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Where do I file for Child Custody & Visitation? – UCCJEA

by | Jul 11, 2022 | Child Custody & Visitation, Divorce

If you are in a situation where you need the Court’s assistance regarding custody and visitation of your children, the last thing you need to worry about is making sure you are filing your case in the right place. This issue often arises when one parent lives in one state, and another parent lives in another state. So where do you file your case? Which state has the authority and jurisdiction to make orders regarding your case and children? If both parents were living in the same state and one moves, then what happens? Are the rules the same if you live in the same state but different counties? Luckily, the Uniform Child Custody Jurisdiction and Enforcement Act was created to relieve this problem and provide some guidance.

The Uniform Child Custody Jurisdiction Enforcement Act (also known as the UCCJEA) is a set of laws that govern child custody and visitation cases when there is a question regarding which state or county (also known as jurisdiction) has the power to be making the custody and visitation orders for that child/those children. The UCCJEA was created so there was a universal set of laws for states to adopt so there is less chance of jurisdiction competition, confusion, and conflicting orders. As such, most states have adopted the UCCJEA and codified it into their own state laws in some way. California is a state that has adopted the UCCJEA and codified it into law under California Family Code Sections 3400-3465.

Court’s Jurisdiction

For a Court to be able to make orders regarding a child, the Court must have jurisdiction over the parties involved, including the parents. Because of this, some parents may argue a Court may not have jurisdiction over them, and thus cannot make orders regarding their children. California Family Code Section 3409 even states California does not gain “personal” jurisdiction over a parent simply because that parent participates in a child custody proceeding under the UCCJEA within California.  However, if the child resides in the state because of the acts or directives of the parent outside the state or county, then personal jurisdiction may be asserted over that parent under California Family Code Section 5700.201(a)(5).

Pursuant to California Family Code Section 3421 California courts have jurisdiction and the power to make custody and visitation orders when a child has lived in California for 6 months or more, or if that is not possible because the child is not 6 months old, then California courts can have jurisdiction so long as the child was born in California. This is known as the “home state” rule. Additionally, if no other state has jurisdiction over the matter, California may assert jurisdiction.

The child can be present in another state when the case is filed, so long as the child was a resident of California for at least 6 months. Under the UCCJEA, California courts may even have the ability to modify child custody and visitation orders that were entered by another judge in another county or state.

In emergency cases, Court’s in California can even make temporary child custody orders even if California is not the child’s “home state”. California Family Code Section 3424 (a) states California courts have temporary emergency jurisdiction if the child is present in this state, and the child has been abandoned or it is necessary in an emergency to protect the child because the child, or a sibling or parent of the child, is subjected to, or threatened with, mistreatment or abuse.

There are, however, times when the child has been a resident of California to the extent California is considered the child’s “home state”, yet California decides to decline jurisdiction because of the bad acts and unjustifiable conduct by a parent. Jurisdiction can also be declined if it would be extremely inconvenient for the case to occur in this state, though this is a difficult bar to reach.

So, what happens when one parent files in one jurisdiction and another parent files in another jurisdiction simultaneously for custody and visitation orders regarding the same child/children? In those instances, the courts from each jurisdiction are allowed to communicate with each other to determine which jurisdiction has the authority to make custody and visitation orders. Generally speaking, the judges from each jurisdiction will call each other to discuss the case to try to determine which jurisdiction has authority.

In California, California Family Code Section 3410 states,

(a) A court of this state may communicate with a court in another state concerning a proceeding arising under this part. (b) The court may allow the parties to participate in the communication. If the parties are not able to participate in the communication, they must be given the opportunity to present facts and legal arguments before a decision on jurisdiction is made. (c) Communication between courts on schedules, calendars, court records, and similar matters may occur without informing the parties. A record need not be made of the communication. (d) Except as otherwise provided in subdivision (c), a record must be made of a communication under this section. The parties must be informed promptly of the communication and granted access to the record. (e) For the purposes of this section, “record” means information that is inscribed on a tangible medium or that is stored in an electronic or other medium and is retrievable in perceivable form.

Jurisdictional Cases Under UCCJEA Should Be Given Priority

The Court system is, unfortunately, extremely backed up and the Court will likely feel the effects of covid-19 and the resulting slowdown for many years to come. Luckily, California does recognize that a case with disputed jurisdiction should be decided as quickly as possible. As such, California Family Code Section 3407 states that when the issue of jurisdiction is raised during a child custody or visitation proceeding, the court must handle the case expeditiously and provide a prompt hearing date to resolve the issue.  Parties should be aware, however, that the court must still have available time to hear a case and if an evidentiary hearing/trial is needed, it may still take several months before your case is heard.