California Military Divorce: Interstate Custody Issues

The UCCJEA Framework: Home State Jurisdiction

The UCCJEA establishes a hierarchical system for determining which state has jurisdiction to make child custody determinations. At the top of this hierarchy is the “home state” concept, which generally grants jurisdiction to the state where the child has lived for at least six consecutive months immediately before the custody proceeding begins.

For military families, the home state determination can be complex. Children may have lived in multiple states due to Permanent Change of Station orders, or they may be residing temporarily in another state while a parent deploys. The UCCJEA addresses these situations by defining “home state” specifically to include periods of “temporary absence” by any of the parties as part of the six-month period.

California Family Code Section 3402 defines “home state” as the state where the child lived with a parent or person acting as a parent for at least six consecutive months immediately before the custody proceeding commenced. For children under six months, the home state is where the child has lived since birth. The statute explicitly states that “periods of temporary absence of any of the parties are counted as part of the six-month or other period.”

This temporary absence provision is critical for military families. When a service member deploys and the child relocates to another state to stay with the other parent or relatives, that relocation does not automatically change the child’s home state. The time spent in the other state is considered temporary, and California retains its status as the home state. This prevents the non-deployed parent from establishing a new home state jurisdiction simply by keeping the child in their care during deployment.

Exclusive Continuing Jurisdiction: California’s Retained Authority

Once a California court makes an initial custody determination, it retains “exclusive, continuing jurisdiction” over the matter until specific conditions are met. This means that no other state can modify the California order unless California first relinquishes jurisdiction or the parties no longer have sufficient connections to California.

Family Code Section 3422 establishes that a California court that has made a custody determination has exclusive, continuing jurisdiction unless: (1) California determines that neither the child nor the parents have a significant connection with California and substantial evidence concerning the child’s care is no longer available in California; or (2) California or another state determines that the child and parents do not presently reside in California.

The exclusive continuing jurisdiction rule prevents forum shopping, where a parent might move to a state with more favorable custody laws and file for modification there. For military families, this means that a non-deployed parent cannot gain a tactical advantage by relocating to another state and immediately seeking custody modification. As long as the service member maintains a significant connection to California, California retains jurisdiction.

Family Code Section 3047(e) specifically addresses military relocations by providing that “the relocation of a child to another state by a non-relocating party during the time a party is deployed out of state is deemed a temporary absence and does not affect the determination of the child’s home state for purposes of the Uniform Child Custody Jurisdiction and Enforcement Act.” This statutory provision ensures that deployment-related relocations do not inadvertently shift jurisdiction to another state.

Temporary Emergency Jurisdiction: Protecting Children in Crisis

While the UCCJEA establishes home state jurisdiction as the primary rule, it also provides for temporary emergency jurisdiction when a child is present in a state and has been abandoned or is in danger of abuse. This provision allows courts to act immediately to protect children, even if another state would normally have jurisdiction.

For military families, temporary emergency jurisdiction may arise when a service member deploys and the child is left with a caregiver who proves unfit, or when domestic violence occurs in the home where the child is staying during deployment. The state where the child is currently located can enter temporary orders to protect the child, but these orders are explicitly temporary and must be coordinated with the home state court.

Family Code Section 3424 establishes California’s authority to take temporary emergency jurisdiction and requires that California courts communicate with courts of other states that have jurisdiction to ensure proper coordination. If a California court takes emergency jurisdiction because a child of a deployed service member is in danger in another state, the California court must communicate with the other state’s courts to determine whether the emergency is ongoing and whether the other state should assume jurisdiction.

The temporary nature of emergency jurisdiction is particularly important for military families. A non-deployed parent cannot use an emergency custody order obtained while the service member is deployed to establish permanent custody rights. Once the emergency passes or the service member returns, the court must either return jurisdiction to the home state or determine that the home state has lost jurisdiction under the standards of Section 3422.

Enforcement of California Orders in Other States

The UCCJEA requires all states to enforce custody orders issued by other states that had proper jurisdiction. This full faith and credit provision ensures that a California custody order is valid and enforceable nationwide, preventing a parent from evading custody obligations simply by crossing state lines.

For military parents, this enforcement mechanism is crucial. When a service member is stationed in another state or overseas, the non-deployed parent may need to enforce California custody orders in the state where the child is currently located. The UCCJEA provides streamlined procedures for registering and enforcing out-of-state custody orders.

Family Code Section 3443 requires California courts to recognize and enforce custody determinations made by other states if those courts had jurisdiction consistent with the UCCJEA. Conversely, other states must recognize and enforce California custody orders. This reciprocal enforcement ensures that military parents do not lose the protection of their custody orders simply because the child is temporarily located in another state.

The enforcement provisions apply even when the other state’s laws might have resulted in a different custody outcome. As long as the California court had proper jurisdiction under the UCCJEA, the other state must enforce the order regardless of whether it agrees with the custody determination. This prevents states from second-guessing each other’s custody decisions and ensures stability for children of military families who move frequently.

Modification Jurisdiction: When California Loses Authority

California’s exclusive continuing jurisdiction is not permanent. Under specific circumstances, California may decline to exercise jurisdiction or may determine that it no longer has jurisdiction, allowing another state to modify the custody order. Understanding these circumstances helps military parents maintain California jurisdiction when desired or transition to another state’s jurisdiction when necessary.

California may decline jurisdiction if it determines that it is an “inconvenient forum” and that another state is a more appropriate place to resolve the custody matter. Factors in this determination include: whether domestic violence has occurred and which state can best protect the parties and the child; the length of time the child has resided outside California; the distance between California and the other state; the parties’ financial circumstances; and any agreement between the parties regarding which state should have jurisdiction.

California loses exclusive continuing jurisdiction automatically when neither the child nor the parents have a significant connection with California and substantial evidence concerning the child’s care is no longer available in California. For military families, this might occur when the service member receives Permanent Change of Station orders to another state, the non-deployed parent moves there as well, and the family establishes new roots with no remaining ties to California.

When California loses jurisdiction, the state where the child currently resides typically becomes the new home state and can assume jurisdiction to modify the custody order. This transition is orderly and prevents gaps in jurisdiction that could harm the child. However, service members should be aware that once jurisdiction shifts to another state, that state’s custody laws will govern future modifications, which may be more or less favorable than California’s laws.

Military Relocation and Jurisdiction Preservation

Military relocations present unique jurisdictional challenges because they may be temporary (deployments) or permanent (Permanent Change of Station orders), and they may involve the service member alone or the entire family. The UCCJEA and Family Code Section 3047 address these scenarios with specific rules that preserve California jurisdiction when appropriate.

When a service member receives PCS orders to another state but the family remains in California, California clearly retains jurisdiction. The service member’s move alone does not affect the child’s home state or California’s exclusive continuing jurisdiction. The non-deployed parent cannot claim that the service member’s relocation to another state justifies changing jurisdiction.

When the entire family relocates to the new duty station, the jurisdictional analysis becomes more complex. If the family establishes residence in the new state for six months, that state becomes the child’s home state and can assume jurisdiction. However, California retains exclusive continuing jurisdiction until the new state actually exercises jurisdiction or California determines that it no longer has significant connections to the case.

Family Code Section 3047(e) specifically protects against jurisdiction shifts during deployment by providing that a child’s relocation to another state during a parent’s deployment is a temporary absence that does not affect the home state determination. This prevents the non-deployed parent from establishing a new home state by keeping the child in another state while the service member is deployed.

International Jurisdiction: When Military Service Goes Overseas

Military deployments and assignments to overseas bases create international jurisdictional issues that the UCCJEA addresses through specific provisions regarding foreign countries. While the UCCJEA primarily governs interstate custody matters within the United States, it also provides frameworks for custody determinations involving foreign countries.

Family Code Section 3405 treats foreign countries as states for purposes of the UCCJEA, unless the child custody law of the foreign country violates fundamental principles of human rights. This means that a custody order issued by a military tribunal or foreign court in a country where the service member is stationed may be recognized and enforced in California, provided the foreign court had proper jurisdiction and the law does not violate human rights principles.

For service members stationed overseas with their children, the overseas location does not automatically become the child’s home state. The UCCJEA’s temporary absence provisions apply to overseas assignments just as they do to interstate relocations. If the family maintains California as their permanent residence and intends to return there after the overseas tour, California retains home state jurisdiction even if the child has lived abroad for several years.

The Hague Convention on the Civil Aspects of International Child Abduction may apply if a parent wrongfully removes a child from the United States to a foreign country or retains the child in a foreign country in violation of custody rights. Service members should be aware that taking a child to an overseas assignment without the other parent’s consent or in violation of a custody order could trigger Hague Convention proceedings, even if the service member has legitimate military orders.

Practical Strategies for Maintaining California Jurisdiction

Military parents who wish to maintain California jurisdiction over their custody matters can take specific steps to strengthen their connections to California and prevent inadvertent jurisdiction shifts. These strategies are particularly important when facing deployment, Permanent Change of Station orders, or attempts by the other parent to establish jurisdiction in another state.

Maintaining a California residence, even when stationed elsewhere, helps establish significant connections to the state. This might involve keeping a home or apartment in California, maintaining voter registration and driver’s licenses in California, or having the child attend California schools during summer breaks or other visits. These connections demonstrate that California remains the child’s home state despite temporary absences.

When negotiating custody settlement agreements, service members should include provisions specifying that California retains jurisdiction and that any temporary relocations due to military service do not affect the home state determination. These contractual provisions, while not binding on courts, demonstrate the parties’ intent and can influence jurisdictional determinations.

If the other parent files for custody in another state, the service member must act promptly to object to that state’s jurisdiction and request that California retain or resume jurisdiction. Failure to object in a timely manner may result in the other state assuming jurisdiction by default. Working with attorneys in both California and the other state ensures that jurisdictional objections are properly raised and preserved.

Coordinating with the Servicemembers Civil Relief Act

The federal Servicemembers Civil Relief Act (SCRA) provides procedural protections that complement the UCCJEA’s jurisdictional rules. While the UCCJEA determines which state has substantive jurisdiction over custody matters, the SCRA ensures that service members can participate meaningfully in proceedings regardless of where they are stationed.

The SCRA allows service members to request stays of civil proceedings, including custody cases, when military service materially affects their ability to appear. These stays prevent courts from proceeding to judgment in the service member’s absence, ensuring that jurisdictional determinations and custody decisions are not made without the service member’s input.

The SCRA applies regardless of which state has jurisdiction under the UCCJEA. Whether the case proceeds in California or another state, the service member can invoke SCRA protections to ensure fair participation. This federal overlay ensures that military service does not disadvantage service members in custody proceedings, regardless of interstate jurisdictional complexities.

When facing custody proceedings in another state, service members should invoke both the UCCJEA’s jurisdictional protections and the SCRA’s procedural protections. The combination ensures not only that the proper state hears the case but also that the service member can effectively participate in that state’s proceedings.

Frequently Asked Questions

Securing Your Custody Rights Across State Lines

Interstate custody jurisdiction presents complex challenges for military families, but the UCCJEA and California’s military-specific protections provide clear rules that prevent forum shopping and ensure stability. Understanding these rules allows service members to maintain California jurisdiction when appropriate and navigate jurisdictional transitions when necessary.

The key principles are straightforward: California retains jurisdiction as long as the child or a parent maintains significant connections to the state, deployment-related absences are temporary and do not affect home state determinations, and other states must recognize and enforce California custody orders. These protections ensure that military service does not disadvantage service members in custody proceedings simply because their duties require geographic mobility.

Working with attorneys who understand both the UCCJEA and California’s military custody laws is essential for navigating these complexities. Whether facing deployment, Permanent Change of Station orders, or attempts by the other parent to establish jurisdiction elsewhere, military parents can protect their rights by understanding the jurisdictional framework and taking proactive steps to maintain their California connections.

The information on this website is for general information purposes only. Nothing on this site should be taken as legal advice for any individual case or situation. This information is not intended to create, and receipt or viewing does not constitute, an attorney-client relationship.

Sources:

• California Legislative Information – Family Code
• California Courts – Official Website
• Uniform Law Commission – UCCJEA
• Wikipedia – Military