• janeaceituno

NEW CASE UPDATE: Appeals Court Limits Grandparent Visitation Under the UCCJEA


Grandparent with children
Photo Credit: Alex Green

On April 20, 2021, the Fourth Appellate District of California rendered an order stating, in brief, that a mother could challenge jurisdiction under the Uniform Child Custody Jurisdiction and Enforcement Act (1997) (UCCJEA; Fam. Code, §§ 3400, et seq.) because she moved to another state with her child and having grandparents present in California was not enough to retain jurisdiction and maintain grandparent visitation. This case presents a roadblock to grandparents seeking to gain visitation with their grandchildren when a parent moves away. FACTS OF THE CASE AND LOWER COURT PROCEEDINGS


Mother's husband and father of her child died tragically in October 2018. On January 15, 2019, father's parents, R.M. and E.M. (Grandparents), filed a petition requesting visitation and filed a jurisdictional declaration in accordance with the UCCJEA stating Minor had lived in San Diego since birth in November 2015. (A. M. v. Superior Court of San Diego County (Cal. Ct. App., Apr. 20, 2021, No. D078117) 2021 WL 1541392, at *1.)


On January 31, 2019 Mother filed an ex parte application to move the child from San Diego to Washington state to be near her parents and other close family members. The family court denied the application on the ground it was “not an emergency.” (A. M. v. Superior Court of San Diego County, supra, 2021 WL 1541392, at *1.)


The parties had family court services mediation on February 13, 2019. Mother was living in Washington with her child by then. In the mediation, Grandparents sought visitation with Minor of four weekends during the year, two weeks during summer and winter breaks, and weekly video calls with Minor. Mother opposed all visitation, objecting to Grandparents’ drinking habits and a paternal great uncle who was a habitual drug user. Mother stated she never had a positive relationship with Grandparents, and that their son had been abusive to her before his death. (A. M. v. Superior Court of San Diego County, supra, 2021 WL 1541392, at *1.)


Trial scheduled for April 22, 2019 did not go forward and instead the court issued a minute order stating it was not “inclined to make any interim orders regarding visitation pending the future hearing date” on June 26, 2019. Before the continued hearing, Mother filed her opposition to the petition and then submitted an ex parte application seeking another continuance because the parties were engaging in settlement discussions. The court granted the application and set the trial for November 6, 2019. (A. M. v. Superior Court of San Diego County, supra, 2021 WL 1541392, at *1.)

The parties then stipulated to reunification therapy. On July 11, 2019, the court entered a stipulated order, providing the parties would “participate in reunification counseling/therapy sessions with a mental health professional” in Washington. On November 6, 2019, the court entered another stipulated order agreeing to a specific therapist and other terms of the therapy. The Court took the November 6, 2019 trial “off calendar without prejudice.” (A. M. v. Superior Court of San Diego County, supra, 2021 WL 1541392, at *1.) On June 24, 2020, the Grandparents filed an ex parte request to set the matter for a two-day trial to determine visitation. Mother opposed the request, and on June 25, 2020 filed her own application for an order terminating the court's jurisdiction under the UCCJEA. She stated she had participated in reunification therapy but the Grandparents' had been unwilling to join. Mother also stated that San Diego was not the proper venue for the case and that she could not afford to travel here for the proceedings. (A. M. v. Superior Court of San Diego County, supra, 2021 WL 1541392, at *2.) Mother stated the court did not have continuing jurisdiction under the UCCJEA because she and her child no longer resided in California, and alternatively, if the court did find jurisdiction it should decline to exercise it on the grounds of inconvenient forum after an evidentiary hearing on the issue. The court denied Mother's application without prejudice and set an evidentiary hearing for September 1, 2020. (A. M. v. Superior Court of San Diego County, supra, 2021 WL 1541392, at *2.) On June 26, 2020, Mother filed a request for order, repeating her assertion that the court did not have continuing jurisdiction over the matter under the UCCJEA and that San Diego was not the proper venue for the case. Grandparents opposed the request. The Court heard the matter on September 23, 2020 and then denied the request. The court stated “there [are] still significant connections to the state, at least the child potentially has that as well” and Grandparents “still reside here and they are the ones seeking and bringing the petition.” (A. M. v. Superior Court of San Diego County, supra, 2021 WL 1541392, at *2.) The Court took Mother to task for not initially contesting UCCJEA jurisdiction. The court noted Mother had conceded jurisdiction at the time the petition was initially filed, that Mother had not raised the jurisdictional issue at the time the case was originally set for trial, and that she had previously entered stipulated proposed orders without challenging the court's jurisdiction. The court set a trial setting conference for December 15, 2020. (A. M. v. Superior Court of San Diego County, supra, 2021 WL 1541392, at *2.) On October 21, 2020, Mother filed an ex parte request for the court to issue Findings and Order After Hearing (FOAH), which the court entered the next day. The order “denies [Mother's] request pursuant to Family Code section 3422” and “finds [Minor], and [Mother] moved to the State of Washington on February 13, 2019, but the court continues to have jurisdiction over this matter as there was no dispute as to initial jurisdiction.” The order further states “there are significant connections to the State of California as the [Grandparents] continue to reside in California and they are the party bringing the petition” and that the court “finds that it never relinquished jurisdiction and the parties never raised the issue at the time the matter was originally set for trial, and therefore finds it does have jurisdiction under the UCCJEA to hear this matter.” (A. M. v. Superior Court of San Diego County, supra, 2021 WL 1541392, at *2.)


On October 23, 2020, Mother filed a petition for writ of mandate and request for a stay challenging the FOAH. Grandparents filed a return and Mother replied. (A. M. v. Superior Court of San Diego County, supra, 2021 WL 1541392, at *2.)


MOTHER’S POSITION


Mother agrees the family court had jurisdiction under the UCCJEA at the time Grandparents filed their petition for visitation. Her position, however, is that after the court's initial custody decision on April 22, 2019 declining to rule on Grandparents' request for visitation, the court was required to make new jurisdictional findings before entering each stipulated order. The court's failure to do so renders those orders void. Alternatively, she contends the court erred by denying her subsequent motion to terminate its jurisdiction under section 3422, subdivision (a)(2). (A. M. v. Superior Court of San Diego County, supra, 2021 WL 1541392, at *2.)


THE GRANDPARENTS’ POSITION


The Grandparents respond that because jurisdiction under the UCCJEA is not fundamental, Mother forfeited her jurisdictional challenge by not challenging the court's initial jurisdiction and agreeing to the stipulated orders. (A. M. v. Superior Court of San Diego County, supra, 2021 WL 1541392, at *2.)

LEGAL ANALYSIS


The UCCJEA controls in this case. UCCJEA jurisdictional requirements must be satisfied whenever a California court is called upon to make either an initial or a modified custody determination.” (A. M. v. Superior Court of San Diego County, supra, 2021 WL 1541392, at *3.) Under the UCCJEA, the state with absolute priority to render an initial child custody determination is the child's home state on the date of commencement of the first custody proceeding or, alternatively, the state which had been his home state within six months before commencement if the child is absent from the home state but a parent continues to live there. (§ 3421, subd. (a)(1).) ‘ “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. ...’ (§ 3402, subd. (g).)” [CITATION] (A. M. v. Superior Court of San Diego County, supra, 2021 WL 1541392, at *3.) Once the court has taken initial jurisdiction under section 3421, it has continuing jurisdiction until one of two things occur: “A court of this 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 this state and that substantial evidence is no longer available in this state concerning the child's care, protection, training, and personal relationships” or “[a] court of this 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 this state.” (§ 3422, subd. (a), italics added.) (A. M. v. Superior Court of San Diego County, supra, 2021 WL 1541392, at *6.)


The Appellate Court ruled that it was clear error for the trial court to deny Mother's request for order and conclude it had continuing jurisdiction under section 3422. The family court disregarded the second clause of section 3422 and looked only to the first, finding that “there are significant connections to the State of California as the [Grandparents] continue to reside in California and they are the party bringing the petition.” It was undisputed that Mother and Minor “do not presently reside in this state.” (§ 3422, subd. (a)(2).) Grandparents’ residence here alone is insufficient to support the court's continued jurisdiction. (See National Conference of Commissioners on Uniform State Laws, UCCJEA, Official Comments to § 202, p. 28 [“[A] remaining grandparent or other third party who claims a right to visitation, should not suffice to confer exclusive, continuing jurisdiction on the State that made the original custody determination after the departure of the child, the parents and any person acting as a parent.”].) The court's failure to consider the undisputed fact that Mother and Minor no longer reside in California warrants reversal. (A. M. v. Superior Court of San Diego County, supra, 2021 WL 1541392, at *6.)


This case is a big blow to grandparents. Essentially, UCCJEA jurisdiction terminates whenever a parent moves away out of state, since they are not “the child’s parents” or “any person acting as a parent.” If you are a grandparent seeking to navigate the family court system when the UCCJEA is involved, schedule a free initial consultation with the Law Offices of Jane Migachyov NOW.