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Case of the Month (from CFLR Monthly)

December 2018
[Archive]

India could not have concurrent jurisdiction under UCCJEA. . .

 

In affirmance, Fourth District holds that trial court did not err when it found that it had UCCJEA home state jurisdiction, but ruled that California was an inconvenient forum, India was a more appropriate forum, and father’s custody petition should be stayed on condition that mother’s custody action in India proceeded

 

R.B. v. D.R.

(October 11, 2018)

California Court of Appeal 4 Civil E068760 (Div 2) 28 Cal.App.5 th 108, 238 Cal.Rptr.3 rd 904, 2018 FA 1859, per Ramirez, PJ (Codrington and Slough, JJ, concurring). Riverside County: Snell, Temporary Judge, affirmed. For appellant: Ronald Funk, CALS, (888) 249-7560. For respondent: James Husen, (951) 781-8985. CFLP §53.

 

R.B. and D.R., married Indian citizens, came to California in November 2012 on work and dependent visas respectively, but did not intend to remain here permanently. After their daughter was born in California in October 2013, the little family “went back and forth between California and India several times,” so that the child could be familiar with Indian culture and see her grandparents. One trip began on July 24, 2016 and lasted about five and a half months before D.R. and the child returned; R.B. had already returned sometime before that. However, that trip was ongoing when the parents argued on December 4, 2016. R.B. asked their daughter if she wanted “‘me and grandmom, or do you want mom?’” When the child replied “‘No, I want mom only,’” R.B. slapped her on the cheek, leaving red marks, and hit D.R. behind her ear.

 

D.R. and the child returned to California on January 10, 2017. In February, D.R. “‘uncovered infidelity’” by R.B. In a telephone conversation on February 7, R.B. told D.R. to “‘get out of the house.’” He followed up with a text message, telling D.R. that his final decision was that she “‘[p]ack up and go back to India and do whatever [she] want[ed]. . .’” and he would sell their house and face whatever “‘police court’” resulted. D.R. took that to mean that he feared a potential prosecution for domestic violence. D.R. immediately packed and took their daughter back to India. On February 10, she sought a restraining order against R.B. and/or his family members, which the India court granted the next day. The TRO precluded them from taking the child from D.R.’s custody until the next court hearing. On April 24, 2017, acting on D.R.’s petition, the India court granted her temporary guardianship of the child.

 

Meanwhile, on February 23, R.B. filed a petition for custody of the child, along with an ex parte application for temporary custody. The trial court granted the latter, giving him sole custody of their daughter. In response, D.R. asked the trial court to quash service of summons and to order that the case be heard in the India court. On March 22, the trial court stayed the ex parte custody order, pending a determination of jurisdiction. D.R. then filed a trial brief, contending that India was their daughter’s home state and/or was a more appropriate forum. After an evidentiary hearing, the trial court issued a statement of decision, determining that California had UCCJEA home state jurisdiction, but was an inconvenient forum, and that India was a more appropriate forum. Accordingly, the trial court stayed R.B.’s petition, on condition that D.R.’s custody proceeding in India would move forward.

 

R.B. appealed, but, in a partially-published opinion, the Fourth District affirmed.

 

UCCJA is a thing of the past. . .
R.B. contended that the trial court erred by concluding that India was a more appropriate forum because India did not have concurrent jurisdiction with California. The justices found that R.B.’s contention was “premised on outdated law,” and on “an unfortunate dictum” in In re Marriage of Nurie (2009) 176 Cal.App.4 th 478, 98 Cal.Rptr.3d 200, 2009 CFLR 11300, 2009 FA 1404, which suggested that the UCCJA was still good law, despite the enactment of the UCCJEA. The panel explained that under the UCCJA, states could have concurrent custody jurisdiction. However, one of the purposes of enacting the UCCJEA was to do away with concurrent jurisdiction; thus, under the UCCJEA, only one state can have custody jurisdiction. Here, California had exclusive custody jurisdiction under the UCCJEA, but could defer jurisdiction to another state if the trial court determined that the other state was a more appropriate forum under Fam C §3427, whether the other state had adopted the UCCJEA or not. The panel recognized that in Nurie dictum, that court had said that a court should decline jurisdiction on the grounds of inconvenient forum only when there is concurrent jurisdiction elsewhere, but they found themselves “‘at a loss to understand’” what that court meant by it and they “decline[d] to let this dictum lead [them] astray.” Summing up, the justices concluded that the lower court had not erred in finding that India was a more appropriate forum and India need not (and could not) have concurrent jurisdiction as a prerequisite to the court’s making that finding.

 

Non-pub...
In the unpublished part of the opinion, the justices found no merit in R.B.’s contentions re communications between the courts and alleged error in the trial court’s evaluation of the inconvenient forum factors.

 

 

Comment

  

The justices here take the Nurie court to task for its confusing dicta. However, this slip opinion contains some confusing wording of its own. The justices say that “we hold that India could be an inconvenient forum even if it did not have concurrent jurisdiction under the UCCJEA.” However, no one suggested that India is the inconvenient forum here and the justices emphasize that under the current UCCJEA, India could not have concurrent jurisdiction. We expect to see a modification of the opinion before too long. Meanwhile, don’t take this language literally.

 

 

The justices also say that once the trial court finds that California is an inconvenient forum, another state “thereby gains exclusive jurisdiction” provided that the state has also adopted the UCCJEA. This seemingly automatic transfer is tempered by the other state’s ability to decide that it is not a convenient forum either. That is why, the justices explain, the California trial court will stay, but not dismiss, the local proceeding, on the condition that the proceeding moves forward in the other state. If that state refuses jurisdiction, the case will return to the local court.

 

 

The slip opinion has as an appendix the trial court’s statement of decision. As the panel says in the unpublished part of the opinion, this is a thorough and cogent analysis of the jurisdictional issues facing the court. It is worth reading not only for that reason, but also as a guide to family law attorneys whose clients bring them similar issues.

 

 

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