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Judge to Decide if California Has Jurisdiction Despite Montana Declaring That It Does
C.A. Directs San Diego Superior Court to Re-Examine Decision Quashing Service of Process on Father in Custody Dispute
By a MetNews Staff Writer
Div. One of the Fourth District Court of Appeal has remanded a case to the San Diego Superior Court for a determination as to whether California has jurisdiction over a child custody dispute, even though a judge in Montana has declared that his state has jurisdiction and has made orders in the matter.
Justice Terry B. O’Rourke authored the unpublished opinion, filed Tuesday. It reverses an order by San Diego Superior Court Judge Olga Alvarez quashing service of process on a Montana resident for lack of jurisdiction and based on Montana being the “most appropriate state” to handle the case.
Most of the issues raised in the appeal are left by the opinion for future determination. It leaves open the possibility that, in the end, two states could each assert jurisdiction over the same issues.
Parties’ Positions
Maira Horta Moss, the mother of a child born in San Diego in February 2018, wants the San Diego Superior Court to issue a domestic violence restraining order (“DVRO”) against the father, Chad Senechal, and to hold an evidentiary hearing to determine which state has jurisdiction as to custody matters. Senechal, in turn, contends that the mother “kidnapped” their daughter and has wrongfully spurned Montana orders to return her.
The parties, who are not married, agree that under the Uniform Child Custody Jurisdiction and Enforcement Act (“UCCJEA”) which both states have adopted, only one state can have jurisdiction.
“Montana is that state,” Senechal contended in his brief on appeal, pointing out that “Montana has exercised UCCJEA ‘home state’ jurisdiction over the child and made orders pursuant thereto.”
Moss countered:
“To the extent respondent suggests that the appellate court somehow loses its power to review a UCCJEA jurisdictional order once a different forum has asserted jurisdiction, he is…wrong.”
‘Home State’
Complicating the matter is that Family Code §3402(g)—a part of California’s UCCJEA—provides that a child’s “home state,” which has jurisdiction in custody cases, is “the state in which a child lived with a parent or a person acting as a parent for at least six consecutive months immediately before the commencement of a child custody proceeding.”
Moss has taken the position that there is no “home state” because the child has not been in any state for six months prior to the filing of her Seneschal action in San Diego Superior Court on Sept. 7, 2022 (on which day temporary emergency relief was granted). Her reply brief in the California Court of Appeal explains:
“Between September 2020 and September 2022, the child and mother alternated between Brazil and Montana, because they could not abide the long, cold winters and isolation in Montana. Their last stay in Montana, from April 22, 2022 through September 4, 2022, lasted slightly over four months.”
She asserts that she and Senechal had sold the house they jointly owned in Montana and were readying to return to San Diego; on Sept. 3, 2022, they argued over the division of the proceeds of the sale; he became violent; she stayed at a hotel that night and returned to California the next day with the child. The mother invokes Family Code §3421 which vests jurisdiction in a California court where there is no home state and “[t]he child and the child’s parents, or the child and at least one parent or a person acting as a parent, have a significant connection with this state other than mere physical presence”—which, she contends, applies.
Insisting that Montana is the home state, Senechal maintains that the trips to Brazil were merely temporary absences that do not count against the residency period in Montana which he states to have been for two years “immediately before” Moss filed her petition in San Diego.
Conference Call
On Oct. 18, 2022, a telephone conference call took place between Alvarez in San Diego and First District Court Judge Mike McMahon in Helena, Montana, with the parties participating.
McMahon expressed the view that Montana is the home state and the question was whether that factor was to “give way” to some other consideration.
Alvarez made note of §3421 and said that “there is a significant connection” to California based on “substantial evidence.” However, at the conclusion of the hearing, she announced:
“[T]he Court is going to determine—has ordered that Montana is the most appropriate state to exercise UCCJEA jurisdiction. The child has not resided in California since March of 2020. The child will be removed as the protected party under the temporary restraining order, and there are no orders at this time regarding visitation and custody.”
The following day, she denied Moss’s request for an evidentiary hearing, finding that the facts were not in dispute so there was no need to determine credibility.
Montana Court’s Action
On Dec. 15, 2022, Moss appealed Alvarez’s order. While that appeal was pending, Montana First District Court Judge Christopher Abbott on May 18, 2023, confirmed that Montana has jurisdiction, ordered Moss to appear in court with the child within 21 days, and to show cause why she should not be found in contempt for violating a previous order.
The Montana court on Sept. 8, 2022, had issued a emergency order to Moss to return the girl to Montana within 14 days. That order was issued one day after the court in San Diego assumed jurisdiction and issued a temporary DVRO against Senechal which ordered him to stay away from both Moss and the child and, on an interim basis, granting custody of the child to Moss and barring visitation by the father.
Moss, on July 11, submitted in the Montana Supreme Court a “petition for writ of supervisory control” challenging the contempt proceeding, but matters were apparently worked out, with Moss filing an unopposed motion to dismiss her petition. The state’s high court on July 20 granted the motion.
O’Rourke’s Opinion
O’Rourke wrote:
“We conclude remand is necessary given the basis for the San Diego court’s ruling. The court did not expressly rule that Montana was the child’s home state for purposes of UCCJEA jurisdiction….”
To the contrary, he said, Alvarez’s remarks imply that she “did not consider either state to be the child’s home state.”
He noted that while Alvarez’s reference to Montana being the “most appropriate state” to handle the matter would “suggest” a determination pursuant to Family Code §3427 that California would be an inconvenient forum, there was no explicit finding to that effect and there was no express weighing the eight factors enumerated in subd. (b).
Senechal argued in his appellate brief that the Court of Appeal “must review the trial court’s exercise of discretion based on implied findings that are supported by substantial evidence” and assume that Alvarez did determine Montana to be the home state. O’Rourke responded:
“[W]e cannot do so where the court’s analysis shows it believed there was no home state and thus the ‘significant connection’ analysis applied…, or that California was an inconvenient forum. We cannot imply findings if the court’s reasoning otherwise is clear from the record….Because the record indicates the court’s ruling was based on no state being the child’s home state and California being an inconvenient forum, we may not imply a finding that Montana was the child’s home state.”
Duty on Remand
The jurist declared:
“On remand, the court may clarify that it was deciding the question of home state jurisdiction. If the San Diego court intended to rule that Montana was the child’s home state under the UCCJEA, then…[Moss] may renew her request that the court grant her an evidentiary hearing with an offer of proof on that issue, or she may submit the proffered evidence to support her argument that California is the child’s home state.
“If the court intended to address whether California is an inconvenient forum and Montana is the more appropriate forum, it must consider and permit the parties to present evidence on all of the factors under section 3427, subdivision (b).”
The case is M.M. v. C.S., D081628.
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