Case Update: UCCJEA, Continuing Exclusive Jurisdiction, Temporary Emergency Jurisdiction
On July 6, 2020, the Court of Appeal of the State of California issued an opinion in the case of L.A. Cnty. Dep't of Children & Family Servs. v. MH. At issue, in this case, is a minor child who had been in a shelter in Mexico, and was then transferred to his maternal grandmother in California. The child's parents were both found unfit to care for the child, and the child had been living in deplorable conditions with the parents in Mexico. The child is a U.S. national (the mother is American), and upon learning of the child's citizenship, the U.S. consulate was contacted, and arrangements were made to transfer the child as an unaccompanied minor to the United States. The juvenile court in California issued a custody order on August 6, 2019 declaring the child a dependent of the court and ordering the child's placement with his maternal grandmother. The California court never contacted the Mexican court. The Father timely appealed, arguing a lack of jurisdiction under the UCCJEA.
The father's UCCJEA argument surrounds whether California or Mexico is the child's "home state." The Father argues Mexico is, but the state argues it could not be the home state because the child had not lived with a parent for 7 months before being transferred to the U.S. The father is correct. Home state, as defined in the UCCJEA, requires a child's residence for at least six months (minus any temporary absences) in the jurisdiction with a parent or a person acting as a parent. Mexican social services meet the requirement of "acting as a parent." Therefore, Mexico is the minor child's home state. California should have contacted the Mexican court. There is not sufficient evidence to find that the Mexican court declines to exercise jurisdiction over this child.
The court assessed whether the California court could have issued a temporary order using the emergency jurisdiction provisions of the UCCJEA, and concluded that it could. This does not permit the court to issue a final custody order. California courts have previously interpreted an emergency situation to include where a child "is in immediate risk of danger if returned to a parent's care." Even with exercising emergency jurisdiction, however, the California courts need to contact the courts in the child's home state of Mexico. The state argued that the failure to contact Mexico is harmless because Mexico would likely have declined jurisdiction. There is no evidence of this. The case was remanded so that the California judge could contact the Mexican courts, to ascertain whether Mexico would exercise jurisdiction over the child.
The opinion had a concurrence/dissent that discussed the standard for Mexico's declining jurisdiction. More simply stated, does Mexico need to actually overtly decline jurisdiction, or can it be inferred by Mexico failing to commit to protecting the child (by sending the child to the US) or refusing to discuss the issue of jurisdiction with a California court? The concurring judge opined that the Mexican court placed the child with the Mexican social services agency and empowered that agency to then transfer the child to California, and we can then infer Mexico is declining jurisdiction.