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Why It's Important to Battle Child Custody in the Right State

In order to change a custody and visitation order, a California family law judge must have subject matter jurisdiction over the children involved. Otherwise, whatever orders are made will be null and void. That was the verdict from the California Court of Appeal in San Diego, which on Friday reversed a trial judge for making changes to a custody order originally issued by a North Carolina Judge.

In this case, entitled Marriage of Kent, a North Carolina judge entered a custody and visitation order in 2017. In 2018, the mother (“Molly”) opened up a case in California and filed a motion to change part of that order. At that time, Molly lived in California with the parties’ two children, now ages 13 and 11. But the father still lived in North Carolina.

The California judge granted part of the motion but denied other parts of it. In other words, some of the custody and visitation order was changed.

Mother appealed, arguing, as all people who appeal do, that the trial judge should have ruled differently on the motion. But in a 3-0 opinion authored by Justice Joan Irion, the appeals panel did not get into the custody dispute. After considering the statutory framework of the Uniform Child Custody Jurisdiction and Enforcement (UCCJEA) act, it ruled that because North Carolina had child custody subject matter jurisdiction when it made its 2017 orders, and because the father remained in that state, only North Carolina could change the orders – although California could take action to enforce the orders—unless the North Carolina judge determined that California would be a more convenient forum to hear the case and California had subject matter jurisdiction to make the initial custody orders.

In order for all of this to happen, based on California Family Code section 3429, the California judge would have had to have discussed the matter with the North Carolina judge and gotten the North Carolina judge to determine that California was the more appropriate state.

Because the UCCJEA is based on subject matter jurisdiction, not personal jurisdiction, it did not matter that the parties had stipulated at the trial level, “that California has UCCJEA” jurisdiction, because it did not. A party or parties cannot stipulate to subject matter jurisdiction.

On appeal, the father argued that the California judge’s failure to check in with the North Carolina judge was “harmless error”, because had that conversation taken place, the North Carolina judge would have determined that California was a more appropriate state to hear the dispute. But the justices here in California said that because the matter involved subject matter jurisdiction, the doctrine of harmless error did not apply.

The Kent case was certified for publication, meaning it is binding precedent on all trial judges throughout the state. Joining Justice Irion in her opinion, were Acting Presiding Justice Patricia Benke and Justice Patricia Guerrero.

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