Opinion
D072691
12-05-2018
M.R., Plaintiff and Appellant, v. S.L., Respondent.
M.R., in pro. per., for Plaintiff and Appellant. No appearance for Defendant and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. D531866) APPEAL from an order of the Superior Court of San Diego County, Matthew C. Braner, Judge. Affirmed. M.R., in pro. per., for Plaintiff and Appellant. No appearance for Defendant and Respondent.
M.R. (Father) appeals from an order in which the superior court surrendered its jurisdiction in a pending child custody case to the state of Montana, where the child at issue had been residing for the previous four years. Father contends the superior court did not follow the appropriate procedures before declining to exercise its jurisdiction and abused its discretion in determining that Montana was the more appropriate venue. We find no procedural error or abuse of discretion and affirm the order.
FACTUAL AND PROCEDURAL BACKGROUND
Father and S.L. (Mother) were married and had a child together. They filed for divorce in 2011 and the Superior Court of San Diego County (the superior court) initially handled the divorce and related child custody matters. In 2013, Mother moved to Montana along with the minor child. Father protested but, in early 2014, the superior court granted Mother's request to relocate and to maintain primary physical custody of the child in Montana. Father was to have visitation with the child for up to three consecutive days every two months in San Diego, and could have additional visitation if he travelled to Montana at his own expense.
In December 2016, Father learned that the Montana Department of Public Health & Human Services (DPHHS) had removed the child from Mother's care due to Mother's involvement in at least one incidence of domestic violence and filed a request for order in the superior court seeking full custody of the minor child in San Diego. Shortly thereafter, in January 2017, Father filed an ex parte application in the superior court seeking the same relief. The superior court denied the ex parte application, finding that it lacked jurisdiction over the minor child, who had resided in Montana since 2014.
Father then filed another ex parte request for an order modifying the current custody order and requested that the court issue a warrant for the return of the minor child to San Diego. The superior court denied that request as well but issued a more detailed written ruling. Therein, the court held that it did have continuing jurisdiction concerning the custody of the child, but also recognized that the case in Montana could potentially divest the court of jurisdiction. The court therefore refused to make any orders regarding custody at that time.
In May 2017, the superior court held a hearing on Father's original request for a change of orders. During the hearing, the court confirmed that the case regarding the removal of the minor child was ongoing in Montana, that Father was represented and had been given the opportunity to state his position in that case, that the court in Montana had placed the minor child in the temporary custody of the maternal grandmother based on a finding of imminent danger, and that there had been a referral through that case for authorities in California to do a home evaluation for Father's home in San Diego. Based on those facts, the court found that Montana had emergency jurisdiction over the child, which prevailed over the superior court's continuing jurisdiction. The superior court therefore refused to make any orders regarding custody but also acknowledged that Montana's emergency jurisdiction would end at some point, and therefore stated that it intended to follow up with the authorities in Montana and set a hearing for a progress review in August 2017.
Shortly before the August hearing, the court handling the matter in Montana (the Montana court) sent the superior court a letter asserting that, pursuant to the considerations set forth in the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA; Fam. Code, § 3400 et seq.), the Montana court was the more appropriate forum for further custody proceedings and inviting the superior court to decline its jurisdiction. The Montana court noted that the child had been residing in Montana for the previous four years and that the Montana court had been presented with extensive evidence and information concerning the circumstances and well-being of the child over that four-year period. In addition, the Montana court confirmed that DPHHS was not seeking any relief against Father in relation to his parental rights and that Father was able to participate in the proceedings via telephone or audio/video conferences.
All further statutory references are to the Family Code.
The superior court confirmed with Father that the Montana court had held a hearing regarding jurisdiction before issuing its letter, at which Father had been represented and was able to testify, and offered Father an opportunity to be heard further in the superior court regarding the findings of the Montana court. The superior court considered Father's arguments but concluded Montana was the more appropriate forum to decide the best interests of the minor child. Accordingly, the superior court held that it no longer had jurisdiction over the minor child. The court noted that it had some concern that Father's interests had not yet been fully considered by the Montana court but that it fully expected the Montana court to recognize Father's rights with respect to the minor child and ordered that a copy of the minute order be sent to the Montana court.
Father appeals.
DISCUSSION
Father contends the superior court did not follow the appropriate procedures before declining to exercise its jurisdiction, thereby violating his right to due process, and that the court abused its discretion by failing to fully consider all the relevant factors.
California has adopted the UCCJEA as the exclusive method for determining the appropriate forum to address issues related to child custody, including both juvenile dependency proceedings and custody determinations between parents. (In re C.T. (2002) 100 Cal.App.4th 101, 106; In re Gloria F. (1989) 212 Cal.App.3d 576, 582; § 3402, subd. (d).) In accordance with the UCCJEA, a state has jurisdiction to determine a child custody dispute if the state was "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 . . . continues to live in [the] state." (§ 3421, subd. (a)(1).) A court that has made an initial child custody determination has exclusive, continuing jurisdiction over the determination thereafter, unless the court "determines that neither the child, nor the child and one parent, nor the child and a person acting as a parent have a significant connection with this state and that substantial evidence is no longer available in this state concerning the child's care, protection, training, and personal relationships." (§ 3422, subd. (a)(1).)
In addition, the UCCJEA permits another state to exercise emergency jurisdiction on a temporary basis, until the appropriate jurisdiction can make a permanent order, when necessary to protect the child. (§ 3424; In re Gino C. (2014) 224 Cal.App.4th 959, 966-967.) If the original home state declines to assert its jurisdiction, however, such temporary emergency jurisdiction may further ripen into continuing jurisdiction. (Id. at p. 967.) A court in California "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," but must first "allow the parties to submit information" and consider "all relevant factors," including those set forth in section 3427, subdivision (b). (§ 3427, subds. (a), (b).) The court may, and in some cases is required to, communicate with the court in the other state in determining whether the other state is a more appropriate forum and may allow the parties to participate in that communication. (§§ 3410, subds. (a), (b), 3424, subd. (d).) "If the parties are not able to participate in the communication, they must be given the opportunity to present facts and legal arguments before a decision on jurisdiction is made." (§ 3410, subd. (b).)
The factors set forth in section 3427, subdivision (b) include: "(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." --------
We review the superior court's order declining to exercise its jurisdiction and deferring to the Montana court for an abuse of discretion and affirm the order so long as it is based on reasoned judgment and complies with the relevant legal principles. (See Pieri v. Superior Court (1991) 1 Cal.App.4th 114, 121-122.)
Here, the superior court followed the procedures set forth in section 3427, subdivision (b) before declining to exercise its jurisdiction in favor of the Montana court. The superior court first determined that Montana had temporary jurisdiction based on the domestic violence allegations and the imminent need to protect the child, but also recognized that jurisdiction would end eventually and, accordingly, reached out to the Montana court. The Montana court responded by conducting a hearing, at which Father was present and allowed to testify, and then sent the California court a detailed letter examining each of the factors set forth in section 3427, subdivision (b), explaining why it believed it was the more appropriate forum in light of those factors, and asking the superior court to decline to exercise its jurisdiction. The superior court confirmed that Father was present at the hearing in Montana and that he had received a copy of the letter, and then allowed Father an additional opportunity to be heard on the matter. Thus, Father had two opportunities to be heard—in the Montana court and in the superior court—and the superior court carefully considered each of the factors set forth in the statute, as well as Father's additional arguments made in the superior court, before determining Montana was the more appropriate forum.
On the merits, the superior court's decision to decline jurisdiction was supported by the letter from the Montana court and the UCCJEA factors discussed therein. As set forth in the letter, Mother and the minor child—who was only six years old at the time—had been living in Montana for the past four years and the Montana court had been presented with extensive evidence concerning the child's circumstances and well-being during that period, particularly in connection with the DPHHS proceedings. By contrast, the superior court in California had not made any substantive decisions regarding custody since issuing the move away order in 2014. Accordingly, the Montana court was in the best position to determine the child's best interests. Further, although the distance between California and Montana was significant, the Montana court noted that only Mother's parental rights were at issue in the DPHHS proceedings and that the Montana court had allowed Father to participate in the proceedings remotely, such that the distance did not weigh in favor of jurisdiction in California. Finally, the Montana court also analyzed the remaining factors set forth in section 3427, subdivision (b) and determined that none of them weighed in favor of jurisdiction in California.
Father asserts, as he did in the superior court, that the Montana court negligently ignored his parental rights, and that the superior court failed to consider the associated hardship he would face if Montana obtained jurisdiction. However, the superior court expressly concluded that there was no evidence indicating the Montana court had treated Father unfairly and that, instead, the Montana court had promptly held a hearing at which it allowed Father to testify after learning of the jurisdictional issue. Moreover, in its letter, the Montana court specifically noted its efforts to ensure Father could participate, remotely if necessary, in any relevant proceedings. Despite this, Father does not point this court to any evidence in the record on appeal to support his assertion that the Montana court unfairly ignored his rights. It is Father's burden, as the appellant, to provide evidentiary support for his claims, and he has not met that burden here. (See Cal. Rules of Court, rule 8.204(a)(1)(B), (C); Aguilar v. Avis Rent A Car System, Inc. (1999) 21 Cal.4th 121, 132; City of Lincoln v. Barringer (2002) 102 Cal.App.4th 1211, 1239.)
As the superior court noted, the Montana court assessed the relevant factors in a detailed and capable fashion. Accordingly, the superior court agreed with the Montana court's conclusion that an objective weighing of the factors supported a finding that Montana was the more appropriate forum. We agree as well and conclude that the superior court did not abuse its discretion by declining to exercise its jurisdiction in deference to the Montana court.
DISPOSITION
The order is affirmed. Each party to bear their own costs.
HUFFMAN, Acting P. J. WE CONCUR: HALLER, J. AARON, J.