For the vast majority of child custody cases in California, jurisdiction is quite simple: you file your case where the child has lived. But, take it from me, it’s not always that simple. How long has the child lived here? Did you get custody orders in another state before moving to California? Has the child left California with the other parent?
In part one of our series on Child Custody Jurisdiction in California Family Court, we discussed what “jurisdiction” means, why it is important, and how there are four traditional ways in which a California Family Court assumes jurisdiction over child custody.
In part two of our series, we discussed the first, and most common, method for determining jurisdiction under the law: so-called “Home State Jurisdiction.”
Here, we will discuss the second most common way of establishing Child Custody Jurisdiction in California, and it’s what we’ll call “New State Jurisdiction.” I call it that because it typically comes into play when your child or children lived somewhere previously, no child custody order was ever made, and the child has recently moved to California.
New State Jurisdiction: The Second Kind of Child Custody Jurisdiction
New State Jurisdiction is embodied in Family Code section 3421(a)(2)(A) and (B). Under this law, California has jurisdiction to make an initial child custody determination if:
(1) no other state qualifies as the “Home State”, AND both of the following are true: (A) the child and the child’s parents, or the child and at least one parent or a person acting as a parent, have a significant connection with this state other than mere physical presence, AND (B) Substantial evidence is available in this state concerning the child’s care, protection, training, and personal relationships.
(2) a court of the home state of the child has declined to exercise jurisdiction on the grounds that this state is the more appropriate forum, AND both of the following are true: (A) the child and the child’s parents, or the child and at least one parent or a person acting as a parent, have a significant connection with this state other than mere physical presence, AND (B) substantial evidence is available in this state concerning the child’s care, protection, training, and personal relationships.
I’ve emphasized the conjunctions in the statute because we lawyers find it immensely helpful to understand statutory law (laws passed by the legislature). Whenever you read the law, I recommend circling the conjunctions to help you do the same.
Reading the law this way, it becomes clear that there are two ways in which you can secure New State Jurisdiction.
1. No Other State Qualifies as the Home State for Child Custody Jurisdiction
We learned in part two of this series that, under Family Code section 3402(g), a “Home State” is one in which the child has “lived with a parent or a person acting as a parent for at least six consecutive months immediately before the commencement of a child custody proceeding.”
So, if your family lived in Florida for the last two years, and then moved to California three months ago, Florida no longer qualifies as the home state. Three months is too long to qualify as immediately before the commencement of the child custody proceeding.
Therefore, if the child has not lived with a parent or person acting as a parent (such as a guardian) in another state for the last six months, then you should probably be looking at New State Jurisdiction as the basis for hearing your case.
2. The Home State Declines Child Custody Jurisdiction
Now let’s say you moved from Florida last week, after living there with your family for the last two years. For one reason or another, the family court in Florida declines jurisdiction. This could happen for a wide variety of reasons.
One common scenario is that the family moves to California and one party files for divorce. At this time, no one lives in Florida and the couple owns a lot of property in California. In that case, California would almost certainly have jurisdiction over the divorce. The court in Florida may determine that it makes little sense to resolve the custody matter in Florida when no one lives there and all the property to be divided sits in another state.
There could be a host of other reasons that Florida declines jurisdiction. The important thing to keep in mind is that, if it or another state does decline jurisdiction, a provision of California family law permits the court to hear the case here.
Whether or not you trigger New State Jurisdiction because no other state qualifies as a Home State, or because the Home State declines jurisdiction, you still have to prove two more things: (A) the child and the child’s parents, or the child and at least one parent or a person acting as a parent, have a significant connection with this state other than mere physical presence, AND (B) substantial evidence is available in this state concerning the child’s care, protection, training, and personal relationships.
Significant Connections with the State Beyond Mere Presence
First, you must show that the child and at least one parent or a person acting as a parent, have a significant connection with this state other than mere physical presence.
In other words, there needs to be a reason the child and one of the parents are here other than the fact that they’re physically sitting in a California family court room. This is to prevent what is often referred to as “forum shopping.”
Forum shopping happens when one party chooses to have his or her case heard in a court simply because there is a belief that the forum will render a favorable ruling. So, if you know there is no home state, you could “shop” your case to a state where you feel like the law suits you best. Forum shopping is universally discouraged in all federal and state courts.
What are some significant connections? Owning property here, having family connections here, friends here, being employed here, etc. Remember that you must demonstrate these connections for one of the parents and the child.
Substantial Evidence Concerning the Child
So, you’ve established that no state qualifies as a home state, or that any state that does has declined jurisdiction. You’ve also proven that your child and at least one parent has significant connections to California beyond being merely physically present. You’ve got one more thing to prove: that substantial evidence is available in this state concerning the child’s care, protection, training, and personal relationships.
What is this evidence? Examples include the child going to school here, participating in extra-curricular activities here, attending daycare here, being treated by doctors here, dentists here, and establishing friendships here. There are likely many more examples.
Establishing jurisdiction under this law is not easy. It requires not just a proficient understanding of California family law, but the ability to pinpoint helpful facts and apply those facts to this law. This is where a family law attorney would be most helpful.