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California Says That Courts Cannot Change Child Custody Orders From Foreign Courts

California’s Fourth District Court of Appeal says that the state’s courts are not allowed to modify the child custody orders issued by a foreign court. The ruling was issued in the child custody dispute between Eric Paillier and Christine Pence, a couple who were married in California but divorced in France. They have a son named Brian, and a French court had granted visitation to Pence and gave physical custody to Paillier. The court also ordered that Pence could only take her son out of the country if it did not affect Paillier’s parental visitation rights. Ponce and her son moved back to the United States in 2003.

Paillier went to Riverside Superior Court to have the French ruling enforced and Brian ordered back to France. A judge ruled that Ponce could retain physical custody but that Brian must go to school in France. Brian was still studying in California by August 2005, and the judge ordered that Brian be sent back to his father. His mother appealed the decision saying that by modifying the original ruling, the judge had violated the Uniform Child Custody Jurisdiction Enforcement Act that says “a court of this state shall recognize and enforce a child custody determination [defined as including both custody and visitation rights] of a court of another state.”

Last week, the Fourth District Court of Appeal agreed with Ponce.

The Uniform Child Custody Jurisdiction and Enforcement Act:

All states and the District of Columbia have enacted a statute called the Uniform Child Custody Jurisdiction and Enforcement Act, which sets standards for when a court may make a custody determination and when a court must defer to an existing determination from another state. In general, a state may make a custody decision about a child if (in order of preference):

· The state is the child’s home state — this means the child has resided in the state for the six previous months or was residing in the state but is absent because a parent has removed the child from or retained the child outside of the state.

· There are significant connections with people — such as teachers, doctors, and grandparents — and substantial evidence in the state concerning the child’s care, protection, training, and personal relationships.

· The child is in the state and has been either abandoned or is in danger of being abused or neglected if sent back to the other state.

· No other state can meet one of the above three tests, or a state can meet at least one of the tests but has declined to make a custody decision.

If a state cannot meet one of these tests, even if the child is present in the state, the courts of that state cannot make a custody award. Also, a parent who has wrongfully removed or retained a child in order to create a home state or significant connections will be denied custody. In the event that more than one state meets the above standards, the law requires that only one state award custody. This means that once the first state makes a custody award, another state can neither make another “initial” award nor modify the existing order.

Having the same law in all states helps achieve consistency in the treatment of custody decrees. It also helps solve many of the problems created by kidnapping or disagreements over custody between parents living in different states.

When a child visitation order has been issued, it is usually the parent who has physical custody that has more control over the visit times, dates, and schedule. A court can intervene if the noncustodial parent feels that their visitation rights are not being honored.

If you are involved in a child custody dispute in Santa Clara County, Monterey County, or Alameda County, Sagaria Law, P.C. can help you. Contact Sagaria Law for a free consultation.

California Courts May Not Modify Child Custody Order, Metropolitan News-Enterprise, November 1, 2006
Child Visitation FAQ, Nolo.com

Related Web Resources:

Introduction To Child Custody and Visitation, California Self-Help Center
The Uniforn Child Custody Jurisdiction And Enforcement Act