Opinion
NOT TO BE PUBLISHED
ORIGINAL PROCEEDING; petition for writ of mandate. L.A.S.C. No. YD053906, Michael P. Linfield, Judge.
Sabaitis O’Callaghan LLP, Michael T. O’ Callaghan and Mark J. Furuya for Petitioner.
No appearance for Respondent.
Miho Hirai, in pro. per., for Real Party in Interest.
OPINION AND ORDER GRANTING PEREMPTORY WRIT OF MANDATE
THE COURT
The trial court abused its discretion in denying Mikihiro Hirai’s motion to stay/dismiss for inconvenient forum. The proper forum for child custody issues is Japan. Accordingly, the petition is granted.
As there is not a plain, speedy and adequate remedy at law, and in view of the fact that the issuance of an alternative writ would add nothing to the presentation already made, we deem this to be a proper case for the issuance of a peremptory writ of mandate “in the first instance.” (Code Civ. Proc., § 1088; Lewis v. Superior Court (1999) 19 Cal.4th 1232, 1240-1241; Alexander v. Superior Court (1993) 5 Cal.4th 1218, 1222-1223; Ng v. Superior Court (1992) 4 Cal.4th 29, 35.) Opposition was requested and the parties were notified of the court’s intention to issue a peremptory writ. (Palma v. U.S. Industrial Fasteners, Inc. (1984) 36 Cal.3d 171, 180.)
FACTUAL AND PROCEDURAL BACKGROUND
Mikihiro (Husband) and Miho Hirai (Miho) (Wife) are Japanese citizens married in Japan on May 3, 2000. The parties have one minor child, Kyoka, born in August 2003 in Japan. Kyoka spent her first two years of life in Japan.
In 2005, Mikihiro came to the United States with Miho and Kyoka under a temporary L1 Intercompany Transfer Visa to work for Toyota in California. The visas, which expired on June 1, 2008, were temporary in nature.
In January 2008, Miho expressed her desire to divorce Mikihiro. In March, Miho personally provided Mikihiro with a Japanese “Divorce Notice,” filled out and signed by her, evidencing her intention to get a divorce in Japan. In or around the same time, Mikihiro was informed by his employer to return to Japan by May.
On or about March 29, Mikihiro came to believe that his wife Miho was having an affair. On April 12, Mikihiro brought Kyoka back to Japan to stay with his parents.
On April 14, while in Japan, Mikihiro filed a dissolution action against Miho with the Nagoya Prefecture Family Court. The application for divorce was served on Miho by the Japanese court. A mediation hearing for the Japanese divorce case was scheduled for June 12.
Because of the time difference, April 14 in Japan is April 13 in California.
On April 14, in Los Angeles Superior Court, Miho filed an action for marital dissolution. When Mikihiro returned to California on April 15, he discovered that Miho had moved out of the parties’ apartment and withdrew money from their joint account.
On April 25, Miho filed an ex parte application for an order to show cause on various issues, including child custody. At the ex parte hearing, the trial court made the following ruling: “The Court finds that even though Petitioner/Father filed for dissolution of marriage in Japan that this Court has jurisdiction to make orders regarding the parenting plan. [¶] It is noted that the minor child is with paternal grandparents in Japan. [¶] ORDER ON EX PARTE ORDER TO SHOW CAUSE is signed and filed this date and incorporated herein by reference. [¶] The matter is set for hearing on 5/13/08 at 8:30 a.m. in this department.”
Mikihiro reports that, even though it was not in the minute order, the court ordered the minor back to California.
On or about April 27, Miho flew to Japan to get her daughter. The paternal grandparents would not release the minor to her. Miho went to the Japanese court and was told that the Japanese court could not enforce the California court orders and the custody issues should be resolved either through the mediation session scheduled for June 12 or a subsequent court hearing in Japan.
Mikihiro decided to end the marriage. On April 28, he executed and filed the Divorce Notice with the Nagoya Prefecture City Ward. The Divorce Notice was accepted by the City Hall and Mikihiro received a “Certificate of Acceptance” indicating their divorce was finalized.
On May 8, Miho filed a complaint in Japan contesting the Japanese divorce decree.
On May 8, Mikihiro filed, in the Los Angeles Superior Court, a motion to stay/dismiss for inconvenient forum on the grounds that Japan, not California, was the proper forum for litigation of child custody issues.
On May 19, Miho appeared before the Japanese civil court which stated that it did not have jurisdiction over a child custody case and therefore would not be hearing the matter. Shortly thereafter, Miho filed for similar relief with the Nagoya Prefecture Family Court in Japan. Mikihiro was summoned by the Japanese court to appear on June 12 regarding temporary child custody.
On June 11, at the Order to Show Cause hearing, in the Los Angeles Superior Court, the trial court found that because of the Japanese divorce decree, there was no res to adjudicate regarding the parties’ dissolution. But, the trial court further found that California is the home state of the minor child under the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) and on that basis denied the motion to stay/dismiss. The court ordered that Kyoka be brought to California within seven days. The order was entered on July 11.
Since the date of the hearing, the Japanese court set several dates for which a Japanese child custody evaluator was to observe, interview and investigate the child custody situation regarding Kyoka. The parties are currently awaiting the Japanese court’s decision regarding child custody and Miho’s petition regarding the validity of the divorce decree in Japan. Kyoka remains in Japan.
DISCUSSION
A forum court has discretion to order a forum non conveniens stay. (§ 3427, subd. (a); Marriage of Fox (1986) 180 Cal.App.3d 862, 870.) A trial court’s decision “will not be reversed on appeal absent a clear abuse of discretion.” (In re Marriage of Leonard (1981) 122 Cal.App.3d 443, 469.)
The issue presented in this writ petition is whether California is an inconvenient forum under Family Code section 3427.
Unless otherwise indicated, all further statutory references are to the Family Code.
Section 3427 provides:
“(a) A court of this state has the jurisdiction under this part to make a child custody determination may decline to exercise its jurisdiction at any time if it determines that it is an inconvenient forum under the circumstances and that a court of another state is a more appropriate forum. The issue of inconvenient forum may be raised upon motion of a party, the court’s own motion, or request of another court.
“(b) Before determining whether it is an inconvenient forum, a court of this state shall consider whether it is appropriate for a court of another state to exercise jurisdiction. For this purpose, the court shall allow the parties to submit information and shall consider all relevant factors, including:
“(1) Whether domestic violence has occurred and is likely to continue in the future and which state could best protect the parties and the child.
“(2) The length of time the child has resided outside this state.
“(3) The distance between the court in this state and the court in the state that would assume jurisdiction.
“(4) The degree of financial hardship to the parties in litigating in one forum over the other.
“(5) Any agreement of the parties as to which state should assume jurisdiction.
“(6) The nature and location of the evidence required to resolve the pending litigation, including testimony of the child.
“(7) The ability of the court of each state to decide the issue expeditiously and the procedures necessary to present the evidence.
“(8) The familiarity of the court of each state with the facts and issues in the pending litigation.
“(c) If a court of this state determines that it is an inconvenient forum and that a court of another state is a more appropriate forum, it shall stay the proceedings upon condition that a child custody proceeding be promptly commenced in another designated state and may impose any other condition the court considers just and proper.
“(d) A court of this state may decline to exercise its jurisdiction under this part if a child custody determination is incidental to an action for dissolution of marriage or another proceeding while still retaining jurisdiction over the dissolution of marriage or other proceeding.
“(e) If it appears to the court that it is clearly an inappropriate forum, the court may require the party who commenced the proceeding to pay, in addition to the costs of the proceeding in this state, necessary travel and other expenses, including attorney’s fees, incurred by the other parties or their witnesses. Payment is to be made to the clerk of the court for remittance to the proper party.”
The UCCJEA “provides the exclusive method of determining subject matter jurisdiction in custody cases in California.” (In re Stephanie M. (1994) 7 Cal.4th 295, 310.) The UCCJEA applies to any “proceeding in which legal custody, physical custody, or visitation with respect to a child,” is addressed. (§ 3402, subd. (d).) A foreign country is treated as a state of the United States for the purpose of the UCCJEA. (§ 3405, subd. (a).)
The California Supreme Court referred to the Uniform Child Custody Jurisdiction Act (UCCJA) in this case. Effective January 1, 2000, the UCCJEA replaced the UCCJA. (See, In re A.C. (2005) 130 Cal.App.4th 854, 859.)
A court has jurisdiction to make child custody determinations if any of the following under section 3421, subdivision (a) are true: “(1) The state is the home state of the child on the date of the commencement of the proceeding, or was the home state of the child within six months before the commencement of the proceeding and the child is absent from this state but a parent or person acting as a parent continues to live in this state. [¶] (2) A court of another state does not have jurisdiction under paragraph (1), or a court of a home state of the child has declined to exercise jurisdiction on the grounds that this state is the more appropriate forum under Section 3427 or 3428, and both of the following are true: [¶] (A) The child and the child’s parents, or the child and at least one parent or a person acting as a parent, have a significant connection with this state other than mere physical presence. [¶] (B) Substantial evidence is available in this state concerning the child’s care, protection, training, and personal relationships. [¶] (3) All courts having jurisdiction under paragraphs (1) or (2) have declined to exercise jurisdiction on the ground that a court of this state is the more appropriate forum to determine the custody of the child under Section 3427 or 3428. [¶] (4) No court of any other state would have jurisdiction under the criteria specified in paragraph (1), (2), or (3).”
The ‘“home state”’ is defined as the “state in which a child lived with a parent . . . for at least six consecutive months immediately before the commencement of a child custody proceeding.” (§ 3402, subd. (g).)
In this case, the minor child lived in California at least six consecutive months immediately before Miho filed her petition for dissolution of marriage so jurisdiction is not in dispute. But even if a court does have UCCJEA jurisdiction, it is “necessary to determine whether California should exercise its jurisdiction” where there is concurrent jurisdiction. (Plas v. Superior Court (1984) 155 Cal.App.3d 1008, 1018.) Furthermore, the UCCJEA created a mechanism by which the court can decline that jurisdiction if it finds “it is an inconvenient forum under the circumstances” and another state is a “more appropriate forum” for custody determination. (§ 3427, subd. (a).)
We conclude the trial court’s denial of the motion to stay/dismiss for inconvenient forum was an abuse of discretion. We now discuss the relevant factors listed in section 3427, subdivision (b).
Domestic violence is not a factor. Japan has a vested interest in protecting Kyoka, a Japanese citizen. In Japan, Kyoka has a support system of not only her father, but her extended family and a familiar culture, language and society. Japan would be willing to protect their own citizens, while in California, the parties were simply visitors who had temporary visas.
The time Kyoka spent in Japan is significant. Prior to coming to California, Kyoka spent the first two years of her life in Japan. In Japan, Kyoka has both her paternal and maternal grandparents who love and care for her and developed a bond that is not easily broken by a temporary absence in California. While the most recent part of Kyoka’s life was spent in California, it was not substantial enough to negate the significant time spent in Japan.
The distance between California and Japan is inconvenient for all parties. Assuming custody jurisdiction in California would create a strain on all parties involved, including their families, Mikihiro’s employment and especially the minor child. Having Japan assume jurisdiction in this case would ease concerns as there is no additional burden to Miho for litigating the case in Japan. Her parents live in Japan, where she can reside throughout the duration of the litigation. Furthermore, she has no employment, no necessary obligations or ties in California that would be damaged by having to be in Japan.
The degree of financial hardship on the parties litigating in California is severe. The airfare between California and Japan has increased. Should this case need to be fully litigated, it would require many appearances by both parties, including the child, the possible need for a child custody evaluator, other experts, and witnesses from Japan.
The evidence indicates the parties agreed to litigate the case in Japan.
The nature and location of the evidence is in Japan. Under Pieri v. Superior Court (1991) 1 Cal.App.4th 114, 120-121, in determining whether a court should decline UCCJEA jurisdiction, the location of the evidence is given great weight. All of the issues regarding child custody raised by both parties, including Kyoka’s current and future care, protection, training and relationships, involve evidence located in Japan. Should Kyoka be taken to California, the ability of Mikihiro to bond with the minor will be greatly diminished and harmed and any bond between the two at that point will not accurately represent their true relationship. The grandparents are in Japan. All of the evidence regarding Japanese religion, culture, and education is in Japan.
Japan is able to expeditiously determine the issue of custody. The parties are Japanese nationals who have little connection to California other than their temporary residence here. Their family, their assets, Mikihiro’s employment, and the minor child are all present in Japan where a Japanese court can properly adjudicate those issues. There is no evidence that Japan is an unfavorable venue for Miho. Already, she has taken full advantage of remedies and relief available to her in the Japanese courts. Several hearings and observations by a Japanese child custody evaluator have been set and conducted by the Japanese court regarding the child custody issue. Japan is in the midst of a through process of examining the child’s welfare.
Japan is familiar with the facts and issues of the pending litigation.
In this case, contacts with California were minimal as Miho was in California for a limited period of time on a visa. Miho at no time has provided any objective reason why she could not litigate the matter in Japan. She is a resident of Japan, speaks Japanese and seemingly has the resources to travel to Japan. She claims she is going to obtain a student visa, but has not yet done so. No compelling reasons favor California as the forum unless we assume the Japanese courts cannot or will not decide the matter fairly, which we have no reason to do.
DISPOSITION
THEREFORE, let a peremptory writ issue, commanding respondent superior court to vacate its order of June 11, 2008, denying motion to stay/dismiss for inconvenient forum, and to issue a new and different order granting same, in Los Angeles Superior Court case No. YD053906, entitled Miho Hirai v. Mikihiro Hirai.
The temporary stay orders are vacated.
All parties shall bear their own costs.
TMALLANO, P. J., ROTHSCHILD, J.