There are many aspects of family law that require a firm understanding a legal jurisdiction. Jurisdiction is a court’s authority to hear and make rulings on cases regarding both parties and matters.
At the law offices of John S. Yohanan, we are committed to providing trustworthy and knowledgeable legal representation. Whether your case is simple or complex, we can help secure the most favourable outcome possible in child custody or other family law issues.
Within family law, California and San Jose courts will rule on orders concerning future support, divorce, and child custody and visitation. These ruling most likely create future obligations for parties involved. However, Americans have long been a mobile culture, and the parties are likely to move to other states or jurisdiction. This produces jurisdictional issues in family law.
Statues and legal precedents have been created to provide guidance for courts determining jurisdiction complications. These provisions can be complicated and require a level of experience and understanding. For example, if parent wants to modify a custody order, and the other parent lives in different states, or even different countries, things can get problematic very quickly. In cases of child custody, the Uniform Child Custody Jurisdiction and Enforcement Act (“UCCJEA”) helps courts determine with jurisdictional issues.
In 1968, the Uniform Law Commissioners authored the Uniform Child Custody Jurisdiction Act (“UCCJA”) along with the Parental Kidnapping Prevention Act (“PKPA”). By 1981, every state had adopted the UCCJA and the PKPA. These acts came about because of the common practice by non-custodial parents kidnapping their children and taking them across state lines to a court that would reverse an unfavorable custody arrangement.
The UCCJEA was drafted in 1997 for the sake of replacing the UCCJA in order to correct inconsistencies with the PKPA. The UCCJEA lays out guidelines for judges to determine which state has the more appropriate jurisdiction. California adopted UCCJEA in 1999.
A recent appellate case deals with the UCCJEA’s guidance concerning emergency jurisdiction as well as jurisdiction between the United States and Mexico.
The Facts Of In re A.M. et al.
In re A.M. et al. (filed on February 13, 2014), a mother and father of two children, who were living in Mexico, were having financial difficulties. They decided that the mother would smuggle drugs into the United States using their two children to avert detection.
The mother was arrested while driving across the border, and at the detention hearing, the court assumed emergency jurisdiction under the UCCJEA. The court placed the children with their maternal great-aunt in San Diego. While awaiting her sentencing hearing the mother visited the children daily. The father remained in Mexico but called the children daily.
The court declared the children dependants of the court concluding that if the children were sent to Mexico they would be in danger based upon the fact that the parents used them as pawns in a dangerous drug smuggling conspiracy. The mother and father appealed, arguing that the court erred in assuming emergency jurisdiction over the children.
Appellate Court’s Ruling
Under California’s adoption of the UCCJEA, Cal. Fam. Code § 3000 – 3465, a court must treat a foreign country as if it were another state in the United States. California may make a child custody determination if:
- California is the child’s “home state,” meaning the state in which a child lived with one parent for at least six consecutive months immediately before the child custody proceeding;
- A court of the child’s home state has declined to exercise jurisdiction on the grounds that California is the more appropriate forum;
- Or, no other state has jurisdiction under the above tests.
The UCCJA provides and exception to these guidelines when an emergency exists and the child is at immediate risk of harm. The emergency exception is temporary and should last only as long as the underlying risk.
In the current case, the appellate court ruled that the trial court exercised proper emergency jurisdiction since the parents had placed the children in a dangerous drug smuggling scheme, which could have led to bodily injury or death. Also, the father had admitted to using drugs and continued to remain in Mexico in order to avoid justice.
However, the court further ruled that the lower court committed an error by failing to contact Mexican authorities. The court remanded the case for the limited purpose of contacting the Mexican authorities to regarding jurisdiction. If the Mexican authorities do not assume jurisdiction, the court’s dependency orders would remain in effect. Yet, if the Mexican authorities assume jurisdiction, the dependency orders will be voided and jurisdiction will be given to Mexico as long as it is in accordance with the UCCJEA.
What You Should Do
Jurisdictional issues in family law come up frequently. If you have a child custody and visitation issue that might involve parties from different states or countries, you are encouraged to contact an experienced family law attorney with knowledge litigating family matters involving jurisdiction issues.
San Jose Divorce Lawyer, John S. Yohanan, has extensive experience handling child custody and visitation issues involving jurisdiction. If you want a family law lawyer with more than 30 years of experience on your side, call our office at (408) 297-0700 or visit our contact page.
Child Custody Jurisdiction and Enforcement Act Summary, 2014, The National Conference of Commissioners on Uniform State Laws
Interstate Custody: Understanding the UCCJA, the UCCJEA, and the PKPA Jan. 30, 2008, PBworks
More Blog Entries:
California Parents Enforcing Child Custody Orders After the Child Has Reached the Age of Eighteen — Williams v. Cavers, Mar. 31, 2014, San Jose Family Law Blog
New Jersey Teen Sues Parents for Support and College Expenses – How California Emancipation Laws Might Apply, Mar. 14, 2014, San Jose Family Law Blog