NEW CASE UPDATE: Emergency Custody Order Enforced Upon Stay of Foreign Case
On April 9, 2021, the Sixth Appellate District of California rendered an order stating, in brief, that the Court’s exercise of emergency jurisdiction under the UCCJEA was effective while a Chinese custody action was stayed and that the registration of the Chinese order could thus be denied.
In 2016, the trial exercised temporary jurisdiction under the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) (Fam. Code, § 3400 et seq.), and issued custody orders regarding appellant Jiaojiao Zhou's (Zhou) and respondent Sean Wang's (Wang) child, who lived primarily in China. The parties incorporated the order into their stipulated dissolution judgment in 2017. (In re Marriage of Wang Jiaojiao Zhou (Cal. Ct. App., Apr. 9, 2021, No. H046250) 2021 WL 1345524, at *1.) Under the judgment, the child would reside primarily in China but Wang would have extensive visitation.
After the California Judgment was entered, Zhou went to China to get a new custody order. In 2018, a court in China issued a custody order awarding sole custody of the child to Zhou and giving Wang highly limited weekend visitation that was impossible for him to exercise. Zhou registered the custody order in the trial court and Wang opposed it. The trial court then issued temporary emergency orders vacating service of the registration and, after a hearing, denied the registration. Zhou contends China had exclusive jurisdiction to make custody orders under the UCCJEA and that the trial court erred in denying the registration of the order. (In re Marriage of Wang Jiaojiao Zhou, supra 2021 WL 1345524, at *1.)
The court found no error in the trial court's decision to deny registration of the Chinese judgment. UCCJEA JURISDICTION
A few facts about the UCCJEA and how a Court can exercise jurisdiction over custody are helpful to the analysis.
The UCCJEA sets forth several bases for a trial court to exercise jurisdiction to make an initial custody order. (§ 3421.) Most relevant here, the court has custody jurisdiction if it was the home state of the child on the date the custody proceeding commenced. (§ 3421, subd. (a).) “ ‘Home state’ means the state in which a child lived with a parent or a person acting as a parent for at least six consecutive months immediately before the commencement of a child custody proceeding.... A period of temporary absence of any of the mentioned persons is part of the period.” (§ 3402, subd. (g).) Here, the parties conceded that the trial court determined that California did not have jurisdiction to make initial custody orders; Daughter had resided in China for at least six months prior to commencement of the proceedings. (In re Marriage of Wang Jiaojiao Zhou, supra, 2021 WL 1345524, at *4.)
The trial exercised its temporary emergency jurisdiction under section 3424, which affords a California court custody jurisdiction “if the child is present in this state and the child has been abandoned or it is necessary in an emergency to protect the child because the child, or a sibling or parent of the child, is subjected to, or threatened with, mistreatment or abuse.” (§ 3424, subd. (a).) “If there is no previous child custody determination that is entitled to be enforced under this part and a child custody proceeding has not been commenced in a court of a state having jurisdiction under Sections 3421 to 3423, inclusive, a child custody determination made under this section remains in effect until an order is obtained from a court of a state having jurisdiction under Sections 3421 to 3423, inclusive. If a child custody proceeding has not been or is not commenced in a court of a state having jurisdiction under Sections 3421 to 3423, inclusive, a child custody determination made under this section becomes a final determination, if it so provides and this state becomes the home state of the child.” (§ 3424, subd. (b).) The trial court did not rule that the orders would become a final determination if a custody proceeding was not commenced in China and California became Daughter's home state. (In re Marriage of Wang Jiaojiao Zhou, supra, 2021 WL 1345524, at *5.) Wang never raised the issue of California being the daughter’s home state on appeal and therefore lost that ground for consideration by the appellate court. (In re Marriage of Wang Jiaojiao Zhou, supra, 2021 WL 1345524, at *5, FN 5.)
Section 3443 requires California courts to recognize custody determinations issued by other states, “if the latter court exercised jurisdiction in substantial conformity with [the UCCJEA] or the determination was made under factual circumstances meeting the jurisdictional standards of [the UCCJEA] and the determination has not been modified in accordance with [the UCCJEA].” (§ 3443, subd. (a).) The provisions of section 3441 et seq. also apply to custody orders issued by foreign countries “under factual circumstances in substantial conformity with the jurisdictional standards of [the UCCJEA].” (§ 3405, subd. (b).) However, a California court does not have to apply the UCCJEA “if the child custody law of a foreign country violates fundamental principles of human rights.” (§ 3405, subd. (c).) (In re Marriage of Wang Jiaojiao Zhou, supra 2021 WL 1345524, at *5.)
THE COURT PROPERLY DENIED THE REGISTRATION OF THE CHINESE CUSTODY ORDER
Section 3445 sets forth the procedure for registering an out-of-state custody order. Zhou complied with subdivision (a) of section 3445; she submitted the proper Judicial Council form entitled “registration of out of state custody order” Subdivision (b) of section 3445 then required the trial court to file the Chinese judgment and serve notice on Wang, providing him the opportunity to contest the registration. If a parent contests registration, the trial court must hold a hearing, at which it “shall confirm the registered order unless the person contesting registration establishes any of the following: [¶] (1) That the issuing court did not have jurisdiction under Chapter 2 (commencing with Section 3421). [¶] (2) That the child custody determination sought to be registered has been vacated, stayed, or modified by a court having jurisdiction to do so under Chapter 2 (commencing with Section 3421). [¶] (3) That the person contesting registration 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 registration is sought.” (In re Marriage of Wang Jiaojiao Zhou, supra, 2021 WL 1345524, at *5.)
Zhou argued that the trial court erred because it determined it had subject matter jurisdiction over custody. The trial court stated it denied Zhou's request because Zhou had violated the September 2017 judgment in which she had stipulated to obtaining identical custody orders in Chinese. However, the appellate court concluded the trial court properly denied Zhou's request to register the Chinese order because Wang established that the Chinese judgment was stayed pending his appeal. (§ 3445, subd. (b)(2).) (In re Marriage of Wang Jiaojiao Zhou, supra, 2021 WL 1345524, at *6.)
The Chinese order was stayed. Wang submitted analysis and documents from China showing he had appealed the custody order and that the proceedings were frozen. Zhou did not dispute that the order was stayed pending Wang's appeal. Zhou did not object to the trial court considering any of the evidence submitted by Wang. (In re Marriage of Wang Jiaojiao Zhou, supra, 2021 WL 1345524, at *6.)
The Chinese court had jurisdiction to stay the Chinese judgment under section 3421 et seq. Daughter lived with Zhou in China for at least six consecutive months prior to the commencement of the proceedings in 2016 - China was her home state under sections 3402, subdivision (g), and 3421, subdivision (a)(1). For the purposes of the UCCJEA, China retained continuing, exclusive jurisdiction to issue and modify custody orders. Under the UCCJEA, a state that has jurisdiction to make initial custody orders under section 3421 retains exclusive jurisdiction until either: “(1) A court of [the] state 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 [the] state and that substantial evidence is no longer available in [the] state concerning the child's care, protection, training, and personal relationships[; or] [¶] (2) A court of [the] state or a court of another state determines that the child, the child's parents, and any person acting as a parent do not presently reside in [the] state.” (§ 3422, subd. (a).) The record shows that Daughter and Zhou remained in China at the time the Chinese court issued its judgment, rendering these provisions inapplicable. Unless China declined to exercise its jurisdiction (see § 3421, subd. (a)(3)), China had jurisdiction over custody under the UCCJEA, and thus had authority to stay its custody orders pending Wang's appeal. (In re Marriage of Wang Jiaojiao Zhou, supra, 2021 WL 1345524, at *6.)
Because the Chinese order was stayed, the trial court properly denied registration of that judgment. (§ 3445, subd. (b)(2).) Pursuant to section 3424, subdivision (b), the custody orders issued by the trial court thus remained in effect until a valid order was obtained from the home state. (See In re Gino C. (2014) 224 Cal.App.4th 959, 966; In re Marriage of Fernandez-Abin & Sanchez (2011) 191 Cal.App.4th 1015, 1041.) The August 2018 order also served to enforce the trial court's prior orders until the litigation in China was resolved and the case was no longer stayed on appeal. In the absence of a valid order from the Chinese court (i.e., an order that had not been stayed), such enforcement was appropriate. (In re Marriage of Wang Jiaojiao Zhou, supra, 2021 WL 1345524, at *6.)
The appellate court enforced the trial court’s order. THE UPSHOT
The upshot of this case is that the UCCJEA is very complex. Zhou and the trial court argued different theories of the case but the appellate court took a very different approach. A litigant has to cover every angle in their case.
Wang’s victory may actually be pyrrhic. If the Chinese court affirms its custody order, the California court’s exercise of emergency jurisdiction dissolves away. Wang should have made an argument for his daughter’s home state to have been changed, as difficult as that would have been. Additionally, and the Court addressed this in Footnote 6, Wang only on appeal alleged the Chinese judgment was not in substantial conformity with the UCCJEA. He did not make that argument in the trial court and the appellate court did not consider the argument on appeal. (In re Marriage of Wang Jiaojiao Zhou, supra, 2021 WL 1345524, at *5, FN 6.)
How could Wang have avoided these blunders and gotten a better appellate decision? Wang needed an attorney! Unfortunately for Wang, he was self-represented.
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