Written by attorney Anthony Payman Azemika

A CA Appellate Court has ruled that children should not have been included in restraining orders.

A California Court of Appeal has ruled that a Trial Court made a mistake by including children in the D.V.P.A. restraining order that was granted to Mother and by making custody and visitation orders because Mexico Trial Court had exclusive continuing jurisdiction over the children under Uniform Child Custody Jurisdiction Enforcement Act. In the case of In re Marriage of Fernandez-Abin and Sanchez, Mother and Father were married in Mexico in 1995. Their two children were born in San Diego in 1998, and 2003, respectively. In October 2007, Mother filed for legal separation in Tijuana Trial Court. Later that month, she and Father made an agreement regarding his visitation rights. After Mother filed for divorce in December of 2007, Tijuana Trial Court granted her legal and physical custody of the children and ordered Father to pay child support. Father was also ordered not to leave Mexico unless he had local attorney. Late in April of 2008, Mother's case was transferred to another judge. In June of 2008, Father and 10 men armed with assault weapons took children from Mother's parents' house in Tijuana and took off for parts unknown. Mother sought help from Tijuana District Attorney and filed a request for the children's return. Tijuana Trial Court then ordered District Attorney to investigate and terminated visitation agreement. Tijuana Trial Court later ordered Father not to have visitation or remove children from Tijuana. Mother initiated Hague Convention petition and moved legally to San Diego. When Tijuana Trial Court issued an order conditioning Father's visitation on returning the children to Mother, Father refused to do so. After Tijuana Trial Court ordered Tijuana authorities to "use any force necessary" to effect the children's return, law enforcement twice tried and failed to recover the children. In September of 2008, following a hearing on Mother's Hague petition, San Diego District Attorney child abduction unit was able to remove the children from Father's Chula Vista home and reunite them with Mother. According to Mother, Father then threatened to have her killed if she returned to Tijuana. She and the children ended up living in domestic violence shelter in San Diego. On November 7, 2008, Mother filed a request for a restraining order to protect her and the children from Father's threats, abuse, and domestic violence. San Diego Trial Court granted Temporary Restraining Order that included personal conduct and stay-away orders covering Mother and children, granted temporary legal and physical custody to Mother, and scheduled a hearing for December 1, 2008. Meanwhile, Tijuana Trial Court held hearings on visitation request filed by Father, made orders regarding return of Mother's personal property, and declined to order visitation unless Father, Mother, and the children had a psychological evaluation. On November 25, 2008, Tijuana Trial Court issued a visitation order, permitting Father weekly supervised visits for 10 hours, plus daily telephone contact of 60 minutes. On November 16, 2008, Father filed a motion to quash and for dismissal of the restraining order action on grounds of forum non conveniens and lack of Uniform Child Custody Jurisdiction Enforcement Act jurisdiction. At the December 1, 2008 hearing, San Diego Trial Court found that it had temporary emergency U.C.C.J.E.A. jurisdiction over the children under California Family Code Section 3424(a), cautioned Father to comply with the existing custody and visitation orders, and to seek resolution of visitation issues in Tijuana Trial Court. At the continued hearing on December 10, 2008, Trial Court found that Tijuana Trial Court orders were appropriate and refused to assume U.C.C.J.E.A. jurisdiction over the children. San Diego Trial Court issued restraining orders to protect Mother, and granted the motion to quash and to dismiss as to the children. Mother's case was then transferred to Judge Lisa Schall. On February 13, 2009, Tijuana Trial Court sent a letter to San Diego Trial Court in the restraining order, stating her belief that the children would not be safe visiting Father in Tijuana because of extensive publicity regarding Mother and Father's divorce, but emphasizing Father's right to see the children, explaining visitation orders, and asking to be informed about San Diego Trial Court's actions. At the evidentiary hearing on the restraining order in April of 2009, Father argued that San Diego Trial Court lacked U.C.C.J.E.A. jurisdiction to include the children in scope of restraining order. San Diego Trial Court, however, found that the best-interests doctrine permitted including the children in any order issued. When the hearing concluded, San Diego Trial Court found that both Mother and the children needed protection, and San Diego Trial Court had jurisdiction to make orders to protect the children, who were living here. After the April 16th hearing on custody and visitation, San Diego Trial Court found that it had jurisdiction as to the restraining order action (which could include the children), and could balance Tijuana Trial Court's visitation and custody orders against current facts and evidence; San Diego Trial Court then appointed reunification counselor. When Father subsequently moved to vacate the April orders, San Diego Trial Court found that California was the children's habitual residence since June of 2008, and continued the orders limiting Father's visitation to webcam. In September 2008, San Diego Trial Court granted Father's request to register Tijuana Trial Court's letter, but found that Tijuana Trial Court did not have all of the current facts, San Diego Trial Court would make ultimate decision on visitation, and San Diego Trial Court had previously granted legal and physical custody of the children to Mother. Claiming that San Diego Trial Court lacked necessary U.C.C.J.E.A. jurisdiction to make custody and visitation orders or include the children in the restraining order, Father appealed, and the California Appellate Court reverses the Trial Court's decisions. The Appellate Court has found that (1) U.C.C.J.E.A. applies to restraining order proceedings; (2) absent finding of temporary emergency jurisdiction, Trial Court lacked U.C.C.J.E.A. jurisdiction because Tijuana Trial Court had exclusive continuing U.C.C.J.E.A. jurisdiction; and (3) San Diego Trial Court failed to consider exercising emergency jurisdiction in making its restraining, custody, and visitation orders. Thus, the Appellate Court reversed April 9, 2009, restraining order as it pertains to the custody and visitation and remanded the case back to San Diego Trial Court with directions to determine whether it had emergency jurisdiction when it included the children in that order, to make appropriate findings under U.C.C.J.E.A., and to adhere to U.C.C.J.E.A. statutory requirements.

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