Opinion
As Modified on Denial of Rehearing Nov. 25, 1981.
Opinions on pages 967-1030 omitted.
For Opinion on Hearing, see 186 Cal.Rptr. 772, 652 P.2d 1003.
[177 Cal.Rptr. 764]Bernard N. Wolf, San Francisco, Caralisa P. Hughes, San Jose, for petitioner.
Dolly Ares, San Jose, for real party in interest.
Assigned by the Chairperson of the Judicial Council.
In this case, pursuant to directions of the Supreme Court, we issued an alternative writ of mandate upon the petition of Jitendra Kumar. Petitioner seeks an order requiring respondent court to quash service of process and to dismiss an order to show cause served upon him by mail in an action brought by real party in interest Yvonne Kumar for modification of a foreign child support order and custody and visitation decree.
Procedural Background
Jitendra and Yvonne Kumar were married in New York on May 16, 1972. Their only child, Sunjay Richard Kumar, was born in New York on September 25, 1972. On October 2, 1974, the Supreme Court of New York granted Yvonne an uncontested final judgment of divorce which awarded custody of Sunjay to her and specified visitation rights to Jitendra. In May 1977 Yvonne obtained from the New York court an order modifying the support provisions of the 1974 judgment. In April 1979 Yvonne and Sunjay moved to California. Jitendra remained in New York.
In July 1980, through California counsel, Jitendra filed in respondent court a certified copy of the New York judgment of divorce, and a petition for writ of habeas corpus directing Yvonne to produce Sunjay. He alleged in the habeas petition that he was entitled to visitation and that Yvonne had "withheld and secreted" the child in derogation of his visitation rights. The writ issued; Yvonne appeared in court with Sunjay on August 19, 1980; and Jitendra was granted a two-week visit, in accordance with the summer visitation provision of the New York judgment.
On November 17, 1980, respondent court at Yvonne's request issued an ex parte order directing Jitendra to show cause on December 15 why the visitation provisions of the New York judgment, and the New York support order should not be modified, [177 Cal.Rptr. 765] with an award of attorney's fees and an assessment of arrearages. On December 11, 1980, Jitendra filed notices of motions to quash service of process for lack of personal jurisdiction and to dismiss for lack of subject-matter jurisdiction. He stated in supporting declarations that he had been personally served with process in New York; that he did not consent to the exercise of personal jurisdiction; and that he had had no contact with California except for the habeas proceeding which he had initiated and his registration in California of the New York custody decree. He declared that Sunjay had lived in New York all his life until he was taken to California, had received medical care in New York, and had attended school there; and that neighbors, relatives, teachers, doctors, and others who reside in New York could testify concerning Sunjay's behavior and adjustment. In an opposing declaration Yvonne stated that she had not left New York with the intention of depriving Jitendra of his visitation rights; that she had never secreted the child; and that Jitendra had never made any request for visitation which she had refused.
See Civil Code section 5151, subdivision (4), which defines "custody decree."
Following a jurisdictional hearing at which neither Jitendra nor Yvonne testified, respondent court by order dated January 19, 1981, denied the jurisdictional challenges.
The court did so on the following grounds: "1. The closest contacts with the child's present and future living environment, present and predictable development, as well as available witnesses are in the State of California; (P) 2. (Jitendra) has sought, and received, assistance with enforcement of visitation rights by this Court having accepted and enforced the foreign New York decree. This Court can fairly adjudicate further similar issues as they arise; (P) 3. The best interests of the child can best be gauged by the jurisdiction with the closest contacts with the child. The relative convenience of either parent should not be a paramount consideration."
On January 21, 1981, the Supreme Court of New York at Jitendra's request entered an ex parte order directing Yvonne to show cause why an order should not be made cancelling all arrearages in child support payments from April 11, 1979, until the present; awarding attorney's fees; and granting other appropriate relief. By letter dated February 6, 1981, Yvonne's counsel informed the New York court of the pending California proceeding. A memorandum decision was then made by the New York court dated March 25, 1981, which stated that that court had jurisdiction to hear the matter and render a decision, and which set forth certain determinations.
The letter indicated as well that Yvonne had "no funds with which to contest the Order to Show Cause in New York."
The memorandum decision provides in part: "It appears that from the date of the divorce decree until April 10, 1979, the defendant (Jitendra) fulfilled his support and alimony obligations as well as taking advantage of his visitation rights with his infant son. However, on or about April 10, 1979, the plaintiff (Yvonne), with her infant son, without warning or justification, left New York and set up residence in California. Defendant made numerous efforts to contact his ex-wife and determine the whereabouts of his son. Finally, having confirmed the plaintiff's address, the defendant traveled to California and petitioned the Court through a habeas corpus proceeding to allow him to visit with his son. This was accomplished and he was able to see his son for two weeks during August, 1980 and said contact with his off-spring was the first since April, 1979. (P) The plaintiff has supplied the Court with a letter from her California attorney who had attached papers indicating that a proceeding to enforce support and alimony and determine arrearages is pending in California. However, the plaintiff does not oppose this application on the merits nor does she dispute the allegations submitted by the defendant in the moving papers. The plaintiff's only request is that this order to show cause be dismissed or in the alternative stayed pending a decision of the California action. (P) The Court clearly has jurisdiction to hear this matter and render a decision on the merits. The Court is satisfied that the plaintiff wrongfully interfered with and withheld visitation rights provided by the judgment of this Court dated October 2, 1974 and will cancel any arrears that have occurred from April 11, 1979 until the present date and will suspend any future payments of alimony and child support until the plaintiff allows the defendant the opportunity to avail himself of his judicially decreed visitation rights."
[177 Cal.Rptr. 766]This was followed by a formal order of the New York court dated May 7, 1981, relating to continuing jurisdiction, cancelling arrearages of and suspending further payments of alimony and child support until Yvonne resides at a location reasonably conducive to Jitendra's exercise of his rights of visitation with the child.
The formal order provides in part: "(T)his Court retains continuing jurisdiction over the matters of alimony, child support and custody as between the parties herein (A)ny and all arrears of alimony and child support payable by defendant to plaintiff from April 11, 1979 until the present date are hereby cancelled in their entirety (A)ll future obligations of defendant to pay alimony and child support are hereby suspended until plaintiff allows defendant the opportunity to avail himself of his judicially decreed visitation rights by residing with the infant SUNJAY RICHARD at a location reasonably conducive to the exercise of said visitation rights (I)n all other respects the decree of divorce between plaintiff and defendant dated the 2nd day of October, 1974 shall remain unchanged and in full force and effect."
Discussion
We are principally concerned with two jurisdictional principles: subject-matter jurisdiction, and personal jurisdiction.
We note at the outset that "there is a distinction between the power to exercise judicial jurisdiction to determine the custody of children and the exercise of judicial jurisdiction to provide for the support of children. The former deals essentially with judicial jurisdiction over status while the latter is governed primarily by the principles applicable to jurisdiction over persons." (Titus v. Superior Court (1972) 23 Cal.App.3d 792, 797, 100 Cal.Rptr. 477.) Titus stated that "custody is a question of status and hence is subject to the control of the state where the child is domiciled or physically present (J)urisdiction to determine the custody of the children in the instant case (because they were present in the state when custody proceedings were instituted) does not depend on whether petitioner (their nonresident father) is personally subject to the jurisdiction of California." (Id., at pp. 797-798, 197 P.2d 739; see Sampsell v. Superior Court (1948) 32 Cal.2d 763, 777-780, 197 P.2d 739.)
Here, as in Titus, the minor child was physically present in California when modification proceedings were instituted in respondent court. Titus, however, was decided before California adopted the Uniform Child Custody Jurisdiction Act (UCCJA; Civ.Code, § 5150 et seq.), which limits jurisdiction and is the exclusive method for determining subject matter competence of California courts to proceed with custody adjudications. (In re Marriage of Hopson (1980) 110 Cal.App.3d 884, 891, 168 Cal.Rptr. 345.) Visitation rights are treated as custody matters under the UCCJA. (Smith v. Superior Court (1977) 68 Cal.App.3d 457, 461, 137 Cal.Rptr. 348.)
The federal Parental Kidnaping Prevention Act of 1980 (28 U.S.C. § 1738A) constitutes a further limitation on the exercise of subject-matter jurisdiction with respect to child custody. The federal act implements the "full faith and credit" clause of the United States Constitution.
Civil Code section 5152 sets forth specifically the basis upon which custody jurisdiction may be exercised. Subdivision (1) thereof provides: "A court of this state which is competent to decide child custody matters has jurisdiction to make a child custody determination by initial or modification decree if the conditions as set forth in any of the following paragraphs are met: (P) (a) This state (i) is the home state of the child at the time of commencement of the proceeding (P) (b) It is the best interest of the child that a court of this state assume jurisdiction because (i) the child and his parents, or the child and at least one contestant, have a significant connection with this state, and (ii) there is available in this state substantial evidence concerning the child's present or future care, protection, training, and personal relationships."
All further references are to the provisions of the Civil Code except as otherwise noted.
Section 5151, subdivision (5), defines "home state" as "the state in which the child immediately preceding the time involved [177 Cal.Rptr. 767] lived with his parents, a parent, or a person acting as a parent, for at least six consecutive months " Respondent court's jurisdiction to adjudicate visitation rights in this case is established under either one of the alternative tests set forth above. (See In re Marriage of Hopson, supra, 110 Cal.App.3d at p. 894, 168 Cal.Rptr. 345.)
The California court correctly determined that it was the child's "home state" (§ 5152, subd. (1)(a); § 5151, subd. (5)). The New York decree had awarded custody to the mother and she and the child met the jurisdiction requirements, having moved to California in April 1979 and residing therein for over 18 months before the respondent court issued its order to show cause for modification in November 1980.
Initially we are concerned with whether there are in this case statutory limitations on the exercise of jurisdiction which would preclude the California court from modifying the New York decree.
Petitioner contends that under Civil Code section 5152, subdivision (1)(b), the New York court retains jurisdiction to make custody determinations; and that because the New York court has continuing jurisdiction, the California court may not modify the New York decree.
Subdivision (1) of section 5163 provides: "If a court of another state has made a custody decree, a court of this state shall not modify that decree unless (a) it appears to the court of this state that the court which rendered the decree does not now have jurisdiction under jurisdictional prerequisites substantially in accordance with this title or has declined to assume jurisdiction to modify the decree and (b) the court of this state has jurisdiction."
Pursuant to the provisions of section 5163, subdivision (1), the New York decree cannot be modified unless it appears that the New York court "does not now have jurisdiction under jurisdictional prerequisites substantially in accordance with" the California version of the UCCJA (see In re Marriage of Hopson, supra, at pp. 892-899, 168 Cal.Rptr. 345). If the New York court presently would have jurisdiction, by California standards, to modify its own decree, then the California court must abstain from doing so. New York, however, "should not assume the authority to modify a custody decree solely upon the fact that it was the state that initially made the custody determination." (In re Marriage of Steiner (1979) 89 Cal.App.3d 363, 371, 152 Cal.Rptr. 612.) The basis upon which petitioner would predicate New York's continuing jurisdiction to modify is contained in section 5152, subdivision (1) (b): "It is the best interest of the child that a court of this state (here, New York) assume jurisdiction because (i) the child and his parents, or the child and at least one contestant, have a significant connection with this state, and (ii) there is available in this state substantial evidence concerning the child's present or future care, protection, training, and personal relationships."
In denying petitioner's motion to dismiss, the California court found: "The closest contacts with the child's present and future living environment, present and predictable development, as well as available witnesses are in the State of California; The best interests of the child can best be gauged by the jurisdiction with the closest contacts with the child." Implicit therein, the California court found that New York no longer had jurisdiction by California standards to modify the custody decree. Petitioner does not contend that those findings, express and implied, are without support in the record. He relies on Palm v. Superior Court (1979) 97 Cal.App.3d 456, 158 Cal.Rptr. 786. Civil Code section 5155 and the Palm decision require California courts to abstain only if the foreign court is 'exercising jurisdiction substantially in conformity with this title.' (Civ. Code, §§ 5155, subd. 1, 5163; Palm v. Superior Court, supra, 97 Cal.App.3d at p. 469.) Since the trial court and this court found that New York did not have jurisdiction by California standards, the California court was not obliged to stay proceedings.
See, ante, footnote 2.
[177 Cal.Rptr. 768]Assuming arguendo that the federal Parental Kidnaping Prevention Act of 1980 (28 U.S.C. § 1738A) applies, it also limits the exercise of jurisdiction to modify a sister-state custody decree.
The federal legislation was enacted on December 28, 1980, but was attached as a rider to a federal law which was not to become effective until July 1, 1981. The date on which the Act became effective is therefore subject to some doubt. (See Adams and Sevitch, California Family Law Practice (April 1981 Supp.) §§ C.43, C.50.)
As codified, the Act provides in part: "(a) The appropriate authorities of every State shall enforce according to its terms, and shall not modify except as provided in subsection (f) of this section, any child custody determination made consistently with the provisions of this section by a court of another State (P) (c) A child custody determination made by a court of a State is consistent with the provisions of this section only if (1) such court has jurisdiction under the law of such State; and (2) one of the following conditions is met: (A) such State (i) is the home State of the child on the date of the commencement of the proceeding, or (ii) had been the child's home State within six months before the date of the commencement of the proceeding and the child is absent from such State because of his removal or retention by a contestant or for other reasons, and a contestant continues to live in such State; (B)(i) it appears that no other State would have jurisdiction under subparagraph (A), and (ii) it is in the best interest of the child that a court of such State assume jurisdiction because (I) the child and his parents, or the child and at least one contestant, have a significant connection [177 Cal.Rptr. 773] with such State other than mere physical presence in such State, and (II) there is available in such State substantial evidence concerning the child's present or future care, protection, training, and personal relationships; (E) the court has continuing jurisdiction pursuant to subsection (d) of this section. (P) (d) The jurisdiction of a court of a State which has made a child custody determination consistently with the provisions of this section continues as long as the requirement of subsection (c)(1) of this section continues to be met and such State remains the residence of the child or of any contestant. (P) (e) Before a child custody determination is made, reasonable notice and opportunity to be heard shall be given to the contestants, any parent whose parental rights have not been previously terminated and any person who has physical custody of a child. (P) (f) A court of a State may modify a determination of the custody of the same child made by a court of another State, if (1) it has jurisdiction to make such a child custody determination; and (2) the court of the other State no longer has jurisdiction, or it has declined to exercise such jurisdiction to modify such determination " (Emphasis added.)
Because New York was the child's "home state" when the initial custody decree was rendered, and because petitioner remained a New York resident, New York had continuing jurisdiction within the meaning of the federal statute and the New York decree could not be modified by the California court as long as the New York court continued to have jurisdiction under New York law. (28 U.S.C. § 1738A, subds. (c)(1), (d).)
New York has adopted the UCCJA. It is uncertain whether the jurisdictional question should be decided any differently under New York law than under California law. (E. g. Theresa H. v. Pasquale G. (1980) 102 Misc.2d 759, 424 N.Y.S.2d 652; De Passe v. De Passe (1979) 70 A.D.2d 473, 421 N.Y.S.2d 497; Vanneck v. Vanneck (1979) 68 A.D.2d 591, 417 N.Y.S.2d 258; William L. v. Michele P. (1979) 99 Misc.2d 346, 416 N.Y.S.2d 477; Hricko v. Stewart (1979) 99 Misc.2d 266, 415 N.Y.S.2d 747; Appelblom v. Appelblom (1979) 66 A.D.2d 188, 412 N.Y.S.2d 517.) Some of the cases indicate that New York would retain jurisdiction under the UCCJA if it were found [177 Cal.Rptr. 769] that real party "unilaterally removed" the child from New York in derogation of petitioner's visitation rights. (See De Passe v. De Passe, supra, 421 N.Y.S.2d at p. 499; see also William L. v. Michele P., supra, 416 N.Y.S.2d at p. 481; Hricko v. Stewart, supra, 415 N.Y.S.2d at p. 749.) The New York court in its most recent order asserting custody jurisdiction is apparently basing such jurisdiction on that ground as well as the doctrine that the state that originally made a child custody decree continues to have jurisdiction over the matter and has first choice to assert its jurisdiction in any subsequent custody disputes, so long as at least one of the parties still remains a resident of that state. (See, e. g., Bodenheimer, Interstate Custody: Initial Jurisdiction and Continuing Jurisdiction under the UCCJA (1981) 14 Family Law Q. 203, 214-215; compare In re Marriage of Steiner, supra, 89 Cal.App.3d at p. 371, 152 Cal.Rptr. 612.)
(McKinney's Domestic Relations Law, §§ 75-a through 75-z.)
We are of the opinion, however, that the guiding principle of the California, New York (Vanneck v. Vanneck, supra, 417 N.Y.S.2d at p. 262) and federal law is that the best interests of the child are and should remain paramount. At least to that extent the laws of those jurisdictions are congruent.
The New York court, unlike the California court, has not recently addressed the question of the child's best interests. The California court found on the date of the hearing that there was a strong contact of the child and parent with the state of California, and the existence of substantial evidence in California concerning the child's care and relationship with others (see In re Marriage of Steiner, supra, 89 Cal.App.3d at p. 369, 152 Cal.Rptr. 612). The court expressly found that the closest contacts are with California, and that the child's interests will best be served by local adjudication of custody and visitation issues. It cannot be said that Congress or the state Legislature intended to preclude local adjudication under the circumstances as they appear from this record, nor can it be said as a matter of law that respondent court's "best interests" determination was erroneous. (See Smith v. Superior Court, supra, 68 Cal.App.3d at p. 464, 137 Cal.Rptr. 348.) We therefore conclude that the New York court no longer has jurisdiction under its own law to make a custody determination, and no longer has continuing jurisdiction within the meaning of the federal statute. California is the state which can best decide custody and visitation in the best interests of the child, and the California court may modify the custody and visitation provisions of the New York decree.
Petitioner contends that the trial court should have declined to exercise its jurisdiction because of alleged misconduct on the part of real party in interest in removing the child from New York to California and thereby frustrating petitioner's visitation rights.
Section 5157, subdivision (2) provides: "Unless required in the interest of the child, the court shall not exercise its jurisdiction to modify a custody decree of another state if the petitioner, without consent of the person entitled to custody has improperly removed the child from the physical custody of the person entitled to custody or has improperly retained the child after a visit or other temporary relinquishment of physical custody. If the petitioner (for modification) has violated any other provision of a custody decree of another state the court may decline to exercise its jurisdiction if this is just and proper under the circumstances."
The subdivision "clearly distinguishes illegal removal or retention from all other custody violations. As to the former, refusal of jurisdiction is mandatory; as to the latter, refusal of jurisdiction is merely discretionary (citation)." (In re Marriage of Hopson, supra, 110 Cal.App.3d at p. 898, 168 Cal.Rptr. 345; see Bosse v. Superior Court (1979) 89 Cal.App.3d 440, 444-445, 152 Cal.Rptr. 665.)
Assuming arguendo, there was misconduct, the decision whether to exercise jurisdiction was a discretionary one under the circumstances presented here (In re Marriage of Hopson, supra, 110 Cal.App.3d at [177 Cal.Rptr. 770] pp. 897-898, 168 Cal.Rptr. 345; see also Bosse v. Superior Court, supra, 89 Cal.App.3d 440, 152 Cal.Rptr. 665 (in custody proceedings, the issue of "clean hands" should be subordinated to the child's best interests)), and we perceive no abuse of discretion.
The provisions of the jurisdictional statute (§ 5152) and the "clean hands" statute (§ 5157) having been met, the California court may exercise custody jurisdiction (see In re Marriage of Hopson, supra, at p. 897, 168 Cal.Rptr. 345).
The New York decree was made substantially in accordance with the standards of the UCCJA (see § 5162) and is thereby enforceable in California as the filing of the New York decree in California met the filing requirements of section 5164, subdivision (1).
Section 5164, subdivision (1) reads: "A certified copy of a custody decree of another state may be filed in the office of the clerk of any superior court of this state. The clerk shall treat the decree in the same manner as a custody decree of the superior court of this state. A custody decree so filed has the same effect and shall be enforced in like manner as a custody decree rendered by a court of this state."
As we have noted, the controlling issue with respect to child support centers on personal jurisdiction. Since the child was physically present in this state, the California court has subject matter jurisdiction to pass on the child's rights, through the mother, to secure support from the father if there is a need for it (Titus v. Superior Court, supra, 23 Cal.App.3d at p. 799, 100 Cal.Rptr. 477). In order to impose a personal liability or obligation on the father, however, the state must have personal jurisdiction over him.
"Under Code of Civil Procedure section 410.10, a California court may exercise jurisdiction over nonresidents on any basis not inconsistent with the United States or California Constitutions. This section manifests an intent to exercise the broadest possible jurisdiction, limited only by constitutional considerations." (Sibley v. Superior Court (1976) 16 Cal.3d 442, 445, 128 Cal.Rptr. 34, 546 P.2d 322; Bergan v. Bergan (1981) 114 Cal.App.3d 567, 170 Cal.Rptr. 751.) The federal Constitution requires "a sufficient connection between the defendant (petitioner in this case) and the forum State to make it fair to require defense of the action in the forum (T)he facts of each case must be weighed to determine whether the requisite 'affiliating circumstances' are present." (Kulko v. California Superior Court (1978) 436 U.S. 84, 91-92, 98 S.Ct. 1690, 1696, 56 L.Ed.2d 132). At a minimum, the nonresident must fairly "be said to have 'purposefully availed himself' of the 'benefits and protections' of California's laws." (Id., at p. 94, 98 S.Ct. at 1698.) If that requirement is met, then it must be determined "whether the 'quality and nature' of the (nonresident's) activity is such that it is 'reasonable' and 'fair' to require him to conduct his defense in that State." (Id., at p. 92, 98 S.Ct. at 1696.)
"(R)eal party has the burden of proof of facts establishing personal jurisdiction in respondent court despite proper service of process outside the state." (Judd v. Superior Court (1976) 60 Cal.App.3d 38, 43, 131 Cal.Rptr. 246.) In this case the only contacts petitioner has had with California are his initiation of the habeas corpus proceeding here and his registration in this state of the 1974 New York judgment of divorce. Real party submits that those voluntary acts, by which petitioner sought to enforce his visitation rights under the 1974 custody decree, are sufficient to confer in personam jurisdiction on the California court to modify the 1977 New York child support order. As authority she quotes Davenport v. Superior Court (1920) 183 Cal. 506, 511, 191 P. 911: "An act of a defendant by which he intentionally submits himself to the jurisdiction of the court in that action for the purpose of obtaining any ruling or order of the court going to the merits of the case which may reasonably be construed to imply that the court has, in that action, acquired jurisdiction of the person of the defendant, will be equivalent to (a general) appearance"
[177 Cal.Rptr. 771]In Mikulski v. Mikulski (1969) 2 Cal.App.3d 1047, 83 Cal.Rptr. 15, the husband filed an action for divorce in California against his wife who was residing with their minor children in another state, alleging his willingness to make child support payments of a certain sum he deemed reasonable with custody of the children in the mother. The judgment of divorce entered after the mother's default contained an order for such child support payments. The court held: "By filing his action for divorce in the California court plaintiff husband placed before the court the issue of the dissolution of the marriage and the support of the minor children, and submitted himself and his status as husband and father to the jurisdiction of the court with respect to his cause of action. Plaintiff was personally before the court which had in personam jurisdiction over him thus the power to render a personal judgment against him." (Id., at p. 1051, 83 Cal.Rptr. 15.)
We are of the opinion that these cases are distinguishable from the facts here. By bringing an action, or by appearing in an action generally, a party consents to the exercise of in personam jurisdiction in that action. Where there has been consent to personal jurisdiction, the sufficiency of any other "contact" with the forum becomes irrelevant.
By attempting in this state to enforce his visitation rights under the New York custody decree, however, petitioner did not intend to nor did he submit to the jurisdiction of the California court in all matters touching upon his domestic relations. In the habeas corpus proceeding, petitioner's status as a person obliged to make support payments was not and should not have been an issue. Any failure on his part to make support payments would not have served to defeat his visitation rights. (See Smith v. Superior Court, supra, 68 Cal.App.3d at p. 465, 137 Cal.Rptr. 348.) Furthermore, the right of visitation is not necessarily dependent upon the relationship of parent and child. (In re Marriage of O'Connell (1978) 80 Cal.App.3d 849, 859, 146 Cal.Rptr. 26; see Civ.Code, § 4601.)
By seeking and obtaining a writ, petitioner availed himself of the benefits and protections of California's laws; but those benefits and protections were not a "privilege" (Hanson v. Denckla (1958) 357 U.S. 235, 253, 78 S.Ct. 1228, 1239, 2 L.Ed.2d 1283; Kulko v. California Superior Court, supra, 436 U.S. at p. 94, 98 S.Ct. at 1698) which the California court, in the child's best interest, was at liberty to refuse. (See Ferreira v. Ferreira (1973) 9 Cal.3d 824, 833-834, fn. 7, 109 Cal.Rptr. 80, 512 P.2d 304; see also Civ. Code, §§ 5161, 5162.) Had petitioner merely visited his child in California for two weeks, unaided by court process, personal jurisdiction for support purposes would not have attached. (Judd v. Superior Court, supra, 60 Cal.App.3d at p. 45, 131 Cal.Rptr. 246; see Titus v. Superior Court, supra, 23 Cal.App.3d at pp. 802-803, 100 Cal.Rptr. 477.)
Basic considerations of fairness point in favor of petitioner's state of domicile as the proper forum for adjudication of the child support issues in this case, whatever the merits of real party's underlying claim. It is petitioner who at all times remained in the state of the marital domicile except for the one exercise of his lawful visitation right, where the decree of divorce was rendered and where all parties resided for a number of years after the decree became final. It is real party in interest who years after the decree had been rendered moved across the continent with the child. Petitioner did no more here than to seek that to which he and his child were entitled. The single act of seeking a writ of habeas corpus to enforce his visitation rights under the New York decree is not one which a reasonable parent would expect to result in having to litigate a child-support suit across the continent. We see no basis on which it could be said that petitioner could reasonably have anticipated being brought before the California court. To do so would impose an unreasonable burden on family relations a burden unjustified by the quality and nature of petitioner's activity in or relating to the State of California. (See Kulko v. California Superior Court, supra, [177 Cal.Rptr. 772] 436 U.S. at pp. 97-98, 98 S.Ct. at 1699-1700.) It would be unfair to petitioner, the non-resident parent.
To find personal jurisdiction here would discourage parents from entering into reasonable visitation agreements and could arbitrarily subject the noncustodial parent to a suit in a foreign state simply by the exercise of that parent's visitation rights.
As noted in Kulko, real party could have brought and can now bring an action to increase child support payments in the state of New York. If the New York court increased petitioner's child support obligations, they could properly be enforced against him both in New York and California. (Id., at p. 95, 98 S.Ct. at 1698.)
Kulko also provides that: "California's legitimate interest in ensuring the support of children resident in California without unduly disrupting the children's lives is served by the State's participation in the Revised Uniform Reciprocal Enforcement of Support Act of 1968 (URESA) " which "permits a California resident claiming support from a nonresident to file a petition in California and have its merits adjudicated in the State of the alleged obligor's residence, without either party having to leave his or her own State. Cal.Civ.Proc. Code Ann. § 1650 et seq. (West 1972 and Supp. 1978). (Footnote omitted.) New York State is a signatory to a similar Act. (N.Y.Dom.Rel.Law § 30 et seq. (McKinney 1977) (Uniform Support of Dependents Law))." (436 U.S. at pp. 98-99, 98 S.Ct. at 1700.) Thus, not only may "plaintiff-appellee here vindicate her claimed right to additional child support from her former husband in a New York court but also the Uniform Acts will facilitate both her prosecution of a claim for additional support and collection of any support payments found to be owed by appellant." (Id., at p. 100, 98 S.Ct. at 1701.)
In stating that the child's support is being served by URESA, that court apparently did not consider or contemplate the effect on URESA proceedings such as are contained in the formal order of the New York court dated May 7, 1981, which cancelled child and alimony arrearages for over a two-year period and which suspended further payments of alimony and child support until the real party herein resides at a location "reasonably conducive" to the exercise of visitation by the petitioner with the child (see, ante, footnotes 4 and 5).
In this regard, we must presume that New York courts will follow the requirements of URESA as set forth by the United States Supreme Court.
"In addition to California, 24 other States are signatories to this Act. 9 U.L.A. 473 (Supp. 1978). Under the Act, an 'obligee' may file a petition in a court of his or her State (the 'initiating court') to obtain support. 9 U.L.A. §§ 11, 14 (1973). If the court 'finds that the (petition) sets forth facts from which it may be determined that the obligor owes a duty of support and that a court of the responding state may obtain jurisdiction of the obligor or his property,' it may send a copy of the petition to the 'responding state.' § 14. This has the effect of requesting the responding State 'to obtain jurisdiction over the obligor.' § 18(b). If jurisdiction is obtained, then a hearing is set in a court in the responding State at which the obligor may, if he chooses, contest the claim. The claim may be litigated in that court, with deposition testimony submitted through the initiating court by the initiating spouse or other party. § 20. If the responding state court finds that the obligor owes a duty of support pursuant to the laws of the State where he or she was present during the time when support was sought, § 7, judgment for the petitioner is entered. § 24. If the money is collected from the spouse in the responding State, it is then sent to the court in the initiating State for distribution to the initiating party." (Kulko v. California Superior Court, supra, 436 U.S. at p. 99, fn. 13, 98 S.Ct. at 1700.)
The child's best interest should not be discouraged by conditioning the availability of court process to enforce those rights on the visitor petitioner's willingness to subject himself to the expense and inconvenience of relitigating the matter of support in California.
The exercise of his right of visitation under the facts of this case do not justify the California court's in personam exercise of jurisdiction over petitioner with respect to support payments.
[177 Cal.Rptr. 773]Let a peremptory writ of mandate issue directing respondent court to vacate its order denying the motion to quash service of process and to enter a new order (a) granting the motion to quash insofar as service of the order to show cause purports to establish in personam jurisdiction for purposes of support payments; and (b) denying the motion in all other respects.
RACANELLI, P. J., and ELKINGTON, J., concur.
The purposes of the federal Act are to: "(1) promote cooperation between State courts to the end that a determination of custody and visitation is rendered in the State which can best decide the case in the interest of the child; (2) promote and expand the exchange of information and other forms of mutual assistance between States which are concerned with the same child; (3) facilitate the enforcement of custody and visitation decrees of sister States; (4) discourage continuing interstate controversies over child custody in the interest of greater stability of home environment and of secure family relationships for the child; (5) avoid jurisdictional competition and conflict between State courts in matters of child custody and visitation which have in the past resulted in the shifting of children from State to State with harmful effects on their well-being; and (6) deter interstate abductions and other unilateral removals of children undertaken to obtain custody and visitation awards." (Congressional Findings and Declaration of Purposes for the Parental Kidnaping Prevention Act of 1980; Pub.L. 96-611, § 7, subd. (c).)