In order for a court to hear a case, it has to have jurisdiction over the case. Family courts have jurisdiction over family law matters such as dissolution, legal separation, or a request or modification of child custody, child support, or spousal support. This means that if you have a family law matter, it must be brought in family court. The question of which family court may hear your case is determined by the rules of Venue.
Venue is the specific location or county where a lawsuit is filed and heard in court. The concept of venue ensures that lawsuits are heard in a fair and convenient location and considers factors such as the location of the parties involved. In many family law proceedings, venue is proper (meaning an action may be filed) in the county where either the petitioner or respondent has been a resident for three months. If the action is to enforce a support obligation, venue is proper where the child resides. C.C.P. §395(a).
Changing Venue Within California
There are many situations in which the venue that was originally chosen is no longer convenient, including moving out of the county. If the court where the case was originally filed is no longer convenient anymore, you can ask the court to transfer venue to a more convenient location by filing a motion with the court.
Under California Code of Civil Procedure section 397.5, in an action for divorce or legal separation where both parties have moved away from the county where a court order was made, the court may order that the case be transferred over to a new county where either party now resides, if such a transfer would result in the promotion of the ends of justice and convenience.
The court can also change venue when the original court did not have proper venue to begin with, there is evidence to indicate that the current court cannot provide a neutral trial, it is more convenient for witnesses, there is no qualified judge, or to the county of respondent’s residence in a divorce proceeding. C.C.P. §397.
Changing Venue Out-of-State
Transferring a family law case to an out-of-state venue is different than transferring venue to a different county within California. For example, every state handles the division of marital property in a divorce proceeding differently. Changing venue to a different state with different laws can have a great impact on the outcome of a case involving the division of property.
Additionally, every state has different residency requirements for how long you have to have been a resident of the new state before you can file a case. If you wish to transfer a dissolution action to a different state, you must ensure that the residency requirements of that state are met.
Changing Venue Out-of-State in Child Custody Proceedings
The rules for changing venue to another state in child custody cases differ from an ordinary change of venue because of the Uniform Child Custody Jurisdiction and Enforcement Act or UCCJEA. The UCCJEA determines which court should decide a child custody case. A child custody or support case can be heard in the child’s home state or the state that the child has the most significant connection to.
If you are a parent who obtained child custody orders in a California court and now live in a different state, but wish to modify those orders: California has exclusive, continuing jurisdiction over custody determinations unless the child or child’s parent(s) no longer have significant connections with California or unless the child and the child’s parent(s) no longer live in California. California Family Code section 3422.
Generally, if child custody orders were made in California and you have since moved to a different state, you must return to California to request a modification of that order, unless the California court declines to exercise jurisdiction as discussed below.
If you obtained child custody orders in a different state and now live in California: California cannot modify custody determinations made by a different state unless California has proper jurisdiction to make initial custody orders and the other state determines that California would be a more convenient forum, or it is determined that the child and parent(s) no longer reside in the other state. California Family Code section 3423.
When a California Court Can Decline to Exercise Jurisdiction
If California does have jurisdiction to make child custody orders, it can decline to exercise its jurisdiction if it determines that: (a) the California court is an inconvenient forum, and (b) an out-of-state court would be more appropriate. In making this determination the court considers many factors under California Family Code section 3427, including:
Domestic Violence: If the case involves past, present, or the possibility of future domestic violence incidents, a California court looks at which state would best protect the affected parties and child.
Out-of-State Residence: The amount of time that a child has resided outside of California.
Distance: The distance between the California court with jurisdiction and the court in the state that would undertake the case.
Financial Hardship: Which court would cause the most financial hardship on the parties if their case was litigated there versus in another court.
Agreement of the Parties: Any agreement made by the parties as to what state would have jurisdiction.
Evidence: Where evidence necessary to resolve a case is located.
Court’s Abilities: The ability of each court to decide the issues and each court’s familiarity with the issues presented in the child custody case.
After considering all of the above factors, a California court can determine that an out-of-state court would be a more appropriate forum.
Temporary Emergency Jurisdiction Under UCCJEA
A California court can also exercise jurisdiction on a temporary emergency basis under California Family Code section 3424 if the child is present in the state and has either (a) been abandoned, or (b) is in danger of mistreatment or abuse.
Navigating The Change of Venue Process
Changing venue in California family law proceedings is a complex process that requires a strong legal basis and supporting evidence. It is essential to consult with an experienced family law attorney to ensure compliance with the applicable rules and to present a persuasive case to the court.
Harris & McKeown’s team of Certified Family Law Specialists has been assisting clients throughout Southern California with their family law matters for over 10 years.
If you would like to discuss a change of venue in a confidential consultation with a Certified Family Law Specialist, schedule an appointment online or by calling (949) 297-6529.
**DISCLAIMER**
THIS INFORMATION IS PROVIDED FOR INFORMATIONAL PURPOSES ONLY.
EVERY CASE IS DIFFERENT AND THIS GUIDE SHOULD NOT BE CONSTRUED AS
LEGAL ADVICE. THIS ARTICLE DOES NOT CREATE AN ATTORNEY CLIENT
RELATIONSHIP BETWEEN THE READER AND ITS AUTHOR. IF YOU HAVE LEGAL QUESTIONS, CONSULT WITH A FAMILY LAW ATTORNEY.