Filed 10/11/18
CERTIFIED FOR PARTIAL PUBLICATION*
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
R.B.,
Plaintiff and Appellant, E068760
v. (Super.Ct.No. SWD1700469)
D.R., OPINION
Defendant and Respondent.
APPEAL from the Superior Court of Riverside County. Bradley O. Snell,
Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.) Affirmed.
Holstrom, Block & Parke and Ronald B. Funk for Plaintiff and Appellant.
Law Office of Jim Husen and Jim Husen for Defendant and Respondent.
R.B. (father) and D.R. (mother) are citizens of India who were married in India.
They came to California, where, in October 2013, their only child — a daughter — was
born. In December 2016, the father allegedly slapped the child and hit the mother. In
* Pursuant to California Rules of Court, rules 8.1105(b) and 8.1110, this
opinion is certified for publication with the exception of parts IV.B and V and
Appendix A.
1
February 2017, the mother discovered that the father was involved with another woman.
She immediately left for India with the child.
On February 11, 2017, in India, the mother obtained a restraining order giving her
sole custody of the child. On February 24, 2017, in California, the father obtained an ex
parte order (later stayed) giving him sole custody of the child.
After an evidentiary hearing, the trial court ruled that it had jurisdiction, but that
India was a more appropriate forum. It therefore stayed the California proceeding.
The father appeals. He contends that the trial court erred by finding that India was
a more appropriate forum, because:
1. India did not have concurrent jurisdiction under the Uniform Child Custody
Jurisdiction and Enforcement Act (UCCJEA). (Fam. Code, § 3400 et seq.)
2. The trial court misevaluated the statutorily relevant factors.
In the published portion of this opinion, we will hold that India could be an
inconvenient forum even if it did not have concurrent jurisdiction under the UCCJEA. In
the nonpublished portion, we find no other error. Hence, we will affirm.
I
FACTUAL BACKGROUND
The following facts are taken from the testimony and exhibits introduced at the
evidentiary hearing. We do not consider evidence introduced at earlier hearings. We
also do not consider the parties’ supporting and responsive declarations, as these were not
introduced at the evidentiary hearing. (In re Marriage of Shimkus (2016) 244
2
Cal. App. 4th 1262, 1271 [“as with any evidence, a declaration must be marked and
offered and is subject to objections before admission.”].)
The father and the mother are both citizens of India. In November 2012, they
came to California. The father had a work visa; the mother had a dependent visa. They
intended to go back to India permanently someday.
The child was born in California in October 2013. Thus, she is an American
citizen. India does not allow dual citizenship, but the child has overseas citizen status,
which is equivalent to a lifetime visa.
After the child was born, the parents “went back and forth between California and
India several times . . . .” They wanted her to “be very much aware of Indian culture and
tradition” and to spend time with both sets of grandparents. The child speaks both
English and Telugu, the parents’ native language.
On July 24, 2016, the family went to India so they could spend time with the
grandparents. The mother and child stayed there for about five and a half months. The
father left sometime before the mother did.
On December 4, 2016, while still in India, the parents had an argument; afterward,
the father asked the child, “Do you want me and grandmom, or do you want mom?” She
said, “No, I want mom only.” The father slapped the child “hard” on the cheek, leaving
red marks; he also hit the mother behind the ear.
On January 10, 2017, the mother and child left India and returned to California. In
February 2017, the mother “uncovered infidelity” on the part of the father. On February
3
7, 2017, while the father was in Florida, the parents argued over the phone; the father told
the mother to get out of the house.
Later that day, the father texted the mother: “THEN HERE IS MY FINAL
DECISION. Pack up and go back to India and do whatever you want . . . police court or
whatever, I will face it. I will sell the house as well.” (Ellipsis in original.) The mother
understood the mention of police court to refer to a potential prosecution of the father for
domestic violence.
The mother immediately took the child and went to India. On February 10, 2017,
she filed a petition for a restraining order in an Indian court. On February 11, 2017, the
Indian court ordered: “[The father] or his family members are hereby restrained from
taking the [child] from the custody of the [mother] till the next date of hearing.”
On April 5, 2017, the mother filed a petition for guardianship in the Indian court.
On April 24, 2017, the Indian court gave her temporary guardianship.
A hearing was set in the Indian court for either June 21 or 23, 2017.
II
PROCEDURAL BACKGROUND
On February 23, 2017, the father filed a petition for custody. He also filed an ex
parte application for temporary emergency custody orders.1 The trial court granted the ex
parte application, giving the father sole custody.
1 There is a dispute — which we need not resolve — as to whether the father
already knew that the Indian court had issued a restraining order.
4
The mother filed a responsive declaration asking that the case be heard in India,
along with a request for orders seeking to quash service of summons. On March 22,
2017, the trial court stayed its ex parte custody order pending a determination regarding
its jurisdiction.
The mother filed a trial brief, arguing that India was the child’s home state and,
alternatively, that India was a more appropriate forum.
On April 27, 2017, the trial court held an evidentiary hearing. On May 15, 2017,
it issued a statement of decision. It ruled that California had home state jurisdiction
under the UCCJEA. However, it further ruled that California was an inconvenient forum
and that India was a more appropriate forum. It therefore stayed the father’s petition, on
the condition that the mother move forward with a custody proceeding in India.
Such an order granting a motion to stay an action on the ground of inconvenient
forum is appealable. (Code Civ. Proc., § 904.1, subd. (a)(3).)
III
LEGAL BACKGROUND
This case is governed by the UCCJEA, as adopted in California.2 “The UCCJEA
is the exclusive method for determining subject matter jurisdiction for child custody
proceedings in California. [Citations.]” (In re A.C. (2017) 13 Cal.App.5th 661, 668.)
2 India is not a party to the Hague Convention on the Civil Aspects of
International Child Abduction. (Status Table
, as of October
9, 2018.)
5
Its key jurisdictional provision is Family Code section 3421, subdivision (a)
(section 3421(a)), which provides:
“Except as otherwise provided in Section 3424, a court of this state has
jurisdiction to make an initial child custody determination only if any of the following are
true:
“(1) This state is the home state[3] 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 . . .
continues to live in this state.
“(2) A court of another state does not have jurisdiction under paragraph (1), or a
court of the home state of the child has declined to exercise jurisdiction on the grounds
that this state is the more appropriate forum under Section 3427 . . . , and both of the
following are true:
“(A) The child and the child’s parents, or the child and at least one parent or a
person acting as a parent, have a significant connection with this state other than mere
physical presence.
“(B) Substantial evidence is available in this state concerning the child’s care,
protection, training, and personal relationships.
3 “‘Home state’ means the state in which a child lived with a parent . . . for at
least six consecutive months immediately before the commencement of a child custody
proceeding.” (Fam. Code, § 3402, subd. (g).)
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“(3) All courts having jurisdiction under paragraph (1) or (2) have declined to
exercise jurisdiction on the ground that a court of this state is the more appropriate forum
to determine the custody of the child under Section 3427 . . . .
“(4) No court of any other state would have jurisdiction under the criteria
specified in paragraph (1), (2), or (3).”
The inconvenient forum provision of the UCCJEA is Family Code section 3427
(section 3427), which provides:
“(a) A court of this state that has jurisdiction under this part to make a child
custody determination may decline to exercise its jurisdiction at any time if it determines
that it is an inconvenient forum under the circumstances and that a court of another state
is a more appropriate forum. . . .
“(b) Before determining whether it is an inconvenient forum, a court of this state
shall consider whether it is appropriate for a court of another state to exercise jurisdiction.
For this purpose, the court shall allow the parties to submit information and shall consider
all relevant factors, including:
“(1) Whether domestic violence has occurred and is likely to continue in the
future and which state could best protect the parties and the child.
“(2) The length of time the child has resided outside this state.
“(3) The distance between the court in this state and the court in the state that
would assume jurisdiction.
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“(4) The degree of financial hardship to the parties in litigating in one forum over
the other.
“(5) Any agreement of the parties as to which state should assume jurisdiction.
“(6) The nature and location of the evidence required to resolve the pending
litigation, including testimony of the child.
“(7) The ability of the court of each state to decide the issue expeditiously and the
procedures necessary to present the evidence.
“(8) The familiarity of the court of each state with the facts and issues in the
pending litigation.
“(c) If a court of this state determines that it is an inconvenient forum and that a
court of another state is a more appropriate forum, it shall stay the proceedings upon
condition that a child custody proceeding be promptly commenced in another designated
state . . . .”
A foreign country is treated as a “state” for purposes of the UCCJEA. (Fam.
Code, § 3405, subd. (a).)
IV
CONCURRENT JURISDICTION
A. An Inconvenient Forum Finding Did Not Require That India Have
Concurrent Jurisdiction under the UCCJEA.
The father contends that the trial court erred by ruling that India was a more
appropriate forum because it did not find, and could not have found, that India had
8
concurrent jurisdiction under the UCCJEA. In his view, a California court cannot apply
the inconvenient forum doctrine unless the other state already has such concurrent
jurisdiction; under section 3421(a)(1), California has exclusive jurisdiction, and India has
no jurisdiction at all, and so the trial court erred.
As we will discuss, this argument is premised on outdated law, plus an unfortunate
dictum in In re Marriage of Nurie (2009)
176 Cal. App. 4th 478 belatedly restating that
law as if it were still good. We decline to let this dictum lead us astray.
The UCCJEA went into effect on January 1, 2000. (Stats. 1999, ch. 867.) It
repealed and replaced (id., § 2, p. 6199) the Uniform Child Custody Jurisdiction Act
(UCCJA), which had gone into effect on January 1, 1974. (Civ. Code, former §§ 5150-
5174, Stats. 1973, ch. 693; see also Fam. Code, former §§ 3400-3425, Stats. 1992,
ch. 162, §§ 10, 13, pp. 553-562, 722.) In many respects, the two statutory schemes are
similar. Obviously, however, they are not identical. Accordingly, “[c]ases interpreting
the UCCJA are instructive in deciding cases under the UCCJEA except where there is a
conflict between the two statutory schemes. [Citations.]” (In re Marriage of Fernandez-
Abin & Sanchez (2011)
191 Cal. App. 4th 1015, 1037, fn. 18.)
Under the UCCJA, it was possible for multiple states to have concurrent
jurisdiction (Fam. Code, former § 3403, subd. (a); Marriage of Torres (1998)
62
Cal. App. 4th 1367, 1374-1375); the UCCJA merely provided rules for determining which
state should exercise its jurisdiction. (Fam. Code, former §§ 3406, subds. (a), (c), 3407;
9
see also 9 pt. 1A West’s U. Laws Ann. (1999) U. Child Custody Jurisdiction Act, com. to
§ 3, p. 308.)
These rules were as follows: “The first step in the UCCJA’s orderly procedure for
determining which court may exercise jurisdiction require[d] that the court must ascertain
whether it has jurisdiction under the terms of the UCCJA; second, the court must
determine whether there is a custody proceeding pending or a decree existing in another
state which presently has jurisdiction. If the court finds that it has jurisdiction, and that
there is no proceeding pending or a decree existing, then it must determine which state is
the most convenient forum to exercise jurisdiction. If it finds another state is a more
convenient forum, then under the standards of the UCCJA, it may not exercise
jurisdiction [citation].” (In re Marriage of Hopson (1980)
110 Cal. App. 3d 884, 899-
900.)
In other words, under the UCCJA, the inconvenient forum doctrine was one of the
rules for deciding which of two states that had concurrent jurisdiction should proceed to
exercise that jurisdiction. Thus, it was said that “[a]pplication of the inconvenient forum
doctrine [is] limited to situations where at least two states concurrently ha[ve]
jurisdiction. [Citation.]” (Brossoit v. Brossoit (1995)
31 Cal. App. 4th 361, 371, fn. 4;
accord, In re Marriage of Fox (1986)
180 Cal. App. 3d 862, 873.)
By contrast, “[t]he UCCJEA ensures that only one state has jurisdiction to make
‘child custody determinations’ . . . . [Citations.]” (In re Marriage of Fernandez-Abin &
Sanchez, supra, 191 Cal.App.4th at p. 1037.) “[A] major aim of the UCCJEA is to avoid
10
‘concurrent jurisdiction.’ [¶] Indeed, concurrent assertion of jurisdiction by more than
one court was one of the chief problems that led to the enactment of the UCCJEA.” (In
re Marriage of
Nurie, supra, 176 Cal.App.4th at p. 497.) The UCCJEA “provide[s] a
comprehensive, integrated system designed to provide that one — and only one — court
may exercise jurisdiction over custody determinations at any given time. [Citation.]”
(Id. at p. 498.) “‘[E]xclusive, continuing jurisdiction’ [i]s one of the cornerstones of the
UCCJEA, making it one of the crucial ways in which the two regimes differ.
[Citations.]” (Id. at p. 497, fns. omitted.)
Now, under the UCCJEA, if California is the home state of the child, a California
court has exclusive jurisdiction. (Fam. Code, § 3421, subd. (a)(1).) However, once that
court finds that California is an inconvenient forum, another state (provided it has also
adopted the UCCJEA) thereby gains exclusive jurisdiction. (Fam. Code, § 3421, subds.
(a)(2), (a)(3); see also Fam. Code, § 3426, subd. (a).)
It is also worth noting that UCCJEA inconvenient forum principles apply in
California regardless of whether the other state has adopted the UCCJEA. Thus, a
California court that has exclusive home state jurisdiction under section 3421(a) may
decide that Massachusetts is a more convenient forum, even though Massachusetts has
not adopted the UCCJEA (9 pt. 1A West’s U. Laws Ann. (1999) U. Child Custody
Jurisdiction Act, 2018 pocket pt., pp. 84-85), and even though Massachusetts could
conceivably determine, using its own rules, that it should not exercise jurisdiction. At
first glance, this poses a risk that no court will exercise jurisdiction, but the safety net is
11
that the California court will merely stay the proceeding; if Massachusetts declines to
exercise jurisdiction, the California proceeding may resume. (Fam. Code, § 3427, subd.
(c).)
In sum, then, it is no longer true that the inconvenient forum doctrine applies only
when two states have concurrent jurisdiction. In fact, it is logically impossible (unless
the other state, like Massachusetts, is applying non-UCCJEA rules).
Nevertheless, the father relies on pre-UCCJEA cases such as Hopson and Brossoit.
He acknowledges that they were decided under the UCCJA, but he blithely declares that
“the basic principles at issue here have continued into the current statutory scheme.” But
not so.
The father does also rely on one post-UCCJEA case — In re Marriage of
Nurie,
supra,
176 Cal. App. 4th 478. There, the wife refused to return the couple’s child from
Pakistan. (Id. at p. 485.) A California court awarded custody to the father, but the wife
and child remained in Pakistan. (Id. at pp. 486-487.) Thereafter, the husband went to
Pakistan and the parties litigated custody in Pakistan, culminating in an order that the
child not be removed from Pakistan. (Id. at pp. 486-487.) Nevertheless, the father took
the child to California. (Id. at p. 489.) The California court refused to enforce the
Pakistani court’s orders and refused to find that Pakistan was a more convenient forum.
(Id. at pp. 489-490.)
The appellate court discussed the UCCJEA’s emphasis on exclusive jurisdiction
and its avoidance of concurrent jurisdiction. (In re Marriage of
Nurie, supra, 176
12
Cal.App.4th at pp. 496-498.) It then held that the California court had acquired exclusive
jurisdiction and had never lost it. (Id. at pp. 498-511.) It further held that the trial court
did not err by refusing to find that Pakistan was a more appropriate forum. (Id. at
pp. 513-514.) It reviewed the trial court’s finding on each of the relevant statutory
factors and concluded: “In light of [its] thoughtful analysis, we cannot say that the trial
court abused its discretion in refusing to declare Pakistan a more convenient forum. A
court should decline jurisdiction as an inconvenient forum only when there is concurrent
jurisdiction elsewhere. [Citing Brossoit.] . . . Here, as discussed, California had
exclusive, continuing jurisdiction, and Pakistan had no modification jurisdiction under
UCCJEA principles.” (Id. at p. 514, italics added.)
Given the court’s in-depth discussion of the fact that the UCCJEA does not
recognize concurrent jurisdiction, we are at a loss to understand what it meant by the
italicized language. In any event, this language does not appear to be a crucial part of the
court’s reasoning. Rather, the court upheld the trial court’s ruling that Pakistan was not a
more appropriate forum based on the trial court’s analysis of the statutory factors, plus
the fact that Pakistan had not acquired modification jurisdiction.
We therefore conclude that the trial court could properly find that India was a
more appropriate forum, even though India did not have concurrent jurisdiction under the
UCCJEA.
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B. Failure to Communicate with the Indian Court.
In a subsidiary argument — two sentences long — the father asserts that the trial
court erred by failing to communicate with the Indian court. As the mother notes, the
trial court raised the topic of communication between the two courts, but counsel for the
father opposed any communication. Thus, the asserted error, if error at all, was invited.
(Norgart v. Upjohn Co. (1999)
21 Cal. 4th 383, 403 [“‘Where a party by his conduct
induces the commission of error, he is estopped from asserting it as a ground for reversal’
on appeal.”].)
V
FINDINGS REGARDING THE STATUTORY
INCONVENIENT FORUM FACTORS
The father also contends that the trial court erred in evaluating the relevant
statutory factors.
A. Additional Factual and Procedural Background.
The trial court made specific findings regarding each of the factors that are
relevant to an inconvenient forum determination under section 3427. To show how
thorough the trial court’s analysis was, without unduly lengthening this opinion, we
attach the trial court’s order as Appendix A.
B. Discussion.
“A trial court’s ruling to stay custody proceedings on the basis that another forum
is more convenient is purely discretionary, and we will not reverse the ruling on appeal
14
unless there was a clear abuse of discretion. [Citation.] (Brewer v. Carter (2013)
218
Cal. App. 4th 1312, 1316.) “The court has broad discretion with respect to weighing the
applicable factors and determining the appropriate weight to accord to each.” (Id. at
p. 1320.)
The father asserts that the trial court did not give the section 3427 factors “careful
consideration.” Hardly. We have attached the trial court’s ruling because it displays, on
its face, thoughtful and detailed consideration.
The father criticizes the trial court’s finding on the fifth factor — an agreement of
the parties. He cites authority to the effect that jurisdiction under the UCCJEA cannot be
conferred by consent. (See, e.g., In re
A.C., supra, 13 Cal.App.5th at p. 668.) This
contention would read the fifth factor out of the statute. Whether India has jurisdiction
under the UCCJEA and whether India is a more appropriate forum are two entirely
separate issues. India can be a more appropriate forum, even if it does not have
jurisdiction under the UCCJEA; it may follow its own jurisdictional principles.
The father also challenges the trial court’s finding on the seventh factor — the
ability of each court to decide the issue expeditiously. He complains that, by finding that
it had no evidence on this point, it “abdicated its responsibility” to “make an analysis.”
He does not dispute, however, that there was, in fact, no evidence on this point. In the
absence of evidence, there was nothing for the court to analyze.
He asserts that the trial court’s finding on this factor is inconsistent with In re
Marriage of Sareen (2007)
153 Cal. App. 4th 371, which stated, “India’s jurisdiction in the
15
pending custody proceeding . . . was not in substantial conformity with the UCCJEA.”
(Id. at p. 377.) In Sareen, however, the issue was whether an Indian court, in which a
custody proceeding concerning the child was already pending (id. at pp. 374-375), had
“jurisdiction substantially in conformity with” the UCCJEA, because this would have
precluded a California court from exercising jurisdiction. (Fam. Code, § 3426, subd. (a).)
By contrast, for purposes of inconvenient forum, there is no requirement that the other
forum have jurisdiction in substantial conformity with the UCCJEA. Even without such
jurisdiction, it may be able to resolve the custody issues expeditiously.
Finally, the father argues that child’s connections to India are “short-term” and
“insignificant.” Once again, he is relying on pre-UCCJEA law. Under the UCCJA, in
deciding an inconvenient forum issue, one of the factors that a trial court had to consider
was whether “another state has a closer connection with the child and his family . . . .”
(Civ. Code, former § 5156, subd. (3)(b), Stats. 1973, ch. 693, § 1, p. 1255; accord, Fam.
Code, former § 3407, subd. (c)(2), (Stats. 1992, ch. 162, § 10, pp. 557.) Thus, in Plas v.
Superior Court (1984)
155 Cal. App. 3d 1008, the appellate court held that the trial court
abused its discretion by refusing to find that France was a more appropriate forum (id. at
pp. 1019-1022), in part because “[the child] and his parents have a closer connection with
France than with California . . . .” (Id. at p. 1022; see also
id. at p. 1019.) Under the
UCCJEA, however, a connection with the other state is no longer a factor.
Accordingly, we conclude that the father has not shown that the trial court abused
its discretion in evaluating the section 3427 factors.
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VI
DISPOSITION
The order appealed from is affirmed. The mother is awarded costs on appeal
against the father.
CERTIFIED FOR PARTIAL PUBLICATION
RAMIREZ
P. J.
We concur:
CODRINGTON
J.
SLOUGH
J.
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APPENDIX A
R.B. D.R.
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19
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21