
The child's representative;
DCSS;
A presumed parent, or a deceased or minor presumed parent's parent or personal representative; or
In cases where the natural mother is the only presumed parent or a Welf. & Inst. Code § 300 action or adoption is pending, the alleged father or, if deceased or a minor, his parent or personal representative.

An action to determine the existence or nonexistence of the mother-child relationship may be brought by any interested party. Fam. Code § 7650(a).

A party to an assisted-reproduction agreement may bring an action to establish a parent and child relationship consistent with the intent of the agreement. Fam. Code § 7630(f).

A local child support agency may bring a parentage action in any case in which the agency believes it to be appropriate. Fam. Code § 7634.

III. Types of Orders and Jurisdiction

1. Overview and Definitions

a. Legal and Physical Custody

In California, custody is of two types: legal and physical. (See Fam. Code §§ 3002-3007.) "Legal" custody refers to the right and responsibility to make decisions related to the health, education, and welfare of the child. (Fam. Code §§ 3003, 3006.) "Physical" custody refers to the time periods during which a child resides with and is under the supervision of a parent or other party. (Fam. Code §§ 3004, 3007.)

Legal and/or physical custody may be granted solely to one parent. This is called "sole custody." It may also be awarded jointly to both parents. This is called "joint custody." (See Fam. Code §§ 3002-3007.)

The type of custody (legal or physical) and the means of holding it (jointly or solely) can have an impact on future decisions the court is called on to make, such as whether a parent is allowed to relocate or change the residence of the minor child, and where the child attends school.

See Judicial Council Forms FL-341(D), Physical Custody Attachment, FL-341, Child Custody and Visitation (Parenting Time) Order Attachment, and FL-341(C), Children's Holiday Schedule Attachment.

b. Sole Custody

Sole legal custody means that one parent has the right and responsibility to make the decisions relating to the health, education, and welfare of the child. (Fam. Code § 3006.)

Sole physical custody means that the child resides with and is under the primary supervision of one parent, subject to court-ordered visitation by the other parent. (Fam. Code § 3007.)

If a noncustodial parent has unsupervised access to a child, some judges also state in their orders that the noncustodial parent has the ability to provide medical consent for the child in the event of an emergency.

c. Joint Custody

"Joint custody" means both joint physical custody and joint legal custody. (Fam. Code § 3002.)

"Joint legal custody" means both parents share the right and responsibility to make decisions related to the health, education, and welfare of the minor child. (Fam. Code § 3003.)

"Joint physical custody" means that each parent has significant periods of physical custody, and it must be shared in a way that assures the child of frequent and continuing contact with both parents subject to the factors and public policy determining the child's best interest described in Fam. Code §§ 3011 and 3020. (Fam. Code § 3004.) See Judicial Council Form FL-341(E), Joint Legal Custody Attachment.

2. Presumption and Special Rules Applicable to Joint Custody Orders

Presumption. There is a presumption that joint custody is in the minor child's best interest when the parents have agreed to joint custody or when they agree in open court at a custody hearing. (Fam. Code § 3080.) The court, however, in applying this presumption, must still give consideration to the factors that determine the child's best interest as described in Fam. Code § 3011.

If the parents do not agree to a joint custody order, the court may make such an order on the request of either parent. (Fam. Code § 3081.) Again, the court must consider and apply the factors that determine the child's best interest as described in Fam. Code § 3011.

There is not, however, a preference or presumption for or against joint legal custody, joint physical custody, or sole custody, and the court and the family are allowed the widest discretion to choose a parenting plan that is in the child's best interest. (Fam. Code § 3040(c).)

Special rules. When the court grants or denies a parent's request for joint custody in the absence of an agreement between both parents, it must, if requested by one of the parties, state the reasons for granting or denying the request. A broad statement that the joint custody order is or is not in the child's best interest is insufficient as a statement of the reasons for the court's action. (Fam. Code § 3082.)

Joint legal custody may be awarded without awarding joint physical custody. (Fam. Code § 3085.) When it makes a joint legal custody order, the court must specify the circumstances under which the consent of both parents is required to exercise legal control of the minor and the consequences of the failure to obtain mutual consent before acting. In all other circumstances, either parent acting alone may exercise legal control. A joint legal custody order also is not to be construed to permit an action that is inconsistent with the physical custody order unless the court expressly authorizes the action. (Fam. Code § 3083.)

An award of joint physical custody does not necessarily mean that the parties have an equal or approximately equal share of time. However, it does mean that both parties have significant periods of physical custody. (Fam. Code § 3004.) The court must specify the times of physical control for each party and the rights of each party during such times "in sufficient detail to enable a parent deprived of such control to implement laws for relief of child snatching and kidnapping." Fam. Code § 3084.

The court may specify one parent as primary caretaker and one home as primary home for the purposes of determining eligibility for public assistance even when making an order for joint legal and joint physical custody. (Fam. Code § 3086.)

Although Fam. Code §§ 3080 and 3081 appear to preclude the court from ordering joint custody on its own motion in the absence of an agreement by the parties or request of one party, the court may modify or terminate a joint custody order on its own motion. (Fam. Code § 3087.)

In counties that have a conciliation court, the court or the parties may, at any time, consult with the conciliation court for assistance in formulating a plan to implement a joint custody order or resolving disputes arising during the implementation of a joint custody order. (Fam. Code § 3089.) In addition, the court may require the parties to submit a plan for implementing the custody order. (Fam. Code § 3040(a)(1).)

The court may also refer parties to Family Court Services programs.

I. Jurisdiction

1. Family Court Proceedings

Family Code § 3022 provides that the superior court may, during the pendency of a proceeding, or at any time thereafter, make such orders for the custody of a child during minority as may be necessary or proper. Family Code custody and visitation proceedings are governed by Fam. Code §§ 3000 et seq, and these statutes apply to the following (Fam. Code § 3021):

Proceedings for dissolution of marriage, nullity of marriage, and legal separation of the parties.
An action for exclusive custody under Fam. Code § 3120.
A proceeding to determine physical or legal custody or visitation in a proceeding under the Domestic Violence Prevention Act (DVPA) (Fam. Code §§ 6200 et seq).
A proceeding to determine physical or legal custody or visitation in an action under the Uniform Parentage Act (UPA) (Fam. Code §§ 7600 et seq).
A proceeding to determine physical or legal custody or visitation in an action brought by the local child support agency under Fam. Code § 17404.

2. Preemption of Family Court Custody Jurisdiction

a. Juvenile Court Jurisdiction

When a minor has been adjudged a dependent of the juvenile court under Welf & I C §§ 300 et seq, that court acquires sole and exclusive jurisdiction over matters relating to the custody of and visitation with the child. Welf & I C §§ 302(c), 304; Cal Rules of Ct 5.620. Any custody or visitation order issued by the juvenile court is a final judgment and remains in effect after the court's jurisdiction is terminated. It may not be modified in a family court proceeding or action unless the court finds that there has been a significant change of circumstances since the issuance of the order, and modifying the order is in the child's best interest. Welf & I C § 302(d). See JV-200, Custody Order-Juvenile Final Judgment.

The juvenile court has preemptive jurisdiction to adjudicate dependency notwithstanding a family court's preexisting custody order in a marital action, regardless of the degree to which the same issues will be heard in a dependency action. (In re Desiree B. (1992) 8 CA4th 286, 291-293, 10Cal.Rptr.2d 254 (juvenile court not collaterally estopped from reconsidering custody issues already decided in family court); In re Travis C. (1991) 233 CA3d 492, 499-503, 284Cal.Rptr. 469 (juvenile court had jurisdiction over petition containing same factual allegations despite fact that hearing on those allegations was pending in family law court; juvenile court's power to protect children even if family law court has prior jurisdiction is single exception to the rule that the first court to take jurisdiction among courts of concurrent jurisdiction has exclusive jurisdiction).)

b. Tribal Jurisdiction Under Indian Child Welfare Act

Indian tribes recognized by the Department of the Interior have exclusive jurisdiction over certain child custody proceedings involving Indian children residing or domiciled within their reservation under the Indian Child Welfare Act (ICWA) (25 USC §§ 1901 et seq), except where federal law has otherwise vested the state court with jurisdiction over such proceedings. 25 USC § 1911(a). In California, the terms of Public Law 280 (Act of August 15, 1953, ch 505, 67 Stat 588-590 (now codified as 18 USC § 1162, 28 USC § 1360, and other sections in Titles 18, 25 and 28)) provide California courts with concurrent jurisdiction over child welfare matters involving Indian children residing on most reservations in the state. (See Doe v Mann (9th Cir 2005) 415 F3d 1038, 1061.) The Washoe Tribe of California and Nevada is currently the only tribe in California with exclusive jurisdiction over child welfare matters involving Indian children who reside on the tribe's reservations. However, Indian children from exclusive jurisdiction tribes may be temporarily located in California. Further, a tribe retains exclusive jurisdiction of a child who is already a ward of a tribal court, even if that child is no longer a resident of the reservation. 25 USC § 1911(a); Welf & I C § 305.5(a).

In custody proceedings involving Indian children who are not domiciled or residing within the reservation, or are not already subject to tribal court jurisdiction, the tribes have concurrent but presumptive jurisdiction. In these cases, the tribes have the right to notice and to intervene in state court proceedings and may seek a transfer of the proceedings to tribal court. 25 USC §§ 1911(b)-(c), 1912(a). Such transfer must be granted unless one of the parents objects or there is good cause not to transfer. 25 USC § 1911(b); Welf & I C § 305.5; Cal Rules of Ct 5.483.

The ICWA does not apply to child custody disputes arising out of dissolution or legal separation proceedings, as long as custody is awarded to one of the parents. 25 USC § 1903. Therefore, the impact of the ICWA is limited in custody proceedings. However, because tribes are treated as "states" for the purposes of the UCCJEA, and the public acts, records, and judicial proceedings of Indian tribes are entitled to full faith and credit in the state court (25 USC § 1911(d)) in a case involving an Indian child, it is important to determine whether there are any existing orders or proceedings in a tribal court. A custody proceeding involving an Indian child generally is the same as any child custody proceeding, except that under the ICWA, there are a number of additional substantive and procedural requirements. In addition the court must recognize that an Indian child has an interest in maintaining the connection with the tribe. Welf & I C § 224(a)(2).

Further, in these cases the court must not only consider the child's interests, but it must also consider the Indian tribe's interests and legal rights. (In re Crystal K. (1990) 226 Cal.3d 655, 661, 276Cal.Rptr. 619.) Under the ICWA, a child's tribe has rights to protects its interests that are independent of the rights of the child and the child's parents. (In re Kahlen W. (1991) 233 Cal.3d 1414, 1425, 285Cal.Rptr. 507.)

The U.S. Department of the Interior's Bureau of Indian Affairs has issued regulations (25 CFR pt 23) and guidelines (Guidelines for Implementing the Indian Child Welfare Act, December 2016, for courts to consider in applying the ICWA. Consistent with the statute itself (25 USC § 1921) and California statutes (Welf & I C § 224(d)), the regulations and guidelines provide that the ICWA, the regulations and guidelines themselves, and any state statutes and regulations designed to implement the ICWA should be liberally construed in favor of a result that is consistent with the congressional preference of deferring to tribal judgment on matters concerning Indian children. Although the guidelines are not binding, "the construction of a statute by the executive department charged with its administration is entitled to great weight." (In re Desiree F.(2000) 83 Cal.4th 460, 474, 99Cal.Rptr.2d 688, citing In re Krystle D.(1994) 30 Cal.4th 1778, 1801 n7, 37Cal.Rptr.2d 132.)

Because the ICWA establishes minimum federal standards (25 USC § 1902), the regulations and guidelines provide that state laws may offer broader protections, if the state laws do not infringe on rights afforded by the ICWA. Under the ICWA, a court may apply a state or other federal law to a child custody proceeding involving an Indian child if that law provides a higher standard of protection to the rights of the child's parents or the Indian custodian of the child, than that provided by the ICWA. 25 USC § 1921.

California law also recognizes that (Welf & I C § 224(a)(1), (2); Fam. Code § 175(a); Prob C § 1459(a)):

No resource is more vital to the continued existence and integrity of an Indian tribe than its children;
California has an interest in protecting Indian children who are members of or eligible for membership in an Indian tribe;
California is committed to promoting practices to prevent involuntary out-of-home placement for Indian children;
When involuntary out-of-home placement is necessary, California is committed to putting Indian children in a placement that reflects the child's unique tribal culture and promotes tribal ties; and
It is in the interest of an Indian child that the child's tribal membership and connection to the tribal community be encouraged and protected, even if the Indian child was not originally in the custody of an Indian parent or Indian custodian.

In all Indian child custody proceedings, as defined in the ICWA, the court must (Welf & I C § 224(b); Fam. Code § 175(b); Prob C § 1459(b)):

Consider these legislative findings,
Strive to promote the stability and security of Indian tribes and families,
Comply with the ICWA, and
Seek to protect the child's best interests.

Many provisions of the ICWA were codified into the Welfare and Institutions Code, the Family Code, and the Probate Code in an effort to increase compliance with the ICWA and to improve outcomes for Indian foster children. (SB 678 (2006).) The California Legislature has expressed its commitment to promoting practices in accordance with the ICWA. (Fam. Code § 175.) In all Indian child custody proceedings, the courts must strive to comply with the ICWA and any higher state or federal standards of protection accorded to the rights of the child, parent, Indian custodian, or tribe. (Fam. Code § 175(b), (d).)

The Judicial Council has adopted Rules of Court to govern ICWA proceedings in juvenile, family, and probate proceedings (see Cal. Rules of Ct., rules (“CRC”) 5.480-5.487 and CRC 7.1015.)

The ICWA regulates custody awards to nonparents to a higher degree. For a comprehensive discussion of the ICWA.

3. Interstate Disputes

The Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) (Fam. Code §§ 3400 et seq) determines the proper subject matter jurisdiction as being between interested states for virtually any custody or visitation dispute. (Fam. Code § 3402(c) (d).) Remember that a federally recognized Indian tribe is considered to be a "state" for UCCJEA purposes. UCCJEA requirements must be met whenever a California court is called on to make an initial or modified custody or visitation determination. Unless California is an appropriate court under UCCJEA guidelines, there is no jurisdiction to make any custody orders other than emergency orders. (Fam. Code §§ 3421-3424.)

The federal Parental Kidnapping Prevention Act (PKPA) (28 USC § 1738A) should also be consulted for jurisdictional requirements in appropriate cases. The PKPA was enacted to provide nationwide enforcement of custody orders made in accordance with the UCCJEA. (Marriage of Zierenberg(1992) 11 Cal.4th 1436, 1441-1442, 16Cal.Rptr.2d 238.) The PKPA contains provisions that are similar to those of the UCCJEA, but they are not identical in every aspect. The provisions of the PKPA are controlling in cases where its provisions conflict with those of the UCCJEA. Marriage of Zierenberg, supra.

A custody proceeding pertaining to an Indian child is not subject to the UCCJEA to the extent it is governed by the Indian Child Welfare Act.

4. Initial Custody Determinations

a. Grounds for Jurisdiction

The UCCJEA provides exclusive grounds for a California court's jurisdiction to make an initial child custody determination. (Fam. Code § 3421(a), (b).) 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. Child custody determinations include permanent, temporary, initial, and modification orders. (Fam. Code § 3402(c).)

Physical presence of, or personal jurisdiction over, a party or a child is not necessary or sufficient to make a child custody determination. (Fam. Code § 3421(c).)

Except as otherwise provided in the UCCJEA provisions for emergency jurisdiction under Fam. Code § 3424, there are four individual grounds for jurisdiction for making initial child custody determinations. The corresponding grounds on which a California court may assume jurisdiction under the PKPA are found in 28 USC § 1738A(c)(2)(A)-(D).

b. California Is Child's Home State

Jurisdiction is established in California under the UCCJEA if California was the child's home state on the date of the commencement of the proceeding; or was the child's home state within 6 months before the commencement of the proceeding and the child is absent from California, but a parent or person acting as a parent continues to live in California. (Fam. Code § 3421(a)(1); see Schneer v Llaurado (2015) 242 Cal.4th 1276, 195Cal.Rptr.3d 858 (discusses how Fam. Code §§ 3402 and 3421 work together to provide two bases for home state jurisdiction).)

Home state. A child's home state is the state in which 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 less than 6 months of age, the home state is the state in which the child lived from birth with a parent or person acting as a parent. A period of temporary absence of any of the mentioned persons counts as part of the time period. (Fam. Code § 3402(g); see Ocegueda v Perreira (2015) 232 Cal.4th 1079, 181Cal.Rptr.3d 845 (physical presence of child determines where child lived; Hawaii was home state of 6-month-old child born in Hawaii and intent of parent to move was irrelevant).)

Person acting as a parent. A person acting as a parent means a person, other than a parent, who (Fam. Code § 3402(m)):

has physical custody of the child or has had physical custody for a period of 6 consecutive months, including any temporary absence, within 1 year immediately before the commencement of the custody proceeding; and
has been awarded legal custody by a court or claims a right to legal custody under California law.

c. No Other Home State; California More Appropriate Forum

Under the UCCJEA, California may exercise jurisdiction if no other state is the child's home state as specified in Fam. Code § 3421(a)(1), or a court of the child's home state has declined to exercise jurisdiction on the grounds that California is the more appropriate forum under Fam. Code § 3427 or § 3428, and both of the following are true (Fam. Code § 3421(a)(2)):

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

d. Other Courts Having Jurisdiction Deferred to California

Jurisdiction is established in California under the UCCJEA if all courts having jurisdiction under Fam. Code § 3421(a)(1) or (a)(2) have declined to exercise jurisdiction on the ground that a California court is the more appropriate forum to determine the child's custody under Fam. Code § 3427 or § 3428. (Fam. Code § 3421(a)(3).)

e. Jurisdiction in No Other Court

Under the UCCJEA, California may exercise jurisdiction if no court of any other state would have jurisdiction under the criteria specified in Fam. Code § 3421(a)(1), (a)(2), or (a)(3). (Fam. Code § 3421(a)(4).)

5. Declining Exercise of Jurisdiction

There are three situations in which a California court that has jurisdiction under Fam. Code § 3421 may choose or be required to decline to exercise its jurisdiction to make an initial child custody determination.

a. Simultaneous Proceedings in Another State

Except as otherwise provided in Fam. Code § 3424 (emergency jurisdiction), a California court may not exercise its jurisdiction under Fam. Code §§ 3421-3430 if, at the time of the commencement of the proceeding, a proceeding concerning the custody of the child has been commenced in a court of another state having jurisdiction substantially in conformity with the UCCJEA, unless the proceeding has been terminated or is stayed by the court of the other state because a California court is a more convenient forum under Fam. Code § 3427. (Fam. Code § 3426(a).)

Except as otherwise provided in Fam. Code § 3424, a California court, before hearing a child custody proceeding, must examine the court documents and other information supplied by the parties under Fam. Code § 3429. (Fam. Code § 3426(b).) If the court determines that a child custody proceeding has been commenced in a court in another state having jurisdiction substantially in accordance the UCCJEA, it must stay its proceeding and communicate with the court of the other state. If the court of the state having jurisdiction does not determine that the California court is a more appropriate forum, the California court must dismiss the proceeding. (Fam. Code § 3426(b).)

b. Inconvenient Forum

A California court that has jurisdiction under the UCCJEA to make a child custody determination may decline to exercise its jurisdiction at any time if it determines that it is an inconvenient forum under the circumstances and that a court of another state is a more appropriate forum. The issue of inconvenient forum may be raised on motion of a party, the court's own motion, or request of another court. (Fam. Code § 3427(a).)

Before determining whether it is an inconvenient forum, the court must consider whether it is appropriate for a court of another state to exercise jurisdiction. For this purpose, the court must allow the parties to submit information and must consider all relevant factors, including (Fam. Code § 3427(b)):

Whether domestic violence has occurred and is likely to continue in the future and which state could best protect the parties and the child.
The length of time the child has resided outside California.
The distance between the California court and the court in the state that would assume jurisdiction.
The degree of financial hardship to the parties in litigating in one forum over the other.
Any agreement of the parties as to which state should assume jurisdiction.
The nature and location of the evidence required to resolve the pending litigation, including testimony of the child.
The ability of the court of each state to decide the issue expeditiously and the procedures necessary to present the evidence.
The familiarity of the court of each state with the facts and issues in the pending litigation.
If the California court determines that it is an inconvenient forum and that a court of another state is a more appropriate forum, it
Must stay the proceedings on condition that a child custody proceeding be promptly commenced in another designated state and may impose any other condition the court considers just and proper (Fam. Code § 3427(c)); and
May require the party who commenced the proceeding to pay, in addition to the costs of the proceeding in this state, necessary travel and other expenses, including attorney's fees, incurred by the other parties or their witnesses (Fam. Code § 3427(e)).

A court may decline to exercise its jurisdiction of a child custody determination if it is incidental to an action for dissolution of marriage or other proceeding and still retain jurisdiction over the dissolution or other proceeding. (Fam. Code § 3427(d).)

c. Unjustifiable Conduct of Petitioner

Except as otherwise provided in Fam. Code § 3424 (emergency jurisdiction), or by any other law of this state, if a California court has jurisdiction under the UCCJEA because a person seeking to invoke its jurisdiction has engaged in unjustifiable conduct, the court must decline to exercise its jurisdiction unless one of the following is true (Fam. Code § 3428(a)):

The parents and all persons acting as parents have acquiesced in the exercise of jurisdiction.
A court of another state otherwise having jurisdiction under Fam. Code §§ 3421-3423, determines that California is a more appropriate forum under Fam. Code § 3427.
No court of any other state would have jurisdiction under the criteria specified in Fam. Code §§ 3421-3423.

Fam. Code § 3428 is directed at a petitioning parent's wrongful taking of a child from another state in an attempt to create jurisdiction in a chosen forum.

California courts, interpreting the former Uniform Child Custody Jurisdiction Act "wrongful conduct" provision (former Fam. Code § 3408), have generally limited application of the provision to situations in which a child has been removed from a state in violation of an existing custody order or injunction. (See Haywood v Superior Court (2000) 77 Cal.4th 949, 956-957, 92Cal.Rptr.2d 182.)

If a California court declines to exercise its jurisdiction under Fam. Code § 3428(a), it may fashion an appropriate remedy to ensure the safety of the child and prevent a recurrence of the unjustifiable conduct, including staying the proceeding until a child custody proceeding is commenced in a court having jurisdiction under Fam. Code §§ 3421-3423. (Fam. Code § 3428(b).)

If a court dismisses a petition or stays a proceeding because it declines to exercise its jurisdiction under Fam. Code § 3428(a), it must assess necessary and reasonable expenses against the party seeking to invoke its jurisdiction. These include costs for communication expenses, attorney's fees, investigative fees, expenses for witnesses, travel expenses, and child care during the course of the proceedings, unless the party from whom fees are sought establishes that the assessment would be clearly inappropriate. (Fam. Code § 3428(c).)

In making a determination under Fam. Code § 3428, a court may not consider as a factor weighing against the petitioner any taking or retention of the child after a visit, or other temporary relinquishment of physical custody, from the person who has legal custody, if there is evidence that the taking or retention of the child was a result of domestic violence against the petitioner, as defined in Fam. Code § 6211. (Fam. Code § 3428(d).)

6. Emergency Jurisdiction

Even when UCCJEA jurisdiction rests with another state, a California court may exercise temporary custody jurisdiction if the child is present in this state and either (1) the child has been "abandoned," that is, left without provision for reasonable and necessary care or supervision; or (2) the exercise of such jurisdiction is "necessary in an emergency" to protect the child because the child, the child's sibling, or the child's parent is subjected to, or threatened with, "mistreatment or abuse." (Fam. Code §§ 3424(a), 3402(a). See Marriage of Fernandez-Abin & Sanchez (2011) 191Cal.4th 1015, 120Cal.Rptr.3d 227 (in a case involving prior custody order from Mexico, the fact that a California judge declined to exercise emergency jurisdiction over the children would not preclude a second California judge from revisiting the issue under Fam. Code § 3424(a) after finding that the children witnessed husband's domestic violence against wife).)

Unless there is a previous child custody determination that is entitled to enforcement under the UCCJEA, or a child custody proceeding has been commenced in a state with proper UCCJEA jurisdiction, an emergency child custody order remains in effect until an order is obtained from the court having jurisdiction. Such an order will become a final determination if the order so provides and if California becomes the home state of the child. (Fam. Code § 3424(b).)

If there is a previous child custody determination entitled to UCCJEA enforcement or an action properly commenced, any emergency order must specify a period of time that the court considers adequate to allow the person seeking an order to obtain it from the proper state. (Fam. Code § 3424(c).) If a California court learns of a valid prior order or commencement of an action in another state, it must immediately communicate with the out-of-state court to resolve the emergency, protect the safety of the parties and the child, and determine a period for the duration of the temporary order. (Fam. Code § 3424(d).)

7. Modification Jurisdiction

a. Modification of Prior California Order

Except as otherwise provided in Fam. Code § 3424 (emergency jurisdiction), a California court that has made a child custody determination consistent with Fam. Code § 3421 or § 3423 has exclusive, continuing jurisdiction over the determination unless either of the following occurs (Fam. Code § 3422(a)):

A California court determines that the child, the child and one parent, or the child and a person acting as a parent no longer have a "significant connection" with California, and that substantial evidence is no longer available in California concerning the child's care, protection, training, and personal relationships. A "significant connection" exists as long as the parent exercising visitation rights still lives in California and the relationship with the child has not deteriorated to the point at which the exercise of jurisdiction would be unreasonable. (Grahm v Superior Court(2005) 132Cal.4th 1193, 1200, 34Cal.Rptr.3d 270.)
A California court 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 California.

A California court that has made a child custody determination and does not have exclusive, continuing jurisdiction under Fam. Code § 3422 may modify that determination only if it has jurisdiction to make an initial determination under Fam. Code § 3421. (Fam. Code § 3422(b).)

b. Modification of Order of Another State

Except as otherwise provided in Fam. Code § 3424, if another state has made a child custody determination, a California court may not modify it unless California would have jurisdiction to make an initial custody determination under Fam. Code § 3421(a)(1) or (a)(2) and either of the following occur (Fam. Code § 3423):

The court of the other state determines it no longer has exclusive, continuing jurisdiction under Fam. Code § 3422 or that a California court would be a more convenient forum under Fam. Code § 3427; or
A California court 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.

c. Duty to Communicate in Simultaneous Proceedings

Before hearing a child custody proceeding, the court must examine court documents and other information supplied by the parties. If the court determines that the proceeding has been commenced in a court in another state having jurisdiction substantially in accordance with the UCCJEA, the California court must stay the proceedings and communicate with the out-of-state court on the question of that state's exclusive, continuing jurisdiction. If the out-of-state court does not determine that California is a more appropriate forum, the California court must dismiss the proceeding. (Fam. Code § 3426(b).)

d. Proceeding To Enforce Order in Another State

In a proceeding to modify a child custody determination, a California court must determine whether a proceeding to enforce the determination has been commenced in another state. (Fam. Code § 3426(c).) If a proceeding to enforce a child custody determination has been commenced in another state, the court may do any of the following (Fam. Code § 3426(c)):

Stay the proceeding for modification pending the entry of an order of a court of the other state enforcing, staying, denying, or dismissing the proceeding for enforcement.
Enjoin the parties from continuing with the proceeding for enforcement.
Proceed with the modification under conditions it considers appropriate.

E. Declining Exercise of Jurisdiction To Modify Order

A California court that has jurisdiction under the UCCJEA to make a child custody determination may decline to exercise its jurisdiction at any time if it determines that it is an inconvenient forum under the circumstances and that a court of another state is a more appropriate forum. (Fam. Code § 3427 (applicable to both initial custody orders and modification of custody orders).)

8. Venue

Venue, in cases where the custody issues are part of dissolution proceedings, lies in a county in which either party has been a resident for 3 months immediately before the filing, as long as the party was also a California resident for 6 months immediately before the filing. (Fam. Code § 2320; CCP § 395.) "Residency, for purposes of dissolution, means domicile which requires both physical presence and intent to remain 'indefinitely." (Marriage of Obrecht (2016) 245Cal.4th 1, 13-14, 199Cal.Rptr.3d 438 (citations omitted, emphasis in original).)

In cases where the custody issues are part of an action for legal separation or nullity, proper venue is a county in which either party resides at the commencement of the action. (CCP § 395.)

A motion to change venue may be brought on grounds that the ends of justice would be promoted by the change. (CCP § 397(e); See Silva v Superior Court (1981) 119Cal.3d 301, 173Cal.Rptr. 832.)

In proceedings to determine parentage under the Uniform Parentage Act, the case must be brought in one of the following counties (Fam. Code § 7620(c) and 7962(e)):

The county in which the child resides or is found;
If the child is the subject of a pending or proposed adoption, any county where the licensed California adoption agency to which the child has been or is proposed to be relinquished to maintains an office, or the county where an office of the department or a public adoption agency that is investigating the petition is located; or
If the parent is deceased, the county where probate proceedings for the estate of the parent of the child has been or could be commenced.

If the child was conceived pursuant to an assisted-reproduction agreement for gestational carriers, the case may be brought in the county where the (Fam. Code § 7962(e)):

Child is anticipated to be born;
Intended parent or intended parents reside;
Surrogate resides;
Assisted-reproduction agreement for gestational carriers is executed; or
Medical procedures pursuant to the agreement are to be performed.

IV. Types of Orders and Jurisdiction

1. Overview and Definitions

a. Legal and Physical Custody

See Judicial Council Forms FL-341(D), Physical Custody Attachment, FL-341, Child Custody and Visitation (Parenting Time) Order Attachment, and FL-341(C), Children's Holiday Schedule Attachment.

b. Sole Custody

Sole legal custody means that one parent has the right and responsibility to make the decisions relating to the health, education, and welfare of the child. (Fam. Code § 3006.)

Sole physical custody means that the child resides with and is under the primary supervision of one parent, subject to court-ordered visitation by the other parent. (Fam. Code § 3007.)

c. Joint Custody

"Joint custody" means both joint physical custody and joint legal custody. (Fam. Code § 3002.)

"Joint legal custody" means both parents share the right and responsibility to make decisions related to the health, education, and welfare of the minor child. (Fam. Code § 3003.)

2. Presumption and Special Rules Applicable to Joint Custody Orders

The court may also refer parties to Family Court Services programs.

I. Jurisdiction

1. Family Court Proceedings

Proceedings for dissolution of marriage, nullity of marriage, and legal separation of the parties.
An action for exclusive custody under Fam. Code § 3120.
A proceeding to determine physical or legal custody or visitation in a proceeding under the Domestic Violence Prevention Act (DVPA) (Fam. Code §§ 6200 et seq).
A proceeding to determine physical or legal custody or visitation in an action under the Uniform Parentage Act (UPA) (Fam. Code §§ 7600 et seq).
A proceeding to determine physical or legal custody or visitation in an action brought by the local child support agency under Fam. Code § 17404.

2. Preemption of Family Court Custody Jurisdiction

a. Juvenile Court Jurisdiction

b. Tribal Jurisdiction Under Indian Child Welfare Act

California law also recognizes that (Welf & I C § 224(a)(1), (2); Fam. Code § 175(a); Prob C § 1459(a)):

No resource is more vital to the continued existence and integrity of an Indian tribe than its children;
California has an interest in protecting Indian children who are members of or eligible for membership in an Indian tribe;
California is committed to promoting practices to prevent involuntary out-of-home placement for Indian children;
When involuntary out-of-home placement is necessary, California is committed to putting Indian children in a placement that reflects the child's unique tribal culture and promotes tribal ties; and
It is in the interest of an Indian child that the child's tribal membership and connection to the tribal community be encouraged and protected, even if the Indian child was not originally in the custody of an Indian parent or Indian custodian.

In all Indian child custody proceedings, as defined in the ICWA, the court must (Welf & I C § 224(b); Fam. Code § 175(b); Prob C § 1459(b)):

Consider these legislative findings,
Strive to promote the stability and security of Indian tribes and families,
Comply with the ICWA, and
Seek to protect the child's best interests.

The Judicial Council has adopted Rules of Court to govern ICWA proceedings in juvenile, family, and probate proceedings (see Cal. Rules of Ct., rules (“CRC”) 5.480-5.487 and CRC 7.1015.)

The ICWA regulates custody awards to nonparents to a higher degree. For a comprehensive discussion of the ICWA.

3. Interstate Disputes

A custody proceeding pertaining to an Indian child is not subject to the UCCJEA to the extent it is governed by the Indian Child Welfare Act.

4. Initial Custody Determinations

a. Grounds for Jurisdiction

Physical presence of, or personal jurisdiction over, a party or a child is not necessary or sufficient to make a child custody determination. (Fam. Code § 3421(c).)

b. California Is Child's Home State

Person acting as a parent. A person acting as a parent means a person, other than a parent, who (Fam. Code § 3402(m)):

has physical custody of the child or has had physical custody for a period of 6 consecutive months, including any temporary absence, within 1 year immediately before the commencement of the custody proceeding; and
has been awarded legal custody by a court or claims a right to legal custody under California law.

c. No Other Home State; California More Appropriate Forum

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

d. Other Courts Having Jurisdiction Deferred to California

e. Jurisdiction in No Other Court

5. Declining Exercise of Jurisdiction

a. Simultaneous Proceedings in Another State

b. Inconvenient Forum

Whether domestic violence has occurred and is likely to continue in the future and which state could best protect the parties and the child.
The length of time the child has resided outside California.
The distance between the California court and the court in the state that would assume jurisdiction.
The degree of financial hardship to the parties in litigating in one forum over the other.
Any agreement of the parties as to which state should assume jurisdiction.
The nature and location of the evidence required to resolve the pending litigation, including testimony of the child.
The ability of the court of each state to decide the issue expeditiously and the procedures necessary to present the evidence.
The familiarity of the court of each state with the facts and issues in the pending litigation.
If the California court determines that it is an inconvenient forum and that a court of another state is a more appropriate forum, it
Must stay the proceedings on condition that a child custody proceeding be promptly commenced in another designated state and may impose any other condition the court considers just and proper (Fam. Code § 3427(c)); and
May require the party who commenced the proceeding to pay, in addition to the costs of the proceeding in this state, necessary travel and other expenses, including attorney's fees, incurred by the other parties or their witnesses (Fam. Code § 3427(e)).

c. Unjustifiable Conduct of Petitioner

The parents and all persons acting as parents have acquiesced in the exercise of jurisdiction.
A court of another state otherwise having jurisdiction under Fam. Code §§ 3421-3423, determines that California is a more appropriate forum under Fam. Code § 3427.
No court of any other state would have jurisdiction under the criteria specified in Fam. Code §§ 3421-3423.

Fam. Code § 3428 is directed at a petitioning parent's wrongful taking of a child from another state in an attempt to create jurisdiction in a chosen forum.

6. Emergency Jurisdiction

7. Modification Jurisdiction

a. Modification of Prior California Order

A California court determines that the child, the child and one parent, or the child and a person acting as a parent no longer have a "significant connection" with California, and that substantial evidence is no longer available in California concerning the child's care, protection, training, and personal relationships. A "significant connection" exists as long as the parent exercising visitation rights still lives in California and the relationship with the child has not deteriorated to the point at which the exercise of jurisdiction would be unreasonable. (Grahm v Superior Court(2005) 132Cal.4th 1193, 1200, 34Cal.Rptr.3d 270.)
A California court 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 California.

b. Modification of Order of Another State

The court of the other state determines it no longer has exclusive, continuing jurisdiction under Fam. Code § 3422 or that a California court would be a more convenient forum under Fam. Code § 3427; or
A California court 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.

c. Duty to Communicate in Simultaneous Proceedings

d. Proceeding To Enforce Order in Another State

Stay the proceeding for modification pending the entry of an order of a court of the other state enforcing, staying, denying, or dismissing the proceeding for enforcement.
Enjoin the parties from continuing with the proceeding for enforcement.
Proceed with the modification under conditions it considers appropriate.

E. Declining Exercise of Jurisdiction To Modify Order

A California court that has jurisdiction under the UCCJEA to make a child custody determination may decline to exercise its jurisdiction at any time if it determines that it is an inconvenient forum under the circumstances and that a court of another state is a more appropriate forum. (Fam. Code § 3427 (applicable to both initial custody orders and modification of custody orders).)

8. Venue

In cases where the custody issues are part of an action for legal separation or nullity, proper venue is a county in which either party resides at the commencement of the action. (CCP § 395.)

A motion to change venue may be brought on grounds that the ends of justice would be promoted by the change. (CCP § 397(e); See Silva v Superior Court (1981) 119Cal.3d 301, 173Cal.Rptr. 832.)

In proceedings to determine parentage under the Uniform Parentage Act, the case must be brought in one of the following counties (Fam. Code § 7620(c) and 7962(e)):

The county in which the child resides or is found;
If the child is the subject of a pending or proposed adoption, any county where the licensed California adoption agency to which the child has been or is proposed to be relinquished to maintains an office, or the county where an office of the department or a public adoption agency that is investigating the petition is located; or
If the parent is deceased, the county where probate proceedings for the estate of the parent of the child has been or could be commenced.

If the child was conceived pursuant to an assisted-reproduction agreement for gestational carriers, the case may be brought in the county where the (Fam. Code § 7962(e)):

Child is anticipated to be born;
Intended parent or intended parents reside;
Surrogate resides;
Assisted-reproduction agreement for gestational carriers is executed; or
Medical procedures pursuant to the agreement are to be performed.

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SEIGE LAW PC

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CHILD CUSTODY AND VISITATION

II. Parentage and Custody

III. Types of Orders and Jurisdiction

IV. Types of Orders and Jurisdiction

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SEIGE LAW PC

Legal Counsel You Can Rely On

CHILD CUSTODY AND VISITATION

II. Parentage and Custody

III. Types of Orders and Jurisdiction

IV. Types of Orders and Jurisdiction

Contact Us

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