A. M. v. Superior Court of San Diego Cnty.

63 Cal.App.5th 343

277 Cal.Rptr.3d 594

A. M., Petitioner,

v.The SUPERIOR COURT OF SAN DIEGO COUNTY, Respondent;

E. M. et al., Real Parties in Interest.

D078117

Court of Appeal, Fourth District, Division 1, California.

Filed April 20, 2021

Bickford, Blados & Botros and Andrew J. Botros, for Petitioner.

No appearance for Respondent.

Feuerstein, Murphy & Beals and Jenna E. Hackett, for Real Parties in Interest.

McCONNELL, P. J.

By petition for writ of mandate A.M. (Mother) challenges the family court's ruling subjecting her and her child (Minor) to its continued jurisdiction to adjudicate the paternal grandparents' petition for visitation. We agree with mother that writ relief is warranted in this case, and issue a peremptory writ of mandate directing the court to vacate its October 22, 2020 order and enter a new order dismissing the petition for lack of subject matter jurisdiction under the Uniform Child Custody Jurisdiction and Enforcement Act (1997) (UCCJEA; Fam. Code, §§ 3400, et seq.¹ )

FACTUAL AND PROCEDURAL BACKGROUND

Mother's husband and father of her child died tragically in October 2018 while performing his job trimming trees. On January 15, 2019, father's parents, R.M. and E.M. (Grandparents), filed a petition requesting visitation with Minor under section 3103. Concurrently with the petition, Grandparents filed a jurisdictional declaration in accordance with the UCCJEA stating Minor had lived in San Diego since birth in November 2015.

Before any action on the petition, on January 31, 2019, Mother filed an ex parte application for an order allowing her and her child to move from San Diego to Washington state to be near Mother's parents and other close family members. The family court denied the application on the ground it was "not an emergency."

A family court services mediation took place on February 13, 2019 and Mother, who was by then living in Washington with her child, participated by phone.² 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. She expressed concern about Grandparents' drinking habits and a paternal great uncle who lived with them who was a habitual drug user. Mother also explained she had never had a positive relationship with Grandparents, and that their son had been abusive to her before his death.

A trial on the petition was scheduled for April 22, 2019, but did not go forward. 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. Thereafter, she submitted an ex parte application seeking another continuance on the grounds the parties were engaging in settlement discussions. The court granted the application and set the trial for November 6, 2019 with a status conference on August 28, 2019.

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 order also took the November 6, 2019 trial "off calendar without prejudice."

No further proceedings occurred until June 24, 2020, when Grandparents filed an ex parte request that the court 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. Mother's accompanying declaration stated she had participated in reunification therapy but that it had failed because of Grandparents' unwillingness to join. Mother also asserted that San Diego was not the proper venue for the case and that she could not afford to travel here for the proceedings.

Mother's memorandum of points and authorities in support of her request argued 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.

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. A hearing on Mother's request for order took place on September 23, 2020. After argument, the court denied the request. The court stated that it continued to have jurisdiction because "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."

The court also 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 concluded by stating it had "never relinquished any jurisdiction ... so therefore finds it does have jurisdiction under the UCCJEA to continue to hear this matter." The court set a trial setting conference for December 15, 2020.³

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."

On October 23, 2020, Mother filed the instant petition for writ of mandate and request for a stay challenging the FOAH. This court stayed the proceedings in the family court and issued an order to show cause why the relief requested should not be granted. Grandparents filed a return and Mother replied.

DISCUSSION

Mother agrees the family court had jurisdiction under the UCCJEA at the time Grandparents filed their petition for visitation. She argues, however, 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. Mother asserts that 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).⁴ 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.⁵

I

"The UCCJEA is a model law that ‘arose out of a conference of states in an attempt to deal with the problems of competing jurisdictions entering conflicting interstate child custody orders, forum shopping, and the drawn out and complex child custody legal proceedings often encountered by parties where multiple states are involved.’ [Citation.] To date, every state except Massachusetts has enacted the UCCJEA, and the District of Columbia and the United States Virgin Islands have enacted it as well. [Citation.] California adopted the UCCJEA effective January 1, 2000, and it is codified in section 3400 et seq." ( In re J.W. (2020) 53 Cal.App.5th 347, 354–355, 267 Cal.Rptr.3d 554 ( J.W. ).)

"The UCCJEA determines the proper jurisdictional situs as between interested states for litigation of child custody determinations—which includes virtually any custody or visitation dispute ( § 3402, subd. (c) ). As applicable here, the UCCJEA applies in a ‘child custody proceeding’—which, is defined in part as ‘a proceeding in which legal custody, physical custody, or visitation with respect to a child is an issue’ ( § 3402, subd. (d) )—commenced on or after January 1, 2000. ( § 3465.) ‘ "It is well settled in California that the UCCJEA is the exclusive method of determining subject matter jurisdiction in custody disputes involving other jurisdictions." ’ [Citations.] Accordingly, UCCJEA jurisdictional requirements must be satisfied whenever a California court is called upon to make either an initial or a modified custody determination. " ( In re Marriage of Kent (2019) 35 Cal.App.5th 487, 493, 247 Cal.Rptr.3d 466 ( Kent ), emphasis added.)

The provisions of the UCCJEA primarily at issue here are sections 3421 and 3422. Section 3421 states, in relevant part: "Except as otherwise provided in Section 3424, a court of this state has jurisdiction to make an initial child custody determination only if ... [t]his state is 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 or person acting as a parent continues to live in this state." ( § 3421, subd. (a)(1).)

Under section 3421, "[s]ubject matter jurisdiction either exists or...