If I want to change a custody or visitation order, do I have to go back to the same court that made the order?

Change Of Venue California Family Law Code Of Civil Procedure 397.5

Family Law Code of Civil Procedure 397.5 is a pretty specific code section that says;
In any proceeding for dissolution or nullity of marriage or legal separation of the parties under the Family Code, where it appears that both petitioner and respondent have moved from the county rendering the order, the court may, when the ends of justice and the convenience of the parties would be promoted by the change, order that the proceedings be transferred to the county of residence of either party. source

A court may, in its discretion, choose to refrain from exercising its jurisdiction to hear a case if the case may be more appropriately tried elsewhere. (Stangvik v. Shiley Inc. (1991) 54 Cal.3d 744).

On a motion for forum non conveniens 

“Forum non conveniens” is a Latin phrase that means “an inconvenient forum”. It’s a common law doctrine that allows a court to decline to exercise its jurisdiction when another court or forum may more conveniently hear a case. The doctrine allows a court to dismiss a case if it believes that the case would be better heard in another court. For example, a court might dismiss a lawsuit arising from an accident if the plaintiff files the complaint in their home state, but the witnesses and doctors are in the state where the accident occurred.

California codified this principle, known as forum non conveniens, in Code of Civil Procedure section 410.30.” Code of Civil Procedure section 410.30, subdivision (a),(2) provides as follows: “When a court upon motion of a party or its own motion finds that in the interest of substantial justice an action should be heard in a forum outside this state, the court shall stay or dismiss the action in whole or in part on any conditions that may by just.“ Courts sometimes reframe the question as whether the chosen forum is “seriously” inconvenient. The party seeking change venue has the burden of proof.

When a motion to change venue is made on the grounds of “convenience of witnesses and the ends of justice” pursuant to Code Civ. Proc. §396b, the party tendering that issue bears the burden of showing through affidavits, declarations or other admissible evidence, both the reasons it would be inconvenient for witnesses to attend, and the materiality of their anticipated testimony. (Flanagan v. Flanagan (1959) 175 Cal.App.2d 641, 643, 346 P.2d 418.)

The declarations must be competent evidence, i.e. should not consist solely of hearsay, generalities and conclusions. (Lieppman v. Lieber (1986) 180 Cal.App.3d 914, 919, 225 Cal.Rptr. 845). 

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.

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.

CHANGING VENUE AT THE BEGINNING OF THE DIVORCE OR OTHER CUSTODY PROCEEDING

Assuming jurisdiction and venue is otherwise appropriate, a party may ask the court to change venue “when the convenience of witnesses and the ends of justice would be promoted by the change.“ [California Code of Civil Procedure section 397 subdivision [c], & subdivision (e).]  Note that it is the convenience of the witnesses, and not the convenience of the parties. [Although it could be argued that the convenience of the party would fall under the ends of justice rationale].

Factors considered by the court include where evidence and witnesses concerning the child’s care, protection, training and personal relationships can be found, where the children and parties reside and the general convenience of keeping or changing venue. Courts have broad discretion in making decisions around changing venue [assuming that venue is not otherwise prohibited by statute], and they are largely fact driven determinations, dependent on the particular circumstances of each case.

Typically, the motion for a change of venue must be brought early in the action, and in any and event, “within a reasonable time” after commencement of the action, or from when the reasons for the change of venue become apparent.

CHANGING VENUE AFTER THE DIVORCE JUDGMENT HAS BEEN ISSUED.

Change of venue after a divorce judgment has been issued is appropriate when both parties have moved from the county that issued the divorce judgment, “when the ends of justice and the convenience of the parties would be promoted by the change.” [California Code of Civil Procedure section 397.5] Note in this situation it is the convenience of the parties, and not just witnesses.

It is an open question whether a post judgment motion for change of venue would be appropriate when only one of the parties has moved out of the county where the divorce judgment was entered.

It certainly could be argued that since the statute dealing with a post-judgment change of venue covers situations where both parties have moved out of the county, it is implied that it is not appropriate to change the venue where only one party has moved out of the county because the legislature could have said only one party need have moved if that’s they intended to allow a change of venue in either situation.

On the other hand, if the party who has moved out of County has sole or primary custody, it is arguable that a change of venue might be warranted under the general statute dealing with the grounds for a change of venue [California Code of Civil Procedure section 397], assuming those grounds, such as the convenience of the witnesses and the ends of justice, support such a move.

Since the courts have broad discretion in deciding change of venue motions, it is likely the court’s decision either way would be upheld if challenged on appeal. source

if you are failing to get the rights you deserve and change of venue is denied and all other avenues are exhausted try looking into

CHANGE OF VENUE  [CCP §396b] – Change of Venue Form

or download the editable word file .doc here motionchangevenue

forum non conveniens

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Forum non conveniens refers to a court’s discretionary power to decline to exercise its jurisdiction where another court, or forum, may more conveniently hear a case. Dismissing a case on forum non conveniens grounds is not a bar for res judicata purposes and, therefore, does not prevent a plaintiff from re-filing their case in the more appropriate forum. This doctrine may be invoked by either the defendant, or sua sponte by the court.

Even if a plaintiff brings a case in an inconvenient forum, a court will not grant a forum non conveniens dismissal unless there is another forum that could hear the case and potentially recover damages. Additionally, courts will not grant a forum non conveniens dismissal where the alternative forum’s judicial system is grossly inadequate. For example, an American court would not grant a forum non conveniens dismissal where the alternative forum was Cuba.

Courts typically use a 2-part test to determine whether they will grant a defendant’s forum non conveniens motion. The first part is a balancing test of both private and public factors, and the second part looks at what adequate alternative courts are available.

• Balancing Test

  • Private Factors
    • Ease of access to evidence
    • Interest of the two parties in their connections with the respective forums
    • The plaintiff’s chosen court would be burdensome to the defendant
    • If a court finds this factor to be true, then that is often sufficient to dismiss the case and accept a forum non conveniens claim
    • Ease of obtaining witnesses
    • Enforceability of judgment
  • Public Factors
    • Whether the trial would involve multiple sets of laws, thus potentially confusing a jury
    • Having juries who may have a connection to the case
    • Local interest in having local interests heard at home
    • Having the trial in a place where state laws govern

• Adequate Alternative Inquiry Test

  • The defendant must offer an alternate court that is able to hear the case
  • The alternate court must have the ability to provide a remedy to the plaintiff

A court will typically only invoke forum non conveniens sua sponte if it meets a 2-step test:

1. The court is a seriously inappropriate forum.
2. There is a substantially more appropriate court that is available for the plaintiff’s claim.

Sometimes, courts attach conditions to forum non conveniens dismissals. For example, the court might require the defendant to waive defenses that would prevent the plaintiff from re-filing the suit in the alternative forum. Alternatively, a court might dismiss the case in favor of a foreign court, but only on the condition that the defendant allow discovery.

On appeal, forum non conveniens decisions are evaluated using an abuse of discretion standard.

The Supreme Court considered forum non conveniens in Piper Aircraft Co. v. Reyno, 454 U.S. 235 (1981). In that case, the Court held that so long as there was a remedy available in the alternate forum, it did not matter if the remedy was clearly insufficient. However, lower courts do not strictly follow this rule. Instead, they usually consider the adequacy of the alternative forum’s remedy as another factor to be balanced when deciding whether or not to grant a forum non conveniens dismissal.

The Supreme Court has heard two cases on the issue of forum non conveniens in recent years:

In Sinochem International Co. Ltd. v. Malaysia International Shipping Corp, the Supreme Court held that that a federal court may hear and pass a ruling on a forum non conveniens motion even if that court does not necessarily have subject-matter jurisdiction or personal jurisdiction over the case in front of the court. The Court decided that while courts typically need to consider personal jurisdiction and subject-matter jurisdiction before hearing a case on the merits, this procedure does not necessarily apply when considering non merits issues.

The second case was Atlantic Marine Construction Co. v. U.S. District Court for the Western District of Texas, which determined that courts should use 28 U.S.C. 1404(a), which allows for the transfer of cases between jurisdiction, for the purposes of granting a forum non conveniens motion. source

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