San Diego Divorce Lawyer Blog
There are many aspects of a child custody case that parties may be unaware of, such as questions concerning a court’s initial jurisdiction over the matter. For certain disputes, courts may make a determination under the Uniform Child Custody Jurisdiction and Enforcement Act (the “UCCJEA”) to be sure that it has jurisdiction to hear the case. The UCCJEA is implemented in California through the state Family Code, sections 3400-3412. These are complicated provisions, often requiring legal interpretation and analysis. Parents who are confronting child custody matters are encouraged to contact an experienced family law attorney who is familiar with the local San Diego court procedures.
In a recent court decision, the California court of appeals was asked to review a lower court’s decision (under the UCCJEA) to assert subject matter jurisdiction over a matter, in which the court removed a child from parental custody. Here, a mother and her six-year-old son crossed the border from Mexico to San Diego, California. Although the mother was born and raised in the state of Washington, she had since moved to Mexico and stated that she was currently homeless and a drug user. Once she arrived in the United States, the mother surrendered to law enforcement authorities due to an outstanding arrest warrant for a drug-related crime.
At first, the mother indicated that she had no relatives either in Mexico or the U.S. who could care for her son. She was taken to a detention facility and her son was brought to the Polinsky Children’s Center. After the son told his social worker that his mother and a man sold beer, smoked drugs and fought, the San Diego County Health and Human Services Agency filed a petition in juvenile court alleging that the child was at substantial risk of harm. The court held a detention hearing, at which the mother argued that under the UCCJEA, Mexico was the child’s home state and therefore, the court lacked subject matter jurisdiction. Under the UCCJEA, the court would only have jurisdiction if it had “temporary emergency jurisdiction.”
Although the mother argued that the child was not in immediate danger when he was taken away, the juvenile court disagreed, finding that the mother’s drug use placed the child at risk. Once it had jurisdiction, the court asked the mother whether there were any child custody or visitation orders or any family court proceedings in Mexico that involve the boy. She said no. Because no court in any other country or state had asserted jurisdiction over the child, the court found that it had subject matter jurisdiction under the UCCJEA. The court declared the child a dependent, removed him from his mother’s custody and paced him in foster care. The mother appealed, arguing that the court erred by asserting jurisdiction because Mexico, not California, was the child’s home state.
The court of appeals reversed, noting that under these facts, the child’s home state should have been given an opportunity to assume or decline jurisdiction. The court found no evidence as to whether there was a previous custody determination or a pending custody proceeding in Mexico. Significantly, the court noted, a proper inquiry into these questions was never made. The court remanded the matter back to juvenile court with instructions to hold a hearing as to whether California or Mexico has the proper jurisdiction under the UCCJEA.
While this is an unpublished decision, and parties may not rely on or cite the case, the court’s underlying rationale may serve to inform later cases. An experienced family law attorney would be able to properly advise parents concerning jurisdiction and other related child custody matters.
If you are a parent with questions about child custody matters, you are encouraged to contact Doppelt and Forney, APLC . Mr. Doppelt is an experienced family law attorney and has been representing parents involved in child custody disputes for more than 20 years. Doppelt and Forney, APLC serves clients throughout Southern California, including San Diego, Encinitas, La Jolla, and Chula Vista. For a free consultation, contact Doppelt and Forney, APLC through our website, or give us a call toll-free at (800) ROY IS IT (769-4748).
Related Blog Posts:
California Court of Appeals Holds Temporary Child Custody Order Non-Appealable
Families Cautioned Against Self-Representation in Child Custody Cases
Appeal of Child Custody Order Must Be Filed in a Timely Manner