Articles Posted in Family Court Jurisdiction

In California, a divorce is called a dissolution of marriage.  One of the most important things that a servicemember needs to know is where they can file their divorce.  Military members are unique because different jurisdiction may be able to hear their case.  However, there are requirements that may need to be met before a state may exercise their jurisdiction.

If you are stationed in California and are unsure where to file your divorce, you may want to speak with a qualified family law attorney; however, the following explains the different jurisdiction in which you may be able to file.  mil-disso-300x169

     1)     A service member may file for divorce in their state of domicile.

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 The following questions have arisen during the COVID-19 (Coronavirus) Pandemic regarding Child Custody and Visitation and San Diego Presiding Judge Alksne has provided the following answers.

Q:  Does the COVID-19 (Coronavirus) Pandemic and related orders of the Governor, to reduce the spread of the virus, cause a child custody and visitation order to be modified or altered?

A:  All child custody and visitation orders from the court remain in full force and effect until and unless modified by the court.

There are many things you have to consider when you decide that it is necessary to go to court regarding the custody of your child. Aside from the many factual elements that may go into your case, there are some very basic legal issues that could make or break your effort to get your case heard and decided in your favor. One such issue is jurisdiction because, if the court where you file your case doesn’t have it, the judge cannot give you the relief you’re seeking, no matter how strong the factual side of your case is. In one case originating from San Bernardino County, the Fourth District Court of Appeal ruled that a father could pursue custody in the California courts, since this state qualified as his child’s “home” state, and, as a result, the court here did have jurisdiction to rule on his petition.

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One of the lesser-known legal hurdles in a family law case concerns the appropriate jurisdiction within which to bring your claims. Whether it is an action for divorce, child custody, spousal support, or any other related matter, parties must ensure that the court has jurisdiction to hear and decide the case. In considering the question of jurisdiction, courts often look at whether one location is a more “convenient forum” than another. Before couples are able to address the substance of their family law case, they must establish the appropriate jurisdiction. In order to move your case along as efficiently as possible, it’s important to contact a local San Diego family law lawyer who would be able to quickly identify the most suitable court for your case.

Issues concerning the appropriate forum often arise when the parties live in two different states. Section 3427 of the California Family Code provides that a court that has jurisdiction to make a child custody determination may decline to exercise its jurisdiction at any time if it determines that it is an inconvenient forum under the circumstances and that a court of another state is a more appropriate forum.

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Divorce by its very nature positions spouses against each other. No matter how long or short the marriage was, as soon as the couple decides to separate, they become adversaries. That is, they are necessarily pursuing separate and individual interests, with the likely exception of the best interests of their children. Because of these unfortunate but real dynamics, parties are typically encouraged to hire their own family law attorneys to represent their separate legal and financial interests. Throughout a divorce proceeding, a couple may dispute any number of issues, including any entitlement to spousal support, the division of property, and even a court’s personal or subject matter jurisdiction over a party or the matter in general. To ensure that your rights are preserved and legally protected, you may wish to contact an experienced San Diego family lawyer as early as possible in the proceedings.

In a recent California divorce case, the husband appealed from a default judgment that required him to pay attorney fees and spousal support to his former wife. A default judgment occurs when the “responding” party fails to answer or “appear” in the case at a date specified in the pleadings. Here, the parties were married in 1978 and have two adult children. In 1993, the family moved to Chile, where the wife was born. The couple separated in 1995, and the wife filed a dissolution petition in 1996 in a California court. Although the court granted the divorce, the wife successfully moved to vacate the judgment.

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Couples who separate and are seeking to divorce often do not agree on many of the myriad items to be resolved at the end of their relationship. One of the most fraught issues concerns the court’s custody determination:  the ultimate physical and legal custody arrangement. Such a determination will likely affect the amount of child support awarded as well. California courts apply the “best interests of the child” standard when allocating custody and visitation between the parents. Since this issue, and many others, can dramatically affect your family’s future, it is extremely important to protect your interests as well as your child’s. An experienced San Diego family law attorney would be able to guide you through the often complicated process while preserving your family’s legal rights.

Some child custody disputes involve a parent who wishes to relocate with the child to another state or country. And in some cases, a parent may try to take a child to another country without the proper authority or approval. The Hague Convention on the Civil Aspects of International Child Abduction (“the Hague Convention”) provides a contracting nation (a signatory to the Convention) with the authority to have a child returned to his or her country of “habitual residence” if wrongfully removed to – or retained in – the contracting state. Under the Hague Convention, state and federal courts in the United States have concurrent jurisdiction to decide such custody cases.

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In many divorce cases, the separating couple anticipates and appreciates the benefits of reaching a mutually agreeable marital settlement agreement (“MSA” or “Agreement”). The terms of the agreement will vary depending on the circumstances, but most often they will cover issues such as the division of community property, child and/or spousal support, child custody, and other relevant matters. Essentially, the MSA is a contract and is treated as such by the family court. In order to ensure that the Agreement contains provisions that will protect your financial rights at the conclusion of your marriage, and also hold up in court, you are encouraged to contact an experienced family law attorney as early as possible in the process.

In a recent California case, Madrid v. Kolbisen, et al., the parties were divorced in 2011. Their marital settlement agreement contained a provision indicating that each party would continue to retain a half-interest in their family business after the divorce. The MSA also granted the family court “continuing jurisdiction” to monitor the management of property jointly owned by the parties, as well as to “divide or order the sale” of the property. Under California law generally, in a proceeding for a dissolution of marriage, the court has jurisdiction to inquire into and render any judgment and make orders concerning many issues, such as the settlement of the property rights of the parties.

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Due to the nature of a divorce proceeding, separating spouses often fail to agree on some of the major issues to be resolved, such as spousal support, the division of marital property, and any child custody and support matters. In such cases, courts have the authority to step in and issue orders to address and determine these critical issues. And depending on the circumstances, courts retain that authority even after the judgment of divorce is rendered. To understand your rights with respect to the court’s authority over your case, from the filing of a complaint for divorce to any post-judgment relief, you are encouraged to speak with an experienced family law attorney from the local San Diego area.

Section 2010 of the California Family Code provides courts with the jurisdiction to award child support, among other things. In a recent case, the court cited this provision as a basis for extending “continuing jurisdiction” to determine issues of adult child support. Here, the parties were divorced in 1998 when their son was 11 years old. The judgment of divorce included the parties’ marital settlement agreement (“MSA”), which granted the mother physical custody of their child and required the father to pay child support each month until the earliest of his graduation from high school, when he reaches 19, or certain other events. When the child support obligation under the MSA expired, the mother failed to assert a formal request to continue those payments.
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Laws governing marriage and divorce vary from state to state. In California, if one spouse decides to file for divorce, the court has the power to end the marriage, even if the other spouse does not agree or want to get divorced. Accordingly, the party served with divorce papers may respond in several ways: 1) by doing nothing or failing to respond, which is considered a “true default” and means that the spouse filing the petition will get everything he or she is asking for; 2) by doing nothing, but with an agreement setting forth the terms of the divorce; 3) filing a response and reaching an agreement, also known as an “uncontested” divorce; or 4) filing a response, but disagreeing with the spouse’s requests, or a “contested” divorce. Whether you are filing for divorce or responding to a petition, you are strongly encouraged to contact a local San Diego family law attorney as early as possible. The form of the petition and response can significantly affect your rights throughout the proceedings.

A recent California case illustrates some of the complications that can arise when one spouse fails to respond to a divorce petition. Here, the husband filed for divorce in October 2011, seeking joint custody of the couple’s two children. The wife did not file a response, although she was present in the courtroom during the proceeding, and the court granted the divorce via a default judgment in February 2013. As part of the dissolution of marriage, the court also granted the couple joint legal custody and gave each parent approximately 50% of physical custody.
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Child custody disputes tend to bring out intense emotions in both parents. This can be attributed to the notion that each party typically wants to spend as much time as possible with their children after the divorce. And while it is important to sort through the most practical and visible aspects of a custody arrangement, such as who the child lives with and which parent is responsible for making significant decisions in the child’s life, there are some less obvious matters that often must first be addressed. One underlying, yet important issue concerns a court’s authority in the first instance, to make custody determinations affecting the parties. There are state laws that specifically govern child custody disputes. It is important to know how these laws apply to your divorce or custody case. In order to protect your family’s rights, you are encouraged to contact an experienced family lawyer from the local San Diego area as soon as possible.

California law sets forth the conditions under which a court may exercise jurisdiction over a family custody dispute. The Uniform Child Custody Jurisdiction and Enforcement Act is codified at Section 3421 of the California Family Code. The law addresses, among other things, a court’s authority to “make an initial child custody determination.” The law may invoked when the parents – individually – seek a custody determination from two courts in two different states.
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