The first step in any divorce proceeding is to determine which court has the power to hear your case. Power is derived from subject matter jurisdiction. To determine if the court in question has the power to hear a case we ask two questions: (1) whether the court has subject matter jurisdiction; and (2) does the court have personal jurisdiction?

Subject Matter Jurisdiction is conferred upon courts by many family code sections, but there are other considerations to take into account including: (1) domicile requirement; (2) residency requirement; (3) whether the divorce is divisible; (4) whether the action is subject to collateral attack; (5) the Uniform Divorce Recognition Act; (6) Venue; and (7) Interstate Custody.

Domicile: At least one party to California Divorce Action must be domiciled in California. Residency: at least one party must be a resident of the State of California for 6 months, and a resident of the county in which the case is filed for 3 months prior to filing.

Divisibility: A court can make a decision on part of a divorce case that was commenced elsewhere but where a decision on that particular issue hasnt been made. Collateral Attack: If a court exercises subject matter jurisdiction over a case and neither party objects, they are prevented from doing so later (also known as the Sherrer Doctrine).

Uniform Divorce Recognition Act (UDRA): if California residents leave the state to obtain a divorce, the divorce may not be recognized if they fail to meet UDRA requirements. By way of example (as of this writing) if California residents visit South Dakota to get a dissolution, the dissolution will not be recognized in California under the UDRA.

Venue: Code of Civil Procedure Section 395 states that venue (essentially, where the case should be filed) lies in the California county where at least one party has resided for at least 3 months prior to filing (note, however, that for legal separation or nullity actions the county where either party lived is permissible for filing).

Interstate Custody: Governed by the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA). UCCJEA is similar to the Federal Parental Kidnapping Prevention Act (FPKPA). However, the UCCJEA is not a federal law and hasnt been adopted by every state. California has adopted the UCCJEA and must follow it. The UCCJEA applies in any child related case (except adoption) and provides that priority is given to the home state, which is the state where the child has lived for at least 6 months prior to the filing of the legal action. The keystone of the UCCJEA is that once a court obtains subject matter jurisdiction through the UCCJEA, it retains continuing exclusive jurisdiction (CEJ). And CEJ continues, usually, at least as long as one party remains in that state. The Hague Convention, International Parental Kidnapping Crime Act of 1993 (IPKCA), and Family Code section 3048 also may be relevant in determining subject matter jurisdiction.

The Hague Convention: is an international treaty signed by many countries to provide for the return of a child wrongfully taken from his or her habitual place of residence. The statute was enacted not to determine who should have custody, rather the purpose is to figure out where the custody decision should be made.

The Hague Convention, however, only applies where the Nations at issue have signed the treaty. If they havent, subject matter jurisdiction may be sought pursuant to the IPKCA. This is a federal statute that makes obstructing parental rights by moving a child out the country a federal crime.

Family Code Section 3048: imposes a number of requirements on family law courts regarding child custody and visitation. And the section allows Judges to impose restrictions upon parties if the court becomes aware facts that indicate a risk of abduction. These restrictions include (1) supervised parental times; (2) posting a bond; (3) restriction on relocations; (4) court can take passports; (5) the court can deny rights to international travel and more.

As a threshold matter, a court will examine all the above factors where relevant. In my next article I will delve into the complexities of personal jurisdiction. If you have any divorce or family law related question do not hesitate to contact me at your convenience. Make sure to sign up for my free newsletter, when you do youll receive a My Free Divorce Report that youll absolutely need if youre planning a divorce or find yourself in the middle of one! And you will receive all the articles in this series for free. Just click on the links below!

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Article Submitted By: JonD.Alexander,Esq.
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