Custody Jurisdiction Basics – Bakersfield Paralegal

Custody Jurisdiction Basics – Where will my case be heard?

Family Court

Family Code §3022 holds that, “The court may, during the pendency of a proceeding or at any time thereafter, make an order for the custody of a child during minority that seems necessary or proper.”

Custody and visitation proceedings under the Family Code are governed by Family Code §§3000 et seq. These statutes apply to the following cases (Fam C §3021):

Dissolution of marriage, nullity of marriage, and legal separation: Proceedings related to the end of a marriage or legal separation.
Exclusive custody actions under Family Code §3120: A spouse can file for exclusive custody of the children without filing for dissolution or legal separation. During these proceedings, the court can issue orders regarding the support, care, custody, education, and control of the children. These orders can be modified or terminated based on the parents’ rights and the children’s best interests.
Domestic Violence Prevention Act (DVPA) cases (Fam C §§6200 et seq): Custody or visitation determinations in domestic violence cases.
Uniform Parentage Act (UPA) cases (Fam C §§7600 et seq): Custody or visitation determinations in parentage actions.
Local child support agency actions (Fam C §17404): Custody or visitation determinations in actions brought by the local child support agency.

Juvenile Court Priority

When a minor is declared a dependent of the juvenile court under Welfare & Institutions Code §§300 et seq, that court has exclusive jurisdiction over custody and visitation matters. Any order issued by the juvenile court remains in effect even after the court’s jurisdiction ends. Such an order can only be modified in family court if there has been a significant change in circumstances and if the modification is in the child’s best interest (Welfare & Institutions Code §302(d)).

The juvenile court holds overriding jurisdiction in dependency cases, even if there is an existing custody order from a family court in a marital action. This remains true regardless of whether the same issues are being considered in both courts. In the case of In re Desiree B. (1992) 8 Cal App 4th 286, 291-293, it was established that the juvenile court can reconsider custody issues already decided in family court.

The Desiree court explained that in a dependency proceeding, a juvenile court is not barred from reconsidering issues previously litigated in a family law proceeding. Despite some or all facts of abuse or neglect being the same in both proceedings, the issues before the family law court and the juvenile court can never be identical. This is because of the significant differences in the purposes and operations of the two courts and the state’s primary concern for the protection of children.

Similarly, In re Travis C. (1991) 233 Cal App 3rd 492, 499-503, the court confirmed that the juvenile court has jurisdiction over a petition with the same factual allegations, even if a hearing on those allegations is pending in family law court. The juvenile court’s authority to protect children is an exception to the rule that the first court to take jurisdiction among courts of concurrent jurisdiction has exclusive jurisdiction.

Quoting Dupes v. Superior Court (1917) 176 Cal. 440, the Travis court explained, “[t]he mere fact that a litigation is pending between the parents and that an order regarding the custody of the children has been made therein does not take away the power of the state nor prevent the exercise of that power under the Juvenile Court Law.” The priority of the juvenile court is “the single exception to the general rule that among courts of concurrent jurisdiction, that which takes jurisdiction first in time has exclusive jurisdiction.”

Tribal Jurisdiction

Indian tribes recognized by the Department of the Interior have exclusive jurisdiction over certain child custody proceedings involving Indian children residing or domiciled within their reservation under the Indian Child Welfare Act (ICWA) (25 USC §§1901 et seq), except where federal law has otherwise vested the state court with jurisdiction over such proceedings (25 USC §1911(a)).

In California, the terms of Public Law 280 (Act of August 15, 1953, ch 505, 67 Stat 588-590, now codified as 18 USC §1162, 28 USC §1360, and other sections in Titles 18, 25, and 28) provide California courts with concurrent jurisdiction over child welfare matters involving Indian children residing on most reservations in the state (Doe v. Mann (9th Cir. 2005) 415 F. 3rd 1038, 1061). The Washoe Tribe of California and Nevada is currently the only tribe in California with exclusive jurisdiction over child welfare matters involving Indian children who reside on the tribe’s reservations. However, Indian children from exclusive jurisdiction tribes may be temporarily located in California. Furthermore, a tribe retains exclusive jurisdiction over a child who is already a ward of a tribal court, even if that child is no longer a resident of the reservation (25 USC §1911(a); Welfare & Institutions Code §305.5(a)).

The ICWA does not apply to child custody disputes resulting from dissolution or legal separation proceedings as long as custody is awarded to one of the parents (25 USC §1903). Therefore, the ICWA’s impact on custody proceedings is limited. However, since tribes are treated as “states” under the UCCJEA, and the public acts, records, and judicial proceedings of Indian tribes are entitled to full faith and credit in state court (25 USC §1911(d)), it is important to determine if there are any existing orders or proceedings in a tribal court.

A custody proceeding involving an Indian child generally follows the same procedures as any child custody proceeding, but under the ICWA, there are additional substantive and procedural requirements. The court must recognize that an Indian child has an interest in maintaining a connection with their tribe (Welfare & Institutions Code §224(a)(2)). Furthermore, the court must consider not only the child’s interests but also the Indian tribe’s interests and legal rights (In re Crystal K. (1990) 226 Cal App 3rd 655, 661). Under the ICWA, a child’s tribe has rights to protect its interests that are independent of the rights of the child and the child’s parents (In re Kahlen W. (1991) 233 Cal App 3rd 1414, 1425).

Disputes Between State Jurisdictions

The Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) (Family Code §§3400 et seq.) determines the appropriate subject matter jurisdiction between states for nearly all custody or visitation disputes (Family Code §3402(c)-(d)).

A federally recognized Indian tribe is considered a “state” for UCCJEA purposes. California courts must comply with UCCJEA requirements when making initial or modified custody or visitation determinations. If California is not the appropriate court under UCCJEA guidelines, it lacks jurisdiction to issue custody orders, except for emergency orders (Family Code §§3421-3424).

However, custody proceedings involving an Indian child are not subject to the UCCJEA to the extent that they are governed by the Indian Child Welfare Act (ICWA).

The UCCJA bases jurisdiction on a child’s close affiliation with a state, establishing four jurisdictional grounds:

Home State: This is reserved for the state in which the child has lived for at least six months preceding the commencement of the action.
Significant Connection: This exists when a state has substantial evidence about a child due to the child’s significant connections to that state.
Emergency: This governs situations such as abandonment or abuse that require immediate protective action.
Vacuum: This applies when no other jurisdictional basis exists.

Except in emergency cases, the UCCJA eliminated a child’s physical presence in a state as grounds for exercising jurisdiction. Consequently, a court could no longer base jurisdiction solely on a child’s presence in the state, nor would a child’s absence from the state necessarily deprive the court of jurisdiction. Under the UCCJA’s extended home state rule, a left-behind parent could petition for custody in the child’s home state even after an abduction. Additionally, the UCCJA required states to enforce and not modify valid custody and visitation orders made by other states.

The federal Parental Kidnapping Prevention Act (PKPA) (28 USC §1738A) should also be referenced for jurisdictional requirements in relevant cases. The PKPA was enacted to ensure nationwide enforcement of custody orders made in accordance with the UCCJEA (Marriage of Zierenberg (1992) 11 Cal App 4th 1436, 1441-1442). While the PKPA has provisions similar to the UCCJEA, they are not identical in all respects. In cases of conflict, the PKPA provisions take precedence (Marriage of Zierenberg, supra).

To close existing gaps and bring greater uniformity to interstate child custody practices, Congress enacted the PKPA in 1980, which requires state courts to:

Enforce and not modify (i.e., grant full faith and credit to) custody and visitation determinations made by other states consistently with the PKPA, unless the original state no longer has or has declined to exercise jurisdiction.
Defer to the “exclusive, continuing jurisdiction” of the decree state as long as that state exercised jurisdiction consistently with the PKPA when it made its determination, has jurisdiction under its own law, and remains the residence of the child or any contestant. (“Contestant” is defined as a person, including a parent, who claims a right to custody or visitation rights with respect to a child.)
Refrain from exercising jurisdiction while another state is exercising jurisdiction over a matter consistently with the PKPA.
Ensure reasonable notice and opportunity to be heard for the following persons: contestants, any parent whose parental rights have not been terminated, and any person who has physical custody of the child.