Case of the Month Archive

Child has no home state, but she does have significant connections to California . . .

In reversal, Third District holds that trial court erred in concluding that India, not California, had UCCJEA home-state jurisdiction over mother’s custody petition, and in granting father’s motion to quash jurisdiction; time child spent in India after custody action was filed there does not count toward establishing home-state jurisdiction

Reema and Vikas Sareen were married in New Delhi, India, on February 17, 2002; he is a U.S. citizen, she is a legal resident. They moved to New York state in July 2002, and their daughter, S., was born there on February 20, 2004. According to Reema, when she, Vikas, and S. left the States on August 20, 2004, Vikas told her that they were going to Switzerland for a vacation. However, on reaching Frankfurt, Germany, they changed planes for a flight to India, and arrived there on August 21. Vikas filed for divorce in the Indian trial court six days later. He followed up on August 30 with a custody petition and an application to restrain Reema from leaving India with S., then returned to the U.S. by himself. Reema alleged that Vikas left her and the baby without financial support, and took her U.S. residency documents and Indian passport, and his daughter’s U.S. passport, with him. Reema tried to get replacement documents for herself and her daughter, but Vikas refused to sign the necessary consent form. In February or March 2005, Reema returned to the U.S. temporarily to obtain replacement documents for herself and S.; she returned to India by the end of March. Reema and S. were unable to leave India until November 5, 2005; they stopped briefly in New York before flying to California, where Reema had family and wished to live.

Meanwhile, the couple’s acrimonious Indian disso had proceeded, with Reema filing a dowry action, and Vikas seeking to change the disso to an annulment on the ground of fraud. In May 2005, the Indian trial court, acting on Reema’s application, ordered Vikas to pay pendente lite child and spousal support, but it did not issue a restraining order preventing Reema from leaving India with her daughter.

In January 2006, Reema filed a petition in the Sacramento County Superior Court, seeking orders for child custody, support, and prevention of child abduction. Vikas fired back a motion to quash jurisdiction, claiming that neither he nor S. had minimum contacts with California, that India had jurisdiction because Reema had illegally kidnapped S. and brought her to California, and that he had not caused an effect in California. In opposition to Vikas’s motion, Reema contended that she did not violate any law or court order of India in moving back to the States, that she was not in India voluntarily, and that she was living in California with the permission of the Indian government. She also argued that the trial court had jurisdiction under the Uniform Child Custody Jurisdiction and Enforcement Act [UCCJEA; Fam C §3400 et seq.], either because California was S.’s home state, or, if S. did not have a home state, because S. had significant connections to California. Reema stated that she was living and working in Sacramento, where she was receiving TANF benefits. While his motion was pending, Vikas unsuccessfully applied to the Indian trial court for an order staying the California action; that court found that it did not have jurisdiction over a California court and declined to make an interim custody order. After hearing argument and receiving supplemental briefing, the Sacramento trial court found that India was S.’s home state under the UCCJEA because S. had lived there for a year before Reema filed her custody action, and that India had not declined jurisdiction over the custody case that was still pending in its court. Accordingly, the Sacramento trial court found that it did not have UCCJEA jurisdiction, and granted Vikas’s motion to quash.

Reema appealed, and the Third District reversed.

Too much, too soon . . .
The justices noted that the UCCJEA is the “exclusive method of determining subject matter jurisdiction in disputes involving other jurisdictions.” And, they continued, per Fam C §3426(a), a trial court may not exercise UCCJEA jurisdiction if a custody action is pending in another court that has “ ‘jurisdiction substantially in conformity with this part.’ ” It was undisputed that there was a custody action pending in India when Reema filed her petition in the Sacramento trial court; the question was whether the Indian court had jurisdiction that was in substantial conformance with the UCCJEA. When they reviewed the timeline here, the justices found that Vikas had filed his custody action in the Indian court only nine days after he, Reema, and S. arrived in India; “[s]uch a miniscule amount of time” may have been enough to give that court jurisdiction under Indian law, but it fell far short of establishing jurisdiction under the UCCJEA. Moreover, the fact that the Indian court had made a child-support order did not give it UCCJEA jurisdiction to make a custody order. Summing up, the panel found that the Indian trial court did not have UCCJEA jurisdiction over the custody issue; thus, the Sacramento court erred by concluding that it did and deferring to the Indian court’s jurisdiction.

Far from home . . .
The justices next looked to see whether the Sacramento court had UCCJEA jurisdiction. They reasoned that under Fam C §3421(a), a California court has jurisdiction if (1) California was the child’s home state on the date that the action began (or within six months of that date, if the child is absent but a parent lives here); (2) no other state has jurisdiction, or the home state has declined jurisdiction on grounds of inappropriate forum, the child and at least one parent have significant connections with this state beyond mere physical presence, and substantial evidence regarding the child’s care, protection, training, and personal relationships is present here; (3) all other courts with jurisdiction have declined to exercise it, on the ground that California is the more appropriate forum; or (4) no state has jurisdiction under any of the above criteria. It was clear that California was not S.’s home state because mother and child had not lived in California for six months when Reema filed her petition. The justices, however, disagreed with the trial court that the year that Reema and S. spent in India gave that country UCCJEA jurisdiction. The panel found no California case that has held that the time a child spends in a state or country after a custody petition is filed counts toward establishing home-state jurisdiction, but the out-of-state cases they found, such as Atkins v. Vigil (Alaska 2002) 59 P.3d 255 and Hegler v. Hegler (Fla 1980) 383 So.2d 1134, had ruled that it did not count. The justices found those cases persuasive, reasoning that allowing such time to count “would condone blatant forum-shopping, particularly here where it appears husband’s actions were responsible for keeping S. in India after his filing of the divorce and custody actions.” New York was the only other possible home state for S., the panel went on, but it was not a viable candidate for the designation because the child had not lived there for almost 17 months. Accordingly, the justices concluded that S. did not have a home state.

This must be the place . . .
The justices then considered whether the trial court could assume jurisdiction under Fam C §3421(a)(2). Did Reema and S. have significant connections to California other than just being here, and was there substantial evidence here regarding S.’s care, protection, training, and personal relationships? The panel answered both questions affirmatively. It was undisputed that Reema and S. had settled in Sacramento; Reema was working part-time, she had family to give her emotional support, and she was receiving TANF funds. Moreover, there was substantial evidence here regarding S.’s present and future care, family relationships, friends, activities, and prospective schooling. In contrast, the information available about S. in New York would relate only to her infancy, and that in India “would most likely reflect the temporary living arrangements” of Reema and S. while they waited to return to the U.S. The justices concluded that the trial court should have assumed UCCJEA jurisdiction under Fam C §3421(a)(2), and erred by ruling that it did not have UCCJEA jurisdiction. The panel reversed the lower court’s order granting Vikas’s motion to quash.