Opinion
A100555.
11-14-2003
EDWARD ELIO GALANTE, Plaintiff and Respondent, v. RONNIE JACARANDA SUMMERFIELD, Defendant and Appellant.
In this custody dispute, the mother argues on appeal that the trial court erred in enforcing a custody order issued by the High Court of Zimbabwe. We reverse the enforcement order.
PROCEDURAL AND FACTUAL HISTORY
Marriage and Divorce in Zimbabwe
Appellant Ronnie Jacaranda Summerfield (mother) and respondent Edward Elio Galante (father) were married in the country of Zimbabwe in 1985. Mother is a British citizen whose family had lived in Zimbabwe for decades. Father is an American citizen who was a resident of California at the time the couple married. During the early years of their marriage the parties lived in California, where their two children were born in 1988 and 1990. In 1992, the family relocated to Zimbabwe.
In 1998, mother initiated an action for divorce in the High Court of Zimbabwe, but she voluntarily dismissed the action on the eve of trial in December 2000. The following day, father filed his own action for divorce in Zimbabwe. Initially, father requested that custody of the children be awarded to mother. In March 2001, father was awarded visitation. However, in June 2001, father amended his pleading to seek custody based on allegations that mother was alienating the childrens affections from him.
Mother raised a challenge in the Zimbabwe court to that courts jurisdiction to hear the divorce action. Mother argued that father was a resident of California, not Zimbabwe. The Zimbabwe trial court rejected mothers jurisdictional challenge, and mother appealed that decision on jurisdiction to the Supreme Court of Zimbabwe. Her appeal was eventually rejected in September 2002.
In December 2001, mother and the children left Zimbabwe, arriving in California in January 2002. On February 8, 2002, father obtained an interim custody order from the Zimbabwe court pending trial in the Zimbabwe divorce action. That order compelled mother to return with the children to Zimbabwe or deliver custody of the children to father. At a subsequent pretrial conference held February 25, 2002, the Zimbabwe trial court declined fathers request to order the children returned within two weeks. The court did note, however, that mother had removed the children "without lawful right" and had thereby deprived father of his visitation rights. Trial on the Zimbabwe divorce action was continued to June 3, 2002.
Mother appealed the interim custody order. But in March 2002, father obtained an order from the Zimbabwe trial court permitting him to enforce the custody order notwithstanding mothers appeal.
In June 2002, the Zimbabwe court continued the trial date, at mothers request, until July 22, 2002. At the same time, the Zimbabwe court denied mothers request for a stay of the divorce action, despite mothers allegations that her safety was at risk if she were to return to Zimbabwe for trial. The Zimbabwe court observed that mother "has refused, and is still refusing, to comply with [the February 2002 order for return of the children to Zimbabwe]. . . . The application for a moratorium is clear evidence that her intention is to delay the proceeding for as long as possible. She is trying to manipulate the court."
On July 22, 2002, trial began in the Zimbabwe court on the divorce action. Mother did not personally appear, but she was represented by counsel. At the end of the five-day trial, the Zimbabwe trial court dissolved the marriage bonds in open court and then, over two months later, issued its ruling on October 1, 2002, concerning child custody, support, and division of marital property. The judgment of the Zimbabwe court called for return of the children to Zimbabwe under the custody of mother on or before October 31, 2002, but if the children were not returned to Zimbabwe by that date custody would be awarded to father.
On October 18, 2002, the Zimbabwe trial court issued a statement of decision explaining in detail the reasons for its rulings on custody, support, and property division. The Zimbabwe judge recited the evidence produced by both sides on the issue of custody: Father had presented a clinical psychologist, who opined that the children were suffering as a result of mothers longstanding detrimental behavior—i.e., her unjustified and exaggerated denigration of father to the children. Mother had presented a clinical social worker/therapist, who found mother to be a loving parent and who disagreed with fathers expert. The Zimbabwe trial court was persuaded by fathers evidence and found that it would be in the best interests of the children for father to have contact with the children, though a shift in physical custody from the mother would be too drastic. The court found mothers claims of fathers physical abuse to be not credible, and the court found that mother had deliberately tried to prevent father from having contact with the children, noting that her "sudden flight with the children to California shows the lengths to which she is prepared to go to keep them from him."
Mother did not appeal the judgment of the Zimbabwe court.
The Legal Separation Action in California
In September 2001, while she was still in Zimbabwe, mother filed a legal separation action in California (S.F. Super. Ct. No. FL043107). In February 2002, she submitted a declaration to the court that she and the children intended to reside permanently in California and that Zimbabwe, which was undergoing a civil war, was too dangerous a place for her and the children to live.
Father moved to quash the proceeding on the ground, inter alia, that the divorce action was pending in Zimbabwe. Initially, the trial court declined to rule on fathers motion until the Zimbabwe court ruled on mothers challenge to the jurisdiction of the Zimbabwe court over the divorce proceedings. On July 10, 2002, after the Zimbabwe trial court indicated its intention to proceed to trial notwithstanding wifes objections, the California trial court granted fathers motion to quash the legal separation action. The trial court found that it lacked jurisdiction to proceed inasmuch as the Zimbabwe court had taken jurisdiction over the divorce action. Mothers separate appeal from the dismissal of her legal separation action is before us in In re Marriage of Summerfield and Galante (A100735).
Temporary Emergency Jurisdiction
On April 5, 2002, within her legal separation action, mother asked the trial court to exercise temporary emergency jurisdiction to determine child custody pursuant to the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA). (Fam. Code, § 3424, subd. (a).) Father opposed the request.
Mother based her request for emergency jurisdiction on allegations that father had abused the children and that conditions in Zimbabwe were so dangerous that the childrens health and safety would be at risk if they were forced to live there. Father, on the other hand, denied abusing the children and denied that there was any danger to mother or the children from the conditions in Zimbabwe. While mothers request was pending, she submitted a supplemental declaration that the family home in Zimbabwe, the Machera farm, had been appropriated by the Zimbabwe government and designated for resettlement.
Registration of the Zimbabwe Custody Order
On April 25, 2002, father initiated a separate superior court action to register the interim child custody order that had been rendered by the Zimbabwe court in February 2002. It is from that separate action that this appeal arises. Mother contested the registration and also, within her legal separation action, asked that the Zimbabwe custody order be denied enforcement. The parties stipulated to a stay of enforcement of the February 2002 Zimbabwe custody order pending confirmation of registration.
After hearing argument from the parties on June 13, 2002, the trial court overruled mothers objections and confirmed the February 2002 Zimbabwe custody order. However, the court also accepted temporary emergency jurisdiction and stayed enforcement of the registered Zimbabwe custody order until July 22, 2002, the date set for trial on the divorce action then pending in Zimbabwe. The trial court also combined the proceedings concerning mothers challenge to the February 2002 Zimbabwe custody order and fathers registration action, so that mothers request for emergency jurisdiction under the UCCJEA was deemed filed within fathers action for registration of the Zimbabwe order.
Enforcement of the Zimbabwe Custody Order
Meanwhile, on June 12, 2002, father had petitioned for enforcement of the February 2002 Zimbabwe custody order. Mothers opposition to that petition was not filed until October 7, 2002. By that time, the Zimbabwe court had issued its judgment in the Zimbabwe divorce action ordering mother to return the children to Zimbabwe by October 31, 2002, or else custody would be awarded to father. In her opposition to fathers petition for enforcement of the February 2002 Zimbabwe order, mother pointed out, among other things, that the February 2002 order was only a temporary order that had been replaced by the Zimbabwe courts final judgment of October 1, 2002. Father argued in reply that the October 2002 judgment from the Zimbabwe court had merely ratified the February 2002 interim order.
In her opposition to enforcement of the February 2002 custody order, mother also asked that the trial court continue its emergency jurisdiction pending a hearing on the best interests of the children. Again mother alleged that conditions in Zimbabwe made it unsafe for the children to live there. Mother also asserted that father was no longer living in Zimbabwe.
A hearing was held October 16, 2002, on fathers petition to enforce the Zimbabwe custody order. The focus of the oral argument was mothers request that the trial court take emergency jurisdiction again. The court denied that request, ruling that mothers remedy was to seek modification from the Zimbabwe court and to let that court decide whether the country was too dangerous and whether father was in fact no longer living there. The trial court ordered the Zimbabwe custody order enforced. That is, the trial court ordered mother to return with the children to Zimbabwe no later than October 31, 2002, or deliver them to the fathers brother as a "relinquishment of her custody of the children to [father] under the Zimbabwe order."
The court commented that ". . . I have been following whats been going on in Zimbabwe by way of television reports, by way of newspaper reports. I am horrified at what is happening there. . . . [¶] But I can be horrified by that and I still have to follow the law, which is [that this] court may take emergency jurisdiction regarding custody of minor children up to the point where the home state has the opportunity and both parents have the opportunity to present evidence, that that evidence be heard, and that once that evidence is heard, that that court makes a decision, and then this court no longer has anything to say about it."
Motions to Vacate or Stay Enforcement Order
On October 29, 2002, mother moved to vacate the trial courts order enforcing the registered custody decree or, in the alternative, to stay enforcement pending registration of the October 2002 Zimbabwe judgment and a determination of the validity of that judgment. Mother argued that the registered order of February 2002 that had been ordered enforced by the trial court had been superseded by the October 2002 custody order, which had not been registered. The hearing was deferred until November 20, 2002. The trial court denied mothers motion to vacate or stay the enforcement order.
Mother had filed her notice of appeal on November 8, 2002, from the order enforcing the Zimbabwe custody order. After her motion to vacate or stay the enforcement order was denied, mother again sought an order from the trial court staying the order of enforcement pending appeal. The trial court denied the request and declined any further assumption of emergency jurisdiction.
DISCUSSION
I. Registration and Enforcement of Foreign Custody Order
The UCCJEA establishes a procedure for the recognition and enforcement of custody orders from other states and countries. (Fam. Code, §§ 3405, subd. (b), 3441-3454.) The first step in the procedure is to register the out-of-state custody order with the California court. (§ 3445.) Registration consists of filing the custody order as a foreign judgment and is essentially a ministerial act by the court upon receipt of certain documentation. (§ 3445, subds. (a) & (b).) The remedy of the nonregistering party is to request a hearing to contest the validity of the registered order. The burden is then on the contesting party to establish one of the narrowly-defined defenses to registration. (§ 3445, subd. (d).) If, after notice and hearing, the court confirms the registered order, the parties are precluded from further contest of the order with respect to any matter that could have been asserted. (§ 3445, subd. (f).)
All undesignated section references are to the Family Code.
The court will confirm the registered order unless the person contesting registration establishes (1) that the issuing court did not have jurisdiction under the UCCJEA, (2) that the child custody order sought to be registered has been vacated, stayed, or modified by a court having jurisdiction to do so, or (3) that the person contesting registration had no notice of the proceedings in the issuing court. (§ 3445, subd. (d).) Presumably, if the party contesting registration seeks to challenge the foreign custody order on grounds not specified in the statute, that party must seek modification from a court with jurisdiction to modify. (See part IV, post.)
Here, father registered the February 2002 custody order. Mother contested the registration, but the trial court confirmed the registration. Although mother initially argued below that she had no notice of the February 2002 custody order, she later withdrew that argument. She makes no challenge in this appeal to the registration and confirmation of the February 2002 custody order.
The second step is to enforce the registered custody order. (§§ 3446, 3448.) The party seeking enforcement must petition the court. (§ 3448, subds. (a) & (b).) The burden lies with the respondent to establish one of only two recognized defenses to enforcement of the order: (1) the child custody order has not been registered and confirmed or (2) the registered custody order has been vacated, stayed or modified. (§§ 3448, subd. (d), 3450, subd. (a).)
In the present case, upon fathers motion for enforcement of the registered February 2002 Zimbabwe custody order, mother asserted, among other things, that the temporary order of February 2002 had been replaced by the October 2002 final judgment. She reiterates that point on appeal, and we agree: the trial court erred in failing to take account of that defense to the enforcement of the February 2002 order.
At the outset, we note that mother seems uncertain whether it was the February 2002 order or the October 2002 judgment that was enforced by the trial court. Father, on the other hand, insists that it was the February 2002 order that was enforced, and he is correct. Fathers petition sought enforcement only of the registered February 2002 custody order. The confusion stems from certain oral remarks at the hearing. Fathers counsel indicated that he "would not object" to an enforcement order mirroring the Zimbabwe trial courts October 2002 judgment setting a deadline of October 31, 2002, for return of the children. And the trial courts remarks suggest an order enforcing the October 2002 judgment: "[P]lease understand that the order from Zimbabwe will be enforced, and that order says October 31." However, the trial courts written order filed October 29, 2002, reflects an intention to enforce the "registered order," which, of course, is the February 2002 order. We will construe the trial courts order as enforcing the February 2002 custody order.
The registered February 2002 order was on its face a "provisional order" to mother to show cause why a final order should not be made granting interim custody to father. The order informed mother that if she did not file opposition to confirmation of the provisional order, the matter would be set for hearing as an unopposed application for confirmation of the provisional order. Yet, no subsequent order of confirmation was ever made. In its statement of decision, the Zimbabwe trial court characterized the February 2002 custody decree as "still a provisional order which has not been confirmed." Moreover, the February 2002 custody order directed mother to return with the children to Zimbabwe as "interim relief" pending trial. Trial on the Zimbabwe divorce action was held beginning July 22, 2002, and the Zimbabwe court issued its judgment on October 1, 2002. By October 16, 2002, when the trial court ruled that the Zimbabwe custody order should be enforced, the February 2002 custody order had been replaced by the judgment.
The trial court seemed to recognize the point at an earlier stage. At the hearing of June 13, 2002, at which the trial court accepted temporary emergency jurisdiction, the trial court acknowledged that its emergency jurisdiction over custody extended only until July 22, 2002, and "[a]fter that, if there is a registration of a new order, then I will enforce that one, unless and until it becomes necessary to take a look at emergency jurisdiction."
Under the UCCJEA, a temporary custody order qualifies as a child custody determination for registration and enforcement no less than a permanent order. (§§ 3402, subd. (c), 3445, 3446.) However, once the temporary order is modified it can no longer be enforced. (§§ 3443, subd. (a), 3448, subd. (d)(2), 3450, subd. (a)(2), 3453.) A "modification" is broadly defined in the UCCJEA as a child custody determination that "changes, replaces, supersedes, or is otherwise made after a previous determination concerning the same child, whether or not it is made by the court that made the previous determination." (& sect; 3402, subd. (k).) Obviously the custody determination made in the October 2002 judgment was made "after" the February 2002 custody order. The October 2002 judgment also replaced and superseded the previous "interim" custody order of February 2002. We are persuaded that the February 2002 custody order should not have been enforced, and we will reverse the order enforcing it.
We are mindful of the undisputed fact that the substance of the custody order of February 2002 is basically identical to the substance of the custody determination in the judgment of October 2002. Both provide for custody to the mother only upon the condition that she return with the children to Zimbabwe. The orders differ in that the October 2002 judgment adds a deadline of October 31, 2002, for return of the children to Zimbabwe. An order enforcing the October 2002 custody determination would be no different from the trial courts order enforcing the February 2002 order.
The October 2002 judgment adds additional conditions to mothers continued custody that are not challenged by mother: the children are to be examined and counseled by a named "curator-ad-litem," who is to make recommendations to the court concerning fathers visitations and report any interference by mother.
We recognize that the lack of registration and confirmation alone is not an impediment to enforcement of the October 2002 judgment. Under the UCCJEA, an out-of-state custody order will be enforced unless the respondent establishes that the custody order has not been registered and confirmed "and one of the following is true: (A) The issuing court did not have jurisdiction under Chapter 2 (commencing with Section 3421). [¶] (B) The child custody determination for which enforcement is sought has been vacated, stayed, or modified by a court of a state having jurisdiction to do so . . . . [¶] (C) The respondent was entitled to notice, but notice was not given in accordance with the standards of Section 3408 in the proceedings before the court that issued the order for which enforcement is sought." (§ 3450, subd. (a)(1), italics added.) As we see it, the absence of registration and confirmation is not fatal to enforcement of a child custody order. In a sense, the statute establishes a harmless error standard. The out-of-state custody order will still be enforced, though it has not been registered and confirmed, unless the order suffers from one of the defects that would have been a basis for failing to confirm the registration of the order. (Compare § 3445, subd. (d) with § 3450, subd. (a)(1).)
The fact remains that the October 2002 judgment was not the subject of the enforcement proceeding below. Fathers petition for enforcement was directed only at the February 2002 custody order, and father continues to insist, as discussed above, that the trial courts order enforces that custody decree. No proceedings were ever held before the trial court on whether the custody determination in the October 2002 Zimbabwe judgment was entitled to registration and confirmation or to enforcement without registration. Unless and until father seeks enforcement of the October 2002 custody order, the enforceability of that decree is not before us. We must leave for another, more appropriate case the questions whether the October 2002 Zimbabwe custody decree is entitled to registration (§§ 3445, subd. (d), 3450, subd. (a)); whether the Zimbabwe judgment meets the jurisdictional standards of the UCCJEA (§ 3405, subd. (b)); and whether the child custody laws of Zimbabwe violate fundamental principles of human rights (§ 3405, subd. (c)).
II. The Hague Convention
For guidance to the trial court, we reject mothers argument regarding the Hague Convention on the Civil Aspects of International Child Abduction (1980) (hereafter Hague Convention).
The Hague Convention is a treaty between nations that provides a civil mechanism for the prompt return of children who have been wrongfully removed from their country of habitual residence. The only function of a proceeding under the Hague Convention is to decide whether a child should be returned to the country of the complaining parent; the Hague Convention does not govern the merits of custody disputes. (Hague Convention, arts. 16, 19; Friedrich v. Friedrich (6th Cir. 1996) 78 F.3d 1060, 1063.)
The United States has ratified the treaty and implements it through the federal International Child Abduction Remedies Act (42 U.S.C. § 11601 et seq.). Zimbabwe has acceded to the Hague Convention. (For a list of countries contracting to the Hague Convention, go to <www.hcch.net/e/status/abductoverview_e.xls> for a discussion of the distinction between ratification of and accession to the treaty, see Gonzalez v. Gutierrez (9th Cir. 2002) 311 F.3d 942, 944, fn. 2.)
The Hague Convention procedures allow the complaining parent to apply to the "Central Authority" of a state or country (e.g., the Cal. Atty. Gen. or the U.S. State Dept.) to attempt voluntary relinquishment by the absconding parent. (Hague Convention, arts. 7-10; 42 U.S.C. § 11606; see Gonzalez v. Gutierrez, supra, 311 F.3d at pp. 944-945.) Or the parent may petition to a court for an order compelling return of the child. (Hague Convention, arts. 11-13; 42 U.S.C. § 11603, subd. (b).)
As mother initially emphasized below, father did not seek relief under the Hague Convention, and justifiably so. The threshold requirements for invoking the Hague Convention procedures include a showing that the child was removed from the country "wrongfully," i.e., from the parent who was exercising lawful custody rights, with or without an existing custody order. (Hague Convention, art. 3; 42 U.S.C. § 11603, subd. (e)(1)(A); Shalit v. Coppe (9th Cir. 1999) 182 F.3d 1124, 1127-1128; Wipranik v. Superior Court (1998) 63 Cal.App.4th 315, 321.) The Hague Convention seeks only to reinstate the status quo as it existed before the wrongful removal. Hence, removal of a child from the country of habitual residence is not "wrongful" unless the complaining parent was exercising lawful custody rights "immediately before the removal." (Hague Convention, art. 3; Friedrich v. Friedrich, supra, 78 F.3d at p. 1064.) Visitation rights under a custody order are not tantamount to custody rights under the Hague Convention, and a parent with only visitation rights cannot invoke the Hague Convention to secure return of a child. (Gonzalez v. Gutierrez, supra, 311 F.3d at pp. 948-950, 954; compare Hague Convention, ch. III, arts. 8-20 with ch. IV, art. 21.)
Here, as mother readily recognizes, the children were not wrongfully removed within the meaning of the Hague Convention. Mother left Zimbabwe with the children in December 2001 or January 2002. At the moment of removal, the parents were living apart and mother had physical custody. Within the pending divorce action in Zimbabwe, father had requested that custody be awarded to mother, and he had been granted only visitation rights. The Hague Convention does not apply here.
Not until February 2002—after the children were removed from Zimbabwe—did the father obtain an interim order from the Zimbabwe court compelling mother to return the children to Zimbabwe pending trial. Such a "chasing order" (a postremoval order commanding return of the child to the country) is irrelevant within a Hague Convention proceeding, because it comes after the time of removal. (Walton v. Walton (S.D.Miss. 1996) 925 F.Supp. 453, 458.)
When, as here, the Hague Convention does not apply, the complaining parents recourse is to commence a proceeding in the country to which the child has been taken, seeking an order for return of the child. (See Hogoboom & King, Cal. Practice Guide: Family Law (The Rutter Group 2003) § 7:655, p. 7-230.2.) Father took that route here. He obtained an order from the Zimbabwe court compelling return of the children to Zimbabwe and then sought to enforce that order in California.
Not until mothers motion to vacate the enforcement order did she herself assert that the Hague Convention should apply so as to give her certain arguments against enforcement of the Zimbabwe custody decree.
Undaunted by this essential point, mother nonetheless argues that she is entitled to raise certain defenses provided by the Hague Convention against the order compelling return of the children to Zimbabwe. That is, mother argues that because father had only visitation rights at the time the children were removed he cannot obtain an order for the return of the children to Zimbabwe. Further, mother argues that because California has become the childrens habitual residence the Zimbabwe court no longer has jurisdiction to order the children returned to Zimbabwe. And, finally, mother relies on express exceptions in the Hague Convention for an order of return: "there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation" (Hague Convention, art. 13(b)); "the child objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of its views" (Hague Convention, art. 13); and "[t]he return of the child . . . would not be permitted by the fundamental principles of the requested State relating to the protection of human rights and fundamental freedoms" (Hague Convention, art. 20).
Under the Hague Convention, an order for return of the child must be made within one year after the wrongful removal. If more than a year has elapsed, the child can still be ordered returned "unless it is demonstrated that the child is now settled in its new environment." (Hague Convention, art. 12.)
These arguments are irrelevant and need not be addressed. The Hague Convention has nothing to do with the merits of a custody dispute. (Hague Convention, arts. 16, 19.) The custody proceeding was part of the divorce action initiated in Zimbabwe, and the Zimbabwe court unquestionably had jurisdiction to decide the custody issue. The Zimbabwe court resolved the dispute by awarding custody to mother provided that she returned with the children to Zimbabwe so that father could have frequent contact with the children. An order of the California court enforcing that order is unaffected by the Hague Convention.
III. Temporary Emergency Jurisdiction
The UCCJEA seeks to ensure that at any one time only one state will have jurisdiction to adjudicate child custody and visitation. (§§ 3422, 3423.) The physical presence of the child within the state is neither necessary nor sufficient to give a state jurisdiction to make a custody determination. (§ 3421, subd. (c).) The basic plan of the UCCJEA is that exclusive jurisdiction for making an initial custody determination lies with the childs "home state"—i.e., the state where the child was living at the commencement of the custody proceeding. (§§ 3402, subd. (g), 3421, subd. (a)(1).) And that exclusive jurisdiction continues until the home state relinquishes jurisdiction or the child and both parents move out of the state. (§ 3423.)
At the same time, the UCCJEA provides a major exception to the general scheme of limiting jurisdiction over child custody to a single court. Even though jurisdiction rests with another state, a California court may nevertheless exercise jurisdiction if the child is present in California and, as relevant here, the exercise of jurisdiction is necessary in an emergency to prevent mistreatment or abuse. (§ 3424, subd. (a).) But the assumption of emergency jurisdiction is "temporary." (§ 3424, subd. (a).) If, as here, a child custody proceeding is pending in another state or if another state has made a custody order that is entitled to be enforced, an assumption of emergency jurisdiction must expressly be time-limited: "[A]ny order issued by a court of this state under this section must specify in the order a period that the court considers adequate to allow the person seeking an order to obtain an order from the state having jurisdiction under Section 3421 to 3423, inclusive. The order issued in this state remains in effect until an order is obtained from the other state within the period specified or the period expires." (§ 3424, subd. (c); In re C. T. (2002) 100 Cal.App.4th 101, 108.) And the California court must immediately communicate with the other court "to resolve the emergency, protect the safety of the parties and the child, and determine a period for the duration of the temporary order." (§ 3424, subd. (d); C. T., at p. 110.)
Here, the trial court granted mothers petition for temporary emergency jurisdiction. On June 13, 2002, the court stayed the February 2002 Zimbabwe custody order until July 22, 2002, the date of trial on the divorce action, to allow mother time to seek a different custody order from the Zimbabwe court. Mother complains on appeal that the trial court erred in making such a temporary order; she contends the stay of the order compelling return of the children to Zimbabwe should have been extended as long as the children and mother remained at risk of harm from abuse by father and from conditions in Zimbabwe.
We reject fathers responding argument that the duration of the emergency jurisdiction is not before us in this appeal. Father contends that because mother did not appeal from the order granting temporary emergency jurisdiction she cannot now complain about the terms of that order. We disagree. The order from which mother appeals is the order enforcing the Zimbabwe custody order. That order was also an order denying mothers request to reinstate emergency jurisdiction. The trial courts ruling on the duration of the emergency jurisdiction is subject to our review.
We also reject, however, mothers argument that the trial court erroneously limited the duration of its emergency jurisdiction. Mothers initial request to the trial court to take emergency jurisdiction asked for a limited stay of the Zimbabwe custody order: "for a reasonable period of time pending the outcome of proceedings pending in Zimbabwe concerning such custody." The trial court granted that request and took jurisdiction until the date of trial in Zimbabwe. Mother cannot complain on appeal that she received exactly what she asked for.
We construe mothers argument to be directed not at the expressly limited duration of the emergency jurisdiction assumed by the trial court but rather at the refusal of the trial court to take emergency jurisdiction thereafter. At the hearing held October 16, 2002, the trial court denied mothers request to reinstate emergency jurisdiction. The court did the same in January 2003 upon mothers request for a stay pending appeal. The question, then, is whether the trial court properly refused to extend its jurisdiction beyond the initial period.
Mother relies on In re Nada R. (2001) 89 Cal.App.4th 1166, in which an order granting custody to the father had been issued by a Saudi Arabian court. The father subsequently took the children to Florida, and the mother then brought them to California. The California juvenile court exercised temporary emergency jurisdiction and placed the children with the mother on the ground that the children were at risk of physical abuse from the father. The appellate court agreed with the father that an exercise of emergency jurisdiction gave the juvenile court no power to issue a permanent custody order, but the court held that the juvenile court could extend its emergency jurisdiction as long as the risk to the children remained. (Id. at pp. 1174-1175.)
That case was subsequently distinguished in In re C. T., supra, 100 Cal.App.4th at page 113, in which the court observed that in Nada R. there was no evidence that the Saudi Arabian court would address the urgent problems of physical abuse by the father. (There was no action pending in Saudi Arabia, and all the parties had moved out of that country.) Hence, the C. T. court reasoned that the juvenile court in Nada R. actually had jurisdiction to modify the Saudi Arabian order and its assumption of jurisdiction was independent of the assumption of temporary emergency jurisdiction. In contrast, in C. T., the Arkansas court was willing and able to address the custody issue. Moreover, the emergency had ended upon removal of the children from the fathers custody. Hence, the C. T. court held that the California trial court properly terminated its emergency jurisdiction.
Like the court in C. T., we decline to read Nada R. so as to give California courts authority to take emergency jurisdiction beyond the statutory time limits. In any event, as in C. T., the present case is distinguishable from Nada R. The Zimbabwe court had taken jurisdiction of the custody issue and was in a position to decide whether the children were at risk of harm upon a return to Zimbabwe. The California trial court found that the period from June 13, 2002 (the date it took emergency jurisdiction), to July 22, 2002 (the date trial was set to begin in Zimbabwe), was adequate to allow mother to obtain a new order from the Zimbabwe court. As it was, the emergency jurisdiction was effectively extended to January 21, 2003, when the trial court ultimately denied mothers request for a stay of the enforcement order and further denied her motion to reinstate emergency jurisdiction. In all those months, mother took no steps to seek relief from the Zimbabwe court. She did not appeal the judgment that was rendered by the Zimbabwe court in October 2002. Nor did she seek modification of the Zimbabwe custody order or present evidence to the Zimbabwe court that the children would be endangered by a return to Zimbabwe. The trial court properly concluded that an emergency no longer existed to justify a renewed assumption of emergency jurisdiction.
Mother further complains that the trial court did not consult with the Zimbabwe court as required by statute. We agree the trial court erred. However, the statutory directive to communicate with an out-of-state court has been held to be directory rather than mandatory inasmuch as there is no penalty for noncompliance. Accordingly, a trial courts failure to communicate with a foreign court is harmless error when the complaining party has suffered no prejudice. (In re C. T., supra, 100 Cal.App.4th at p. 111.)
Here, we can discern no prejudice to mother from the trial courts decision not to communicate with the Zimbabwe court. The trial court understood its statutory obligation but declined to communicate with the Zimbabwe court. In its ruling on June 13, 2002, granting emergency jurisdiction, the court concluded that such communication was unnecessary. The trial court knew from the Zimbabwe courts order of June 3, 2002, that the Zimbabwe court was taking jurisdiction of the custody issue within the divorce action and that trial was set to start in Zimbabwe on July 22, 2002. The trial court concluded that mother would have the opportunity to present her case to the Zimbabwe court, including issues regarding the safety of the children. In its later rulings denying emergency jurisdiction, the trial court found an emergency no longer existed in that mother had already been given the chance to seek relief from the Zimbabwe court. Further, the court found in its most recent ruling on mothers request for a stay pending appeal that, in accordance with the finding of the Zimbabwe court, there was no credible evidence of any mistreatment or abuse of the mother or the children. Under these circumstances, there was no need to resolve an emergency, protect the safety of the children, or determine the duration of Californias emergency jurisdiction. The failure of the trial court to communicate with the Zimbabwe court was harmless error.
We note that in connection with mothers motion to vacate the enforcement order, father joined mothers request that the trial court communicate with the Zimbabwe court. Father wanted to forestall any appellate argument by mother that the trial court had failed to fulfill the statutory requirement.
IV. Modification
Although we have concluded that the trial court properly declined to reinstate emergency jurisdiction, our opinion should not be construed as precluding an assumption by the trial court of modification jurisdiction. Under the UCCJEA, a courts jurisdiction to modify an existing custody order from another state is limited, but it is not nonexistent. To modify an out-of-state custody order, the California court must have jurisdiction to make an initial custody determination. (& sect; 3423.) That is, the California court must be the home state of the child at the commencement of the modification proceeding. (§ 3421.) After the court of another state has made an initial custody determination, that court has exclusive, continuing jurisdiction, and a California court may not modify the custody order unless the other state relinquishes jurisdiction or the child and both parents no longer reside in the other state. (§ 3423.)
In the present case, by the time of the hearing on fathers petition to enforce the Zimbabwe custody order, there was conflicting evidence on whether father had moved out of Zimbabwe and was residing in South Africa. Mother and the children, of course, were living in California. The record does not reveal any direct request by mother made to the California trial court for modification of the Zimbabwe custody order. Her requests have been confined to requests to take emergency jurisdiction. However, father did raise the specter of modification by arguing in support of his petition for enforcement of the Zimbabwe decree that the California court had no power to modify the Zimbabwe order.
In her petition for writ of supersedeas, mother argued to this court that once the trial court terminated its emergency jurisdiction the trial court had no jurisdiction to modify.
The trial court, too, acknowledged the issue but declared, "I dont have the authority to modify this order." The court recognized the evidence that all the parties had moved out of Zimbabwe, but the court decided that the evidence should be presented to the Zimbabwe court: "If things have changed so much since [July 26, 2002,] when the trial ended in Zimbabwe, then it seems to me that the next step in the procedure is before [October 31, 2002,] to file a motion for modification in Zimbabwe to say, these are the facts that have occurred since you made the order that make it impossible for this to happen. Dad is no longer living in Zimbabwe, if, in fact, thats true. Its too dangerous here for mother to come . . . into the country . . . . Whatever else . . . , Zimbabwe is the place to make those decisions." (Italics added.)
For guidance to the trial court in the event mother seeks modification of the Zimbabwe custody order, we observe that the trial court took an overly restrictive view of its jurisdiction to modify. Of course, the California trial court could take modification jurisdiction only if it first found that the children and both parents no longer reside in Zimbabwe and that California is now the childrens home state. (§ 3423.) But contrary to the trial courts comments, the California court does have authority to make those findings and to determine its own jurisdiction to modify the custody decree. (§ 3423, subd. (b); see In re C. T., supra, 100 Cal.App.4th at p. 113 [observing that the juvenile court in Nada R. had modification jurisdiction].) As the drafters of the UCCJEA explained, "If the child, the parents, and all persons acting as parents have all left the State which made the custody determination . . . , considerations of waste of resources dictate that a court in State B, as well as a court in State A, can decide that State A has lost exclusive, continuing jurisdiction." (9 Wests U. Laws Ann. (1999) UCCJEA, com. to § 202, pp. 674-675.) "In other words, a court of the modification State can determine that all parties have moved away from the original State." (Id., com. to § 203, p. 676.)
DISPOSITION
The order filed October 29, 2002, enforcing the registered Zimbabwe custody decree of February 2002 is reversed. Costs on appeal are awarded to appellant.
We concur, JONES, P.J., STEVENS, J.