Due to the demographics of California, we frequently deal with issues and complexities affecting transnational families. According to the 2018 estimates of the Public Policy Institute of California, “27% (or 10.6 million) of Californians are foreign born—this share is larger than that of any state” in the country. California also has the fifth youngest population in the country with the median age of 36.7 years. In California, we have young families.
Within the San Francisco Bay Area itself, it is very common to see professionals of diverse national, cultural, and ethnic backgrounds form familial relations grounded in shared values. This interconnectedness itself denotes the spirit of the region. However, we also stumble upon situations where a break in such transnational family units opens the door to complicated disputes attracting competing laws of foreign countries.
It is not uncommon for a spouse/partner to move back to his/her country of citizenship. We have had experiences where a spouse/partner moves back to the country of his/her citizenship and seeks the protection of that country’s Court requiring the other spouse/partner to litigate in a foreign country. Particularly, in custody matters, we are often faced with the dilemma of determining the reach and power of foreign Courts in influencing familial relations in California. Fortunately, most of the countries worldwide have adopted the Hague Convention and recognize the power of foreign sister Courts in governing child custody and support issues. This mutual respect and recognition is executed through detailed guidelines which was discussed in our earlier post titled “Enforcement of foreign child custody orders in California”.
A key point for a Court to exercise its power to determine custody issues, is the “home state” of the child prior to the commencement of any proceedings, either in California or in a foreign country. According to the Uniform Child Custody Jurisdiction and Enforcement Act (“UCCJEA”), for a child six (6) months of age or older, that child’s home state is the state in which a child lived with a parent or a person acting as a parent for at least six (6) consecutive months immediately preceding the filing of the action. For a newborn or a child less than six (6) months of age, the home state is the state in which the child has lived from birth with a parent or a person acting as a parent. As a parent facing custody issues, you want to make sure that your child has lived in California for at least six (6) months before approaching the courts in California. However, if a foreign sister court has legitimate power to determine the issues in the matter, then Courts in California will defer to the other court and enforce foreign custody orders.
However, in very specific and extraordinary situations, the Courts in California may exercise temporary jurisdiction or assume temporary power to determine some pressing and urgent issues. This will apply even when a sister foreign court has already issued custody orders. According to the UCCJEA, California Courts may exercise such temporary jurisdiction: (i) if the child is present in California; and (ii) there is 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.
Please note that California law favors co-parenting and communication between parents. Courts in California also seek to honor and enforce the child custody orders issued by other countries and states. However, Courts in California will step in where there exists an emergency that compromises the safety of a child. This is an extremely treacherous path you will have to navigate because California law penalizes parents who raise false allegations of child abuse or neglect through monetary sanctions and reasonable attorney’s fees incurred in recovering these sanctions. These punitive regulations were made in backlash towards false claims of child abuse by parents seeking to challenge custody orders and derail prior child custody proceedings.
Further, the Courts in California are required by law to immediately communicate with the sister foreign Court that initially issued the child custody order. This procedural requirement enables the Courts in California to receive a full picture of the custody matter and determine the reality of danger. The temporary order will also be for a very short period (even a few hours only), sufficient for the petitioning parent to seek an order from the sister foreign Court. Ultimately under the Hague Convention, it is the home state that will determine the matter.
This opinion is not legal advice and may not apply to your specific situation. Please do not attempt to represent yourself based on this opinion. If you would like to discuss your matter, please reach out to us at [email protected] and [email protected].