California Jurisdiction: Selected Topis
CALIFORNIA COURTS JURISDICTION OVER ESTABLISHING OR MODIFYING FAMILY LAW ORDERS
I. California Court Jurisdiction over establishing or modifying child custody including terminating parental rights:
A fundamental difference between UIFSA (California State law regarding support orders) and UCCJEA (California State law regarding custody orders) is that child support jurisdiction requires personal jurisdiction over the respondent-obligor. See 28 U.S.C.§ 1738B(c)(1)(B); Family Code § 4905.
PKPA (Parental Kidnapping Prevention Act-Federal Law) and UCCJEA are SUBJECT MATTER JURISDICTION STATUTES only; it is not necessary to have personal jurisdiction over a parent or child if the requirements of those statutes have otherwise been met. In re Marriage of Leonard (1981) 122 Cal.App.3d 443, 459, 175 Cal. Rptr. 903. (criticized on other grounds in Kumar v. Superior Court(1982) 32 Cal.3d 689, 699 n.12, 186 Cal. Rptr. 772, 652 P.2d 1003.
Subject matter jurisdiction over Family Code § 7800 custody proceedings is in the superior court. Family Code § 200. Venue is proper in the county in which the minor resides, the county in which the minor is found, a county where any of the acts that are set forth in Family Code § 7820 et seq., are alleged to have occurred, the county in which a petition for the adoption of the child has been filed, or the county in which there is an office of the adoption agency to which the child has been relinquished or proposed to be relinquished. Family Code § 7845.
The current UCCJEA defines a "child custody proceeding" to include a proceeding for termination of parental rights, Family Code § 3402(d) and this is consistent with prior case law under the former UCCJA. See In re Gloria F. (1989) 212 Cal.App.3d 576, 582, 260 Cal.Rptr. 706.
Code of Civil Procedures §418.10 has been used by some creative advocates to justify a motion to quash summons in custody-related actions based on lack of personal jurisdiction over a parent who resides outside California. However, Code of Civil Procedure §418.10(a)(1) states “To quash service of summons on the ground of lack of jurisdiction of him or her." The Code does not specify whether the lack of jurisdiction is personal jurisdiction or subject matter jurisdiction.
At any event, a California Court under UCCJEA does not need to ascertain personal jurisdiction over a parent or a child to have the power to establish or modify child custody orders including terminating parental rights of a parent outside California; the court needs only subject matter jurisdiction.
Custody proceedings in California are not subject to the standards of commercial litigations where either “minimum contact" or “purposefully availed himself/herself of the laws of the jurisdiction" is required to establish jurisdiction over the “defendant" Custody proceedings are subject only to UCCJEA and PKPA, both of which require only subject matter jurisdiction.
II. California Court Jurisdiction over modifying Spousal Support Orders issued by an out-of-state court.
Golden Rule: Start by researching the law of the state that originally issued spousal support, if the foreign state’s law allows continued and exclusive jurisdiction over its spousal support order, then California has no jurisdiction to modify the order.
Family Code § 4909(f) states “A tribunal of this state may not modify a spousal support order issued by a tribunal of another state having continuing and exclusive jurisdiction over that order under the law of that state." The Court in re the Marriage of Rassier (2002) 96 Cal. App. 4th 1431; 118 Cal. Rptr. 2d 113, the Court agreed with the Wife’s argument that that the California trial court was precluded under Family Code § 4909(f) from modifying or terminating the Florida spousal support order even when both Wife and Husband moved out of Florida after the spousal support order was issued by Florida Court. The court held that notwithstanding that neither of the parties resided in Florida, the California trial court did not have the power to modify the spousal support order issued by the Florida court because under Florida law, as it existed at the time of the spousal support order, the Florida court that issued the order had continuing jurisdiction to modify or terminate the support obligation for as long as the obligation existed, and the Florida court's jurisdiction was exclusive. The California trial court's conclusion that Florida no longer had jurisdiction over the parties was incorrect with respect to the modification of the Florida spousal support order, because the Florida court had the power to retain and retained exclusive jurisdiction over the parties in the dissolution proceeding by virtue of its jurisdiction over its support order.
III. California Court Jurisdiction over modifying Spousal Support Orders issued by an out-of-state court.
Well we saved the best for the last. Let’s start by examining the Federal law; Full faith and credit for child support orders or FFCCSOA; 28 USCS § 1738B and its interaction with California Family Code.
Warning: This section examine only the authority of a California Court to modify an out-of-state child support order and does not deal with California’s ability to enforce the order. (1) Determine if the child or either one of the parents still resides in the foreign State that issued the child support order; if so then the foreign state has the ability to modify the child support orders under §1738B(d), which states: “A court of a State that has made a child support order consistently with this section has continuing, exclusive jurisdiction over the order if the State is the child's State or the residence of any individual contestant unless the court of another State, acting in accordance with subsections (e) and (f), has made a modification of the order." This is codified in Family Code 4960(a)(1). (2) Determine if both parents filed a written consent with the issuing tribunal to have California modify the issuing tribunal’s order, if so then California has jurisdiction. This is codified by 1738B(e)(B) and Family Code §4960(a)(2). (3) Determine if all the parties who are individuals reside in California and the child does not reside in the foreign jurisdiction that issued the support order. If so, California has jurisdiction to modify an out-of-state child support order under Family Code § 4962. (4) It gets complicated when one parent resides in California and the other parent is no longer a resident of the issuing state but also is not a California resident. In a situation like this, California Courts’ authority to modify an out-of-state child support order would be determine by the parent who asked for modification of the support order:
A. If the parent who is a resident of California asked for modification of an out-of-state child support order, the California Court has no jurisdiction to modify
B. If the non-resident parent is the one who asked for modification then California will have jurisdiction to entertain the modification request by the non-resident parent. Family Code § 4960(a)(1)(ii) and 1738B(i)