Timothy Patrick Peabody Child Custody Law Blog on Lawyers.com

UNIFORM CHILD CUSTODY JURISDICTION AND ENFORCEMENT ACT

AMENDED: Family Code 3400, et. seq.

EXISTING: Under the Uniform Child Custody Jurisdiction act [UCCJA], a California court has jurisdiction to make a child custody determination, as defined, by initial or modification decree, in any of specified situations, including that it is in the best interest of a child who has specified connections with this state, or that the child is physically present in the state and it is necessary in an emergency to protect the child for certain reasons. A court must decline to exercise its jurisdiction if it determines that it is an inconvenient forum and a court in another state is a more appropriate forum, or if the petitioner has wrongfully taken the child from another state or engaged in similar reprehensible conduct. California courts are required to recognize and enforce out-of-state child custody decrees subject to specified conditions. Superior court clerks are required to maintain a registry of those custody decrees and other documents by superior court clerks.

NEW: California has incorporated the Uniform Child Custody Jurisdiction and Enforcement Act [UCCJEA], which was adopted by the National Conference of Commissioners on Uniform State Laws in 1997. In its notes to the UCCJEA, the commissioners set forth two primary purposes behind the new act:

(1) To revise the law on child custody jurisdiction in light of federal enactments and thirty years of contradictory case law, and
(2) To provide for an expedited process to enforce interstate child custody and visitation determinations.

The highlights of the UCCJEA are as follows:

Providing for home state priority: The Parental Kidnaping Prevention Act, [PKPA] provides for full faith and credit only when the custody determination is made by the home State. Other state custody determinations are not entitled to PKPA enforcement unless there is no home State. The UCCJA, however, specifically authorizes four independent bases of jurisdiction without prioritization. Under the UCCJA a significant-connection custody determination may have to be enforced even if it would be denied enforcement under the PKPA. The UCCJEA prioritizes home state jurisdiction.

A clarification of emergency jurisdiction: The new act provides various "what-if's" to deal with cases in which orders have already been made in other jurisdictions, and where such orders have not been made. The legislature states that, in making these changes, intends that the grounds on which a court may exercise temporary emergency jurisdiction be expanded.

Providing for exclusive continuing jurisdiction for the decree granting State: The UCCJA did not clearly state that the decree granting state retained exclusive jurisdiction to modify that decree. This has resulted in major problems with regard to conflicting custody decrees and determining whether a state has relinquished its jurisdiction. These issues are addressed in Family Code 3410, 3422, and 3426.

What custody proceedings are covered: There is no general agreement whether the UCCJA applies to neglect, abuse, dependency, wardship, guardianship, termination of parental rights, adoption and protection from domestic violence proceedings. To resolve this ambiguity, the UCCJEA includes a sweeping definition that includes virtually all cases involving custody of or visitation with a child as a " child custody proceeding." (Family Code 3402(c))

Role of "Best Interests": The use of the term "best interest" in the jurisdictional sections of the UCCJA often served as an invitation to address the merits of the custody dispute in the jurisdictional determination, to the point where "best interests" considerations would override jurisdictional determinations or provide an additional jurisdictional basis. The UCCJEA eliminates the term "best interests" in order to establish clarity between the jurisdictional standards and the substantive standards relating to custody and visitation of children.

Be prepared to argue extensively for the best interests of the children in arguing for your jurisdiction as the most appropriate jurisdiction.

For more information or clarification, contact Timothy P. Peabody, Esq. at www.ThePeabodyLawFirm.com or call 949 200 4610.