Child custody: where is the proper venue for deciding child custody matters; change of venue
THE DIFFERENCE BETWEEN JURISDICTION AND VENUE IN CUSTODY MATTERS.
Jurisdiction refers to the power of courts in a particular state to make decisions about custody. Venue refers to the particular judicial geographic area, usually the County, within a state where the action should be filed and heard. learn more about venue here
JURISDICTION OVER CUSTODY ISSUES
Any California court has jurisdiction to make an initial decision about the custody and visitation for a minor child if the child has been living continuously in California with a parent or person acting as a parent for the six months immediately before the commencement of the proceeding involving child custody matters.
Once a California court has issued a custody order and/or judgment, California has continuing and exclusive jurisdiction over subsequent issues involving custody and visitation. California’s jurisdiction over the modification or enforcement of the order continues until a court determines that the child and the parents no longer reside in California, or a California court determines that the child and one of the parents does not have a significant connection to California, and substantial evidence is no longer available in California concerning the child’s care, protection, training and personal relationships. source
VENUE OVER CUSTODY ISSUES
Assuming the child has been living in California for six months, any California court will have jurisdiction to handle such a case, however, the county in which the action should be brought, i.e. the venue, is where at least one of the parties has resided for at least three months in the case of a divorce, and for an initial petition involving custody without a divorce, the county where the child and a parent or person acting as a parent resides.
Any post judgment issues involving custody should be brought in the county where the underlying order or judgment has been issued, subject to a motion for change of venue in appropriate circumstances. learn more about venue here
If I want to change a custody or visitation order, do I have to go back to the same court that made the order?
The Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA)
Can You Transfer Your Case to Another County or State With Family Law? –
Challenges to Jurisdiction
A jurisdictional challenge is when a respondent makes a submission to challenge the adjudicator’s jurisdiction to determine a dispute. A lack of jurisdiction occurs when a court lacks the authority over a person or the subject matter of a lawsuit, or when the prerequisites for its jurisdiction have not been met.
- A technical defect in the service of the claim form, such as the necessary forms were filled out incorrectly or were incomplete, or that local rules regarding service were not adhered to
- Waiting to challenge jurisdiction until after the trial begins
- Concerns about the time it will take a court to make a decision, the likely costs of litigating in a particular jurisdiction, or whether the procedural rules will end up favoring one party over another
How to Transfer Your Family Law Case to Another County or State
Family law matters can take time to resolve, anywhere between several months to over a year. During that time, your family could go through many changes. What happens in a divorce or child custody case if your spouse or co-parent moves? What if you both move away?
If the venue you originally chose for your family law case is no longer a convenient location, you can petition the court to transfer your case somewhere else. This applies to:
- Divorce, domestic partnership dissolution, or legal separation cases
- Family law cases that determine child custody or child support
- Petitions to change a previously set final divorce order or child support order
The court where you originally filed your case will approve a transfer if:
- Whoever first filed the case chose the wrong venue,
- Continuing with the current location would result in an unfair trial,
- The current venue doesn’t have a judge who is qualified to hear your case,
- You live in a different county and that court is better suited to handle your case,
- The current location is not convenient for the parties or witnesses involved, or
- Both you and your spouse, domestic partner, or co-parent agree to the transfer.
So how do you get a change of venue? The rules are slightly different if you’re moving counties versus states. The laws also change if there are any issues involving child custody or support.
How to File a Change of Venue in California Family Law
“Venue” describes the specific court where your case is filed and ultimately resolved.
U.S. law has extensive jurisdictional rules for what qualifies as a “proper” venue to file a case, depending on the people and facts involved. A knowledgeable family lawyer would be intimately familiar with these rules and can help steer you in the right direction. Your family law attorney can also help with the process of changing the venue of your case, if necessary.
To get a change of venue in a California family law case, you must file a motion for change of venue with the court where your case is currently filed. The court will consider your motion (otherwise known as a “request for order”) along with your supporting declaration.
How to Transfer Your Court Case to Another County in California
Your supporting declaration is the most important part of your motion and should not be overlooked. A well-written declaration can be the reason your transfer request gets approved.
In your supporting declaration, you must tell the court the reasons why your family’s case should be moved to another county within the state.
When deciding whether or not to allow the transfer, California courts will consider:
- The residence of the parties, witnesses, and any children who are involved,
- The physical location of most of the evidence relevant to the case, and
- The general convenience of transferring the case versus keeping it in place.
Once you’ve submitted your motion to the court, you must notify the other party, who will then get a chance to file a response if they oppose your transfer request. In their response, they can include reasons why the change of venue should not be granted.
Once the court receives the transfer motion, it will set a hearing date for both parties to answer any questions by the judge. This process is much simpler if both parties agree to the transfer.
As soon as the judge approves the transfer order, you can continue your case over at the new county where it’s been moved. You will have to pay another first appearance court filing fee.
How Do You Transfer Jurisdiction From One State to Another?
Transferring family law cases between states can get much more complicated.
Divorce and property division laws vary greatly between states. So where you file your case could make a huge impact on what you get out of the proceedings – including how much of the marital estate you keep or how much spousal support you receive. Each state also has residency requirements that you must meet before you can file there.
For example, to file a divorce petition in California, you must be a resident of the state for at least 6 months and the county where you file for 3 months. In contrast, you may be able to move to Washington state and file for divorce the next day.
The first step to transferring a divorce or legal separation between states is to establish residency according to the rules of the state you’re moving to. Only one person needs to meet the residency requirements to file in their chosen state.
However, if your case involves child custody or child support issues, the rules are different.
What About Child Support or Custody Cases?
The Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) is a federal law that governs how almost every state handles child custody and support. If your divorce or legal separation involves questions of child support or custody, UCCJEA rules will apply.
The UCCJEA technically does not allow cases to be transferred from one state to another. The location of your case will depend on your child’s home state – the state where the child and at least one parent have lived for at least 6 months. If the child has lived in multiple states during that time, their home state will be the one with the “strongest ties.”
Although uncommon, your child’s home state could decline jurisdiction if you’re able to convince the court that the location would be an “inconvenient forum.” In making this decision, the court will look at where the child currently lives and the financial situation of the parents. This can happen if a child has moved to a new state within the last 6 months.
Under the UCCJEA, you can also exercise emergency jurisdiction in certain situations – for example, if your child is in danger or if the custodial parent is no longer able to care for them. In these cases, a court outside the child’s home state could take their case. However, emergency custody orders issued by a non-home state are usually temporary.
The stakes are high in family law cases and the law can get complex when you need to change the location of your case. No matter your situation, a family law attorney can help you navigate federal and state laws in order to find a convenient venue. source
Family Law Jurisdiction in California
In Rem Jurisdiction in California
In rem jurisdiction is the authority a California court has over a particular item which is the subject of the lawsuit. A family law case is an in rem proceeding, because the res or the thing is the marriage.
Can the parties involved limit the court’s authority?
In rem jurisdiction can be waived by the parties. The parties can agree in writing to waive in rem jurisdiction allowing a court to make a ruling over property.
In Rem Jurisdiction in California
In rem jurisdiction is the authority a California court has over a particular item which is the subject of the lawsuit. A family law case is an in rem proceeding, because the res or the thing is the marriage.
Can the parties involved limit the court’s authority?
In rem jurisdiction can be waived by the parties. The parties can agree in writing to waive in rem jurisdiction allowing a court to make a ruling over property. source
How to Transfer a Family Law Case to Another California County
If you’re looking to transfer a family law case to another county, you must first understand how California determines the accepted circumstances for this change.
For example, a party may seek to move any of the following types of family law cases to another venue:
• Divorce, legal separation, or annulment
• Petition to change child support order entered in a divorce
• Petition to change a final divorce order
How the Court Determines if a Case Can Transfer
California Code of Civil Procedure Section 397.5 allows a family law case to be moved to another county if the petitioner can prove one of the following situations to the court:
• The petitioner filed the original petition with the wrong court;
• A fair trial would not be possible in the current court;
• The current court is not convenient to the parties and witnesses;
• There is no judge qualified to hear the case in the current court; or
• The respondent lives in a different county and can better achieve justice by changing the court
Also, the court can grant a motion to transfer a family law case to another county if both parties agree to the venue change request. source
Here are some details about family law jurisdiction in California:
- Family Law Courts have jurisdiction over cases involving dissolution of marriage, legal separation, nullity, paternity, domestic violence, child custody, visitation, and support
- The court shall refrain from making an order granting or modifying a custody order on an ex parte basis unless there has been a showing of immediate harm to the child or immediate risk that the child will be removed from the State of California
- A respondent may move to quash the proceeding on various grounds, one of which is the failure to meet the residence requirement of Family Code section 2320(a)
- You must finish discovery 30 days before trial
- If one party fails to appear in child custody court, it could result in an automatic victory for the opposing party
- The California Family Law Courts can only set forth rulings on issues over which they have valid jurisdiction
Personal Jurisdiction
In order for a California court to order a party to pay child support or spousal support, the court must have personal jurisdiction over the paying party. Without personal jurisdiction, a court order for a party to pay support is not binding and is therefore unenforceable. A divorce attorney can establish personal jurisdiction by showing one of the following:
(1) domicile in California,
(2) a voluntary appearance in California, or
(3) minimum contacts.
(1) Domicile in California:In order for a Del Mar divorce lawyer or a party to establish domicile in a state, it must be proven that the person in question resides in that state with a concurrent intent to remain there indefinitely. The “intent to remain” requirement is analyzed by the court considering a number of factors including but not limited to: home ownership in the state; bank accounts in the state; receipt of mail in the state; filing taxes in the state; belonging to local churches; clubs or political organizations; registering to vote in the state; car registration and a state driver’s license; and business affiliations with the state. When domicile is disputed in a case in Del Mar and other , “actions speak louder than words”. Therefore, if a party has satisfied a sufficient number of the above factors, a divorce lawyer will ask the court to determine he or she is domiciled within the state and should be subject to personal jurisdiction there.
(2) Voluntary Appearance in California:
If a respondent is personally served with the Petition for Dissolution while he or she is physically present in the California, a California state court will have personal jurisdiction over the respondent. In one seminal California case, Husband lived in New Jersey and Wife lived in California with the children. While Husband was visiting California on business and to visit the children, Wife asked her divorce attorney to serve Husband with the Petition for Dissolution. Husband contested California’s ability to exercise personal jurisdiction and the court determined that physical presence in the state when served was sufficient to satisfy Husband’s due process rights under the U.S. Constitution.
A party’s “minimum contacts” with California which are related to the divorce proceeding may be a sufficient basis for California to exercise personal jurisdiction over the party. First, the court must find “purposeful availment”. Purposeful availment means an act by the spouse which purposefully availed him or her to the privilege of conducting activities in California. Divorce lawyers are aware that California has determined that accepting benefits of a California court-appointed settlement administrator constituted purposeful availment. Second, the court must find “nexus”. Nexus is a sufficient relationship between the spouse and California such that it is reasonable and fair to require him or her to litigate in California. The requirements of minimum contacts are much broader and up for interpretation than those for voluntary appearance or domicile, and can be an issue that needs to be addressed in divorce in Del Mar. source
Court system
Jurisdiction over all proceedings lies with the Superior Court and all family law proceedings must be commenced in the Superior Court (section 200, FC; Marriage of Lackey (1983) 143 Cal. App. 3d 698)). There is no separate family court in California. All proceedings are public proceedings, except in some very limited circumstances. California must have jurisdiction over the subject matter raised by the pleadings (marriage res) and the parties (personal jurisdiction) (sections 200 and 2010, FC).
Children
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The Federal Parental Kidnapping Prevention Act (FPKPA).
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The Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA).
Domicile, nationality and habitual residence
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Physical presence in the jurisdiction.
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The intent to remain in the jurisdiction indefinitely.
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Voting registration.
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Driver’s licence.
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Tax return filings.
Procedure
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Comity (that is, the informal and mutual recognition of other jurisdictions).
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Prevention of multiple and vexatious litigation.
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Judicial economy.
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The interests of the forum.
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The convenience of the parties.
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It must stay its proceedings and communicate with the other court.
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It defers to the other jurisdiction’s determination as to which court is the more appropriate forum. If that state determines it is the more appropriate forum, the California court dismisses the custody proceedings.
Factors
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Determining the child’s home state at the time of the commencement of the proceeding.
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Whether any other forum has properly assumed jurisdiction.
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Whether there are any other factors that would warrant another forum assuming jurisdiction, for the convenience of the parties and court.
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