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In our current world, when a couple divorces it is not uncommon for one parent to move to another state. In most cases, the state that originally decides a custody matter retains jurisdiction over the matter, and other courts must abide by the original court’s order. The Court of Appeals for the Fourth District of California recently addressed the issue of when a court is permitted to modify a custody order issued by another jurisdiction. If you share custody of your child pursuant to an order that was issued in another state that you or your co-parent wishes to amend, it is critical to meet with a seasoned California family law attorney to discuss whether the order is subject to modification by the California courts.

Factual Background of the Case

Reportedly, the mother and father share custody of two children. The terms of the custody were determined by a consent order issued by a North Carolina court in 2017. In 2018, however, the mother filed a family law action in the California courts and registered the North Carolina order as required by the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA). She then filed a petition for an order modifying ten of the terms set forth in the North Carolina order.

It is alleged that Oral argument was held on the matter, after which the court ruled that California had UCCJEA jurisdiction and that California had jurisdiction to enter custody orders in the case. The court granted the mother’s petition in part and denied it in part. The mother then appealed. On appeal, the court reversed the trial court ruling on the grounds that the trial court lacked jurisdiction to modify the North Carolina order.

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When determining child custody, the California family law courts are obligated to render decisions that are in the child’s best interest. Thus, in some cases, a court must make the difficult decision to terminate a parent’s custodial rights, based on the fact a parent has abandoned the child. A California appellate court recently analyzed what constitutes abandonment, in a case in which the biological mother of two children did not seek or contact the children for over a year while she sought treatment for addiction. If you are in the process of determining custody of a child it is essential to engage an experienced California family law attorney to help you protect your parental rights.

Factual Background of the Case

Reportedly, the mother and the father were married, had two daughters, and then divorced. The mother was granted primary custody and the father was granted visitation. Four years after the divorce, the father began to suspect the mother was using illicit drugs and sought temporary sole custody of the children. The mother admitted to using drugs and stipulated to allow the father to have temporary sole custody while she underwent treatment for drug and alcohol addiction. The mother was in treatment for a total of fourteen months.

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It is not uncommon for a divorced couple that shares custody of a child to live in close proximity to one another, both for the sake of convenience and to benefit the child. In some cases, however, one parent will move far away, and may even relocate to another state. It is inevitable that a parent’s out of state relocation will affect his or her custody rights, but when the parent moving away seeks to obtain primary custody and relocate the child to another state, it will completely alter the lives of both parents and the child. A California court of appeals recently explained the factors a court must weigh when an out of state parent seeks to relocate a child to his or her state, in a case in which a father who moved to Arkansas was granted physical custody of a child.  If you share custody of a child and your co-parent wants to relocate your child to another state it is vital to retain a skillful California family law attorney to assist you in protecting your parental rights.

Living Situations of the Child’s Parents

Allegedly, the mother and father married in 2005 and divorced in 2007. They had one child together. A 2008 custody order granted the mother primary physical custody, and a final custody order in 2009 granted the father the right to overnight visits. The mother stated she would not comply with the terms of the order. In 2010, the custody order was modified due to the father’s lack of employment or housing.

It is reported that when the father obtained housing, the mother again stated she would not allow the child to stay overnight with the father. In 2011, the father moved to Arkansas. Subsequently, in 2017, the mother requested sole custody, noting that the father had only seen the child for 35 days each year. The father filed a response asking the court to grant joint custody, with his home as the child’s primary residence. Following a hearing, the court granted the parents joint legal custody and awarded primary physical custody to the father. The mother appealed.

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A child custody move-away case occurs when one party makes the decision to relocate outside of the county in which he or she was residing. Usually, move-away cases involve the complex issues that arise when a parent moves beyond a distance that permits for the moving-parent to continue to take the minor child to his or her school. This means that move-away cases typically involve moving to a home beyond 10 miles from the party’s prior residence.

If you are involved in a California Custody Case, you should first be aware of the existence of the Automatic Temporary Restraining Orders (ATROs) that go into effect automatically at the commencement of either a divorce (dissolution of marriage) case and at the outset of a Petition for Child Custody and Visitation Orders. These ATROs go into effect for the Petitioner upon the filing of the case and become effective upon the Respondent(s) following the personal service of the Petition upon the Respondent or upon the filing of a Response to the case by the Respondent. These Restraining Orders can be found on page 2 of the Summons.

The ATRO relating to the relocation of the minor child in a divorce case reads:

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While many people mistakenly believe that domestic violence is a problem that only affects younger people, it is an unfortunate fact that domestic violence can and does occur in every facet of society. If a court finds a party’s claims of domestic violence credible, it will typically draft a domestic violence restraining order limiting contact based on the unique circumstances of the case. In some cases, the meaning of the terms of the order may not be clear due to extenuating factors. This was evidenced in a recent domestic violence case in which the court addressed the meaning of the term “dwelling” with regards to restrictions imposed on an elderly divorced couple that lived in the same building. If you or a loved one are the victim of domestic violence or you have been accused of domestic violence it is important to consult a knowledgeable California family law attorney as soon as possible to handle your case.

Reportedly, the former husband and former wife were an elderly couple that continued to live in the same apartment building after dissolving their marriage. Their relationship was especially contentious, and they routinely engaged in legal action against one another. In this particular instance, the husband requested an elder abuse restraining order and the wife requested a domestic violence restraining orders against the husband, due to various alleged acts of abuse.

Following a hearing, the court granted both the husband’s and the wife’s request. The order against the wife stated that the wife was prohibited from entering the husband’s dwelling. The husband subsequently appealed the trial court ruling. He argued, in part, that the trial court erred in defining his “dwelling” as his apartment unit and not the entire building. The court rejected the husband’s arguments and denied his appeal.

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DVRO CHECKLIST (CURRENT AS OF 12/1/2019)

I. FORMS FOR APPLYING FOR A DOMESTIC VIOLENCE RESTRAINING ORDER IN CONTRA COSTA COUNTY

The following forms are mandatory for applying for a Domestic Violence Restraining Order, unless specified as optional below. Please be sure to read each item on the below checklist. Please go to the following website to obtain the forms, or you may go to google.com and type in the form numbers to obtain forms.

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Custody cases often produce custody evaluations and other sources of sensitive information. As such, certain documents may be deemed confidential and both parties are prohibited from disclosing any information in the document. If a party, or his or her attorney, discloses information in a confidential document it can result in adverse consequences.

This was illustrated in a recent case decided by a California appellate court, in which the court imposed sanctions on a wife’s attorney for revealing information contained in a confidential custody evaluation. If you are involved in a custody dispute, it is important to retain an experienced California family law attorney who will act in the best interest of both you and your child.

Facts Regarding the Divorce Actions

The wife had a child with her first husband. They divorced but were engaged in an ongoing custody dispute. The court ordered a custody evaluation and a psychological evaluation. The wife then married her second husband and gave birth to a second child. The second marriage dissolved, but the custody issue was unresolved. The first husband filed an affidavit in support of the second husband in the second action, alleging that the wife engaged in substantial misconduct involving both children.

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In a divorce proceeding, Family Code 2104 tells us what each party must disclose to the other party in order to advance the divorce case to a settlement conference or a trial:

(1) Each party shall serve on the other party a preliminary declaration of disclosure, executed under penalty of perjury on a form prescribed by the Judicial Council.  The commission of perjury on the preliminary declaration of disclosure may be grounds for setting aside the judgment, or any part or parts thereof, pursuant to Chapter 10 (commencing with Section 2120 ), in addition to any and all other remedies, civil or criminal, that otherwise are available under law for the commission of perjury.  The preliminary declaration of disclosure shall include all tax returns filed by the declarant within the two years prior to the date that the party served the declaration.

(2) The preliminary declaration of disclosure shall not be filed with the court, except on court order.  However, the parties shall file proof of service of the preliminary declaration of disclosure with the court.
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I am often asked, “What should I do to prepare for Family Court Services Mediation?”  The following are some tips to help you maximize your success at Family Court Services:

1. In custody disputes each party often tries to point the finger at the other party saying, “He is this” or “She did that”…  While putting down the other party may make you feel good, it will annoy or alienate the mediator. Don’t do it.

2. The focus of mediation has to the the child.  What is best for the child or in the child’s best interest.  Always focus on the child.  What is the child’s daily schedule?  Why is your proposed visitation schedule best for the child?  Why are your requested orders beneficial for the child? Why is the other party’s request bad or detrimental for the child?  Remember, the focus is not the other party. It is the child.

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By Ethan M. Weisinger

A client recently asked me, “What do I do about the enforcement of a child support order when both parents have moved out of the state where our child support order was made?”

     Under the Uniform Interstate Family Support Act (“UIFSA”, codified at California Family Code §4900, et. seq.), the concept of Continuing Exclusive Jurisdiction (“CEJ”) determines which State has the authority to modify a child support order. UIFSA’s “Controlling Order” is the order to be prospectively enforced. When multiple child support orders exist in a single case, it is necessary to determine CEJ and identify which order is the Controlling Order. Pursuant to UIFSA and Family Code §4909(d), “a tribunal of this state shall recognize the continuing, exclusive jurisdiction of a tribunal of another state which has issued a child support order pursuant to this chapter or a law substantially similar to this chapter.” The choice-of-law rule for the interpretation of a registered order is: the law of the issuing State governs the underlying terms of the controlling support order, with one exception, and that is if the registering and issuing State have different statutes of limitation for enforcement, the longer time limit applies. (UIFSA §604). In California there is no statute of limitations for collection of child support. Therefore a parent can seek child support arrears even after the child has grown to be an adult.

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