Trevino Law, Inc.

A Family Law Firm Located in South Orange County

For a family law lawyer call:  949.716.2102

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If you have a crises in your life, chances are, you need a divorce attorney . Whether it is child support , child custody , property division , or spousal support , Trevino Law can help you through. Trevino Law is dedicated to helping individuals through the legal process. If you are facing a family law issue, it is important to contact an attorney even before the petition is filed. 
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Custody and UCCJEA
(also known as the Uniform Child Custody and Jurisdiction Act)

California Family Code Section 3400 et. seq . governs jurisdiction over child custody when the parents live in different states.  Even if one of the parents of a minor child lives in California, California will not automatically have the ability, or jurisdiction, to make custody orders.

This section of the family code is often referred to as the Uniform Child Custody Jurisdiction Enforcement Act or the UCCJEA.  One of the goals of the UCCJEA is to prevent parents from moving to a different state with minor children in order to get a more favorable custody order. This is referred to as forum shopping. The UCCJEA curtails forum shopping by limiting the ability of a court in a new state from having the authority to make custody orders. In effect, it divests the court in the new state from making enforceable custody orders. 

Another purpose of the UCCJEA is to avoid re-litigation of the same issues in different states. Without the UCCJEA, one parent could obtain a custody order from California and the other parent could move to Utah which could result in a different custody order. By giving only one state the ability to hear a custody case, the courts ensure final determinations of custody.  
There are some proceedings in which the UCCJEA does not apply: 

  1. Adoption;
  2. Authorization to determine emergency medical care for the child;
  3. Children who are descendants of American Native Indians whose custody proceedings are governed by the Indian Child Welfare Act. 
The UCCJEA gives the child's home state the authority to make initial custody orders.

The child's home state is defined as the state in which the minor child was living on the date of the commencement of the proceeding, or was the home state of the child within six months before the commencment of the proceeding and the child is absent from this state but a parent or person acting as a parent continues to live in this state.  California Family Code section 3421(a)(1) .

Before California can act, the family court must also ask if the court of another state has jurisdiction as a home state or whether a court with jursidiction as the home state has declined to exercise jurisidiction on the grounds that California is the more appropriate jurisdicton. 
If there is no home state or a court that is the home state has declined to exercise jurisdiction, California will have jurisdiction as long as the child and at least one parent have significant ties with California, and there is substantial evidence in this state concerning the child's care, protection, training, and personal relationships.

California may also may make initial custody orders if all other courts have declined to exercise jurisdiction on the ground that Caifornia is the more appropriate forum to determine custody. 

Finally ,California can make an initial custody order if no other state would have jurisdiction. 
If a foreign country is involved, California courts shall treat that country as if it were a state of the United States for the purposes of custody if the custody determination made in a foreign country is in substantial conformity with the jurisdictional standards of the UCCJEA unless the child custody law of the foreign country violates fundamental principles of human rights.  Family Code Section 3405
Once California has determined that it has jurisdiction to make an order, that order is binding on all persons who have been properly served, properly notified, or have submitted to the court's jurisdiction. Service is proper if the service complies with California law. Notice is proper for a person outside of California if service complies with that states' laws. Notice may be provided by publication, but notice must be in a manner that reasonably gives actual notice to interested parties. 

If one party raises the question at a hearing as to whether or not California has jurisdiction to determine custody, that question shall be given priority in the calendar. 

If a person who does not live in the State of California participates in a proceeding under the UCCJEA, he or she is not subject to the jurisdiction of the state for other matters, unless that person is subject to the laws of California for other reasons.  If a person is not immune from service of process in this state, he or she can be subject to jurisdiction for other matters. This immunity does not extend to civil litigation based upon acts committed while an individual is found in this state.  California Family Code Section 3409.
A court of this state may communicate with a court in another state concerning a proceeding arising under the UCCJEA.

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.

Communication between courts on schedules, calendars, court records, and similar matters may occur without informing the parties. A record need not be made of this type of communication. On the other hand, a record must be made of a communication that is substantive. The parties must be informed promptly of the communication and granted access to the record.

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 California Family Code Section 3410

A parent or a party in a UCCJEA proceeding can offer testimony of witnesses who are located in other states including either party's testimony and the child's testimony.  The testimony can be taken by deposition or any other means that California accepts for testimony taken in another state. The family court itself can order that the testimony of a person be taken in another state and may determine the method in which the testimony is taken.

A California family court can also allow an individual residing in another state to be deposed or to testify by telephone, audiovisual means, or other electronic means. The California family court shall cooperate with courts of other states in designating an appropriate location for the testimony.

Documentary evidence transmitted from another state to a court of this state by technological means that do not produce an original writing may not be excluded from evidence on an objection based on the means of transmission California Family Code Section 3411 .

The UCCJEA allows the California family court to request the other state court to hold hearings, provide evidence, order a custody evaluation, provide transcripts, order a party to appear in person at a hearing. The family court may also provide records to courts in other states. 
A court in California will enforce a child custody order made by a court of another state if the court exercised jurisdiction in substantial conformity with the UCCJEA.

A California family court may use any remedy available under other laws of California to enforce a child custody determination made by a court of a different state. The remedies available for failure to abide by the order are cumulative and do not affect the availability of other remedies to enforce a child custody order.  California Family Code Section 3443 .
Even if a California family court does not have jurisdiction to modify custody orders made by another state, it can issue enforcement orders for visitation schedule made by another state. If a visitation schedule was not created, it can create a visitation schedule. The order would include a time period to allow the petitioner to obtain a court order from the state that has jurisdiction. If an order is not obained during the time period, then the California order remains in effect.
A custody order made in a different state can be registered in California under the UCCJEA.  In order to register the order, the parent must send all of the following documents to the court:

  • Registration document;
  • Certified and regular copy of the determination to be registered with a statement under penalty of perjury as to modification; and
  • The person seeking registration's address.
If a person wishes to challenge the validity of the registration order, he or she must request a hearing within 20 days of service. If registration of a foreign order is not contested, it shall be confirmed and precludes further contest of the order that could have been asserted at the time of registration.  California Family Code section 3445 .
Petitions under UCCJEA must be verified and require certified copies of all previous custody orders. However, a copy of the certified order can be attached to the pettion.  The petition requires a declaration that the court issuing the original custody order had the jurisidiction to enter the order under Family Code Section 3448 . It must also state the basis under which that court found jurisdiction, that the order attached to the petition is the current order, and that no other proceedings have been initiated which would affect the action in California. Once a petition has been filed, a hearing must be set and notice given to the other parent. Once notice it given, the parent has an opporunity to challenge the petition and any aspects of the original custody order. 
Once the court finds that a parent is entitled to immediate custody, the court shall order that the petitioner take immediate physical custody of the child unless the respondent shows that the prior order is invalid.  California Family Code Section 3450 .
The petitioner may also file an application for a warrant to take physical custody of the child if the child is likely to suffer serious harm. The petition must be heard on the next judicial day after the warranat is executed. The warrant will be effective unless a less intrusive means of enforcement is available. The respondent must be served with the warrant after the child is taken into custody.  California Family Code Section 3451 .
A prevailing party or the state can be awarded necessary and reasonable expenses incurred, including without limitation, costs, communication expenses, attorney fees, investigative fees, expenses for witnesses, travel expenses, child care unless the paying party shows that the fees are inappropriate.  California Family Code Section 3452 .  If the district attorney is involved in the case, the court may assess all direct expenses and costs inurred by the district attorney.