EARL L. HAFER, JR., Pеtitioner, v. THE SUPERIOR COURT OF SAN DIEGO COUNTY, Respondent; JULIA SANDRA FIELDS, Real Party in Interest.
Civ. No. 26034
Fourth Dist., Div. One.
Dec. 16, 1981.
126 Cal. App. 3d 856
Brav & Schwartz and Steven N. Schwartz for Petitioner.
No appearance for Respondent.
Matthew Nelson Lees for Real Party in Interest.
BROWN (Gerald), P. J.—In this child custody modification proceeding the mother Julia Sandra Fields has, in our opinion, improperly sought the assistance of the San Diego Superior Court to change physical custody to herself after the children have lived more than three years with their father, Earl L. Hafer, Jr., in Idaho.
The original dissolution decree from the San Diego Superior Court dated September 27, 1977, gave the parents joint legal custody of the two girls, now aged seven and nine, with physical custody to Earl and visitation rights to Julia. The children have lived with Earl in Idaho since then except for a period when Julia admittedly abducted the chil-
On June 30, 1981, Julia filed a child custody modification aсtion in San Diego, based on alleged medical neglect of the children by Earl. Earl opposed the petition on jurisdictional grounds under the Uniform Child Custody Jurisdiction Act (UCCJA). He contended Idaho, which has adopted the UCCJA, is the proper forum. At a hearing on July 7, 1981, the superior court assumed jurisdiction of the case, but ordered the children to be returned to Earl in Idaho where they were to start school by August 24, 1981. The younger child is deaf and attends a state school for the deaf and blind in Idaho. The superior court did not find an emergency existed nor that the children were neglected or abused, but based jurisdiction on the fact the San Diego court had rendered the original custody decree, hence retained continuing jurisdiction to modify it provided there was no pending proceeding in Idaho.
Earl petitioned this court for a writ of prohibition on August 4, 1981, contending lack of jurisdiction in the California court, improper venue, and unclean hands on Julia‘s part because of child stealing. After the time for preliminary opposition had lapsed, and no response had been received, this court issued an alternative writ of prohibition on August 19, 1981, strongly urging the superior court to reconsider its order assuming jurisdiction because it rested on an incorrect basis (for reasons to be discussed). Meanwhile, unknown to this court, the superior court on August 18 had made a chambers order after an untranscribed conference, permitting Julia to retain custody until August 31, when further proceedings were scheduled.
However, after we issued the order for alternative writ, the superior court held a hearing on August 21, 1981, at which it declined to change its order. It continued to permit the children to remain in San Diego with Julia pending investigation.
At the August 21 hearing, the аttorney for Julia tendered hearsay evidence which the court recognized was not in proper declaration form. The attorney made accusations Earl had neglected dental care for the younger child as well as a painful ear problem and had not obtained medical attention for the older girl‘s bladder infection, as well as other similar accusations. The attorney argued there are substantial contacts between the children and California consisting of “a significant number
“But, it is my concern that the children apparently have been neglected in a medical sense; they apparently have been left alone in a physical sense on occasions; and it was my opinion that it was in the best interest of these children that this state assume jurisdiction and that there was in fact a significant connection, through the families, with the State of California for the children; that there was evidence here concerning their education, both past and present, and concerning their medical protection and their medical treatment as well as their future care and protection.
“It was those things I had in mind. Whether they will be found to be sufficient, I don‘t know.”
Meanwhile, this court on August 21, 1981, granted Earl a stay of all proceedings in the superior court, and ordered the children to be returned to him by August 24, in harmony with the superior court‘s original July 7 order.
On September 3, 1981, Earl filed here an affidavit re contempt seeking to hold Julia in contempt of this court‘s August 21 order. Earl alleged he had resided at the same address in Gooding, Idaho, for more than three years; Julia is aware of the location of the residence and has
In responding to the contempt charge, Lees claimed on August 18 the superior court made its chambers order permitting Julia to retain custody until August 31, and she took the children on a camping vacation and could not be personally reached. However, at oral argument Lees said Julia was in his office on August 31, she is now in California with the children and she knows of our August 21 order to deliver the children.
Facts
The petition for writ of prohibition filed here states the dissolution decree was granted in September 1977, and the children have lived with Earl in Idaho since that time, more than three years. The younger girl attends a state school for the deaf and blind, where Earl is employed. It alleges all the evidence of the girls’ home life and schooling for the past three years is based in Idaho. Attached to the petition are letters from the superintendent and the director of education of the state school in Idaho stating Earl provides a loving home for the girls and they are doing well in school. A letter from the health supervisor at the school states the girls are healthy, happy and well cared for.
At the July 7 hearing a court counselor testified. She recommended a full custody evaluation and in the interim, the mother have the children for August and they return to school in Idaho pending final resolution
Later, in connection with further proceedings in the superior court after we issued our alternative writ, counsel for Julia filed documents with the superior court including his declaration which admitted Julia‘s child stealing and stated she was “legally wrong but morally right.” It contended Earl ignores the medical complaints of the girls and neglects them. Also, allegedly, he leaves the older girl to babysit the younger one, allows them to eat foods they are allergic to, and is not a loving parent. He attaches the letter of a psychologist dated August 5, 1981, which states, after 12 hours of interviewing with the mother, the children, and the new husband, that the girls are inseсure and unhappy with the father and need their mother. It says the father does not take them out to “fun” activities, disciplines them harshly with a hairbrush and a stick (according to the girls, aged nine and seven) and is not loving, and both children wish to stay with their mother. It claims giving custody to Earl originally was a mistake and was done because Julia, who is deaf, did not fully understand the import of the legal documents. Allegedly Earl was abusive to Julia during marriage, repressive and occasionally violent. (Yet she voluntarily left the children in his custody when she left him.) The letter concludes Julia is warm, loving and caring and should have custody. The psychologist expresses no opinion of Earl, since they have never met. The letter states no facts of immediate emergency to the girls’ welfare.
At the hearing of August 21 the investigator testified. She said, based on three hours spent with the girls, their mother and an interpreter, the children are extremely close to their mother and wish to live with her and not return to their father. They told the counselor their father does not believe them when they tell him they are ill, but their mother takes them to the doctor. Their father sends them to their room or spanks them with a switch if they disobey. Also they have been left alone on occasion when they were as young as six and eight. Further, the counselor said she received a report from a San Diego dentist which shows Julia took the younger child to him December 27, 1980, during visitation, and the child needed cleaning and filling of numerous teeth, and the situation appeared to be one which should have been routinely taken care of by a custodial parent.
Other evidence offered to this court consists of Julia‘s notes describing alleged incidents of medical and dental neglect. She claims the
Discussion
Earl contends the superior court lacks modification jurisdiction under the UCCJA,
We agree there is no demonstrated basis for jurisdiction here. The home state is Idaho, there are no substantial demonstrated contacts proved or alleged between California and the children, there is no emergency, and a forum is presumptively available in Idaho, a state in which the UCCJA is in effect, and where the children have lived for more than three years. Further, the superior court erred in finding jurisdiction here simply because no proceeding was then pending in Idaho. The UCCJA is intended to prevent potential as well as actual conflict, and prevents bringing modification procedures in unsuitable forums without making a bona fide attempt to invoke the jurisdiction of the correct court. (See Clark v. Superior Court, supra, 73 Cal.App.3d 298; In re Marriage of Steiner, supra, 89 Cal.App.3d 363; Schlumpf v. Superior Court, supra, 79 Cal.App.3d 892.) The venue would be improper even if there were jurisdiction, and also, there exists adequate basis to deny
In our order for an alternative writ, we stated the legal reasons why the superior court lacks jurisdiction over this modification procedure and invited the superior court to comply voluntarily, to savе time and money and expedite initiation of proceedings in the correct forum in Idaho. Unfortunately, the superior court did not see fit to follow these clear directives, possibly under a mistaken impression we had not fully considered the matter. To the contrary, however, we stated our reasons precisely because we had fully considered all available information in the record as well as the relevant legal issues and had reached a reasoned decision requiring relinquishment of jurisdiction, which we attempted to effect as speedily as possible because in child custody disputes particularly, time is critical and delay harms all parties. We had no power to issue a peremptory writ in the first instance (
The dissent states our ruling prevents the superior court from determining its own jurisdiction here. However, the superior court in fact decided it did have jurisdiction. The judge said, “I originally assumed jurisdiction and ordered a full custody investigation.” The issue before us is whether a valid basis for such jurisdiction could be demonstrated.
Conceding there is no evidence of emergency in this record, the dissent states such evidence might have been proved. Here, however, we have a situation where children have been removed from their home of over three years’ duration and brought into another state to secure a custody modification. This action interrupted the continuity and stability of their daily life and disrupted their relationship with their father. Certainly if the mother had described a situation of peril to the children requiring their immediate removal, then it would be the responsibility of the chosen forum to afford an opportunity to prove such charges. If, however, the alleged facts, even if assumed to be true, do not show such peril, then there is no justification for holding a full-fledged, time-consuming custody investigation, in a forum far from the home state.
Here the mother has completely failed to describe any emergency condition warranting her harmful and lawless conduct. If the father is somewhat harsh, insensitive, too quick to discipline, that is not imminent child abuse. His possible slowness to diagnose medical problems or provide treatment is not such neglect as would warrant deprivation of custody on an emergency basis. We talk here of allegations of dental neglect, unawareness of early symptoms of bladder infection, possibly some spankings with a “switch” or hairbrush. This alleged neglectful and harsh parenting has been going on for more than three years. Is this tantamount to an emergency requiring removal of the children to California for a custodial modification procedure?
Under the UCCJA, the emergency concept is a narrow exception to home state jurisdiction, applying only in cases of genuine
Jurisdictional disputes under the UCCJA are not “technical” in the sense of being irrelevant to the welfare of the living children involved. On the contrary, the act exists and defines jurisdictional rules to best serve the interests of the hapless children of divorce. The purpose of the act, as stated by its drafters and by all the commentators, is to maximize continuity and stability in the lives of these children and to minimize disruption caused by continual dislocations and custody battles of the warring parents. The act aims to make definite and predictable rules of choice of forum by which the parties must abide. If the courts do not enforce these rules in all cases, the parties will continue to
In re Marriage of Carney (1979) 24 Cal.3d 725, 730-731 [157 Cal.Rptr. 383, 598 P.2d 36, 3 A.L.R.4th 1028], strongly emphasizes children‘s needs for stability and continuity. So also does the act.4 The home state concept is therefore of the utmost importance in the act, requiring the courts, when possible, to choose that forum to adjudicate custody disputes. The children‘s home is the presumptively correct forum. A showing of need to change custody does not alter the fact the modification process will be less harmful to the children if conducted near their present home. Thus, here no reason appears to favor the California forum unless one assumes inability of the Idaho courts to decide the matter fairly. There is no factual or legal basis for such an assumption and it violates the full faith and credit doctrine. It is counterproductive to the aim of continuity, which the act seeks to uphold, to drag children, as here, into a distant state to litigate and relitigate custody, simply because the noncustodial parent desires it.
We note too, in the present case, the superior court‘s decision not to make a forthright finding of “emergency” is strong circumstantial evidence of the absence of any real emergency. The court‘s real concern was the wisdom of the choice of custodial parent. That concern, we repeat, must be litigated in Idaho where the children live. Had there been any hint of real emergency here, we doubt the findings would have been
Similarly, the so-called “clean hands” doctrine is intended to further the act‘s purposes, not to punish the noncustodial parent. Whether Julia will ultimately be punished by contempt procedures for her lawlessness is not relevant to the question whether the California forum should be denied to her to disсourage future abductions, both by her and by all parents similarly situated. We, as a court of law, must consistently refuse to condone what has happened here if the aims of the act are ever to be achieved. It is essential to discourage parents from unnecessary child stealing. So long as they have any hope of succeeding in such maneuvers, provided they allege a sufficient level of parental neglect, they will continue, regrettably, to engage in such conduct. The Legislature has decided such conduct is not in the children‘s best interests. When we apply the law we act in the children‘s interests.
Judges are not Solomons or gods. We cannot know, any more than any mortal can, what custodial situation is correct in every situation. We do know, however, what rules govern the choice of forum. It is our job consistently to enforcе those rules. The UCCJA‘s jurisdictional mandate requires child custody litigation to take place in the home state absent compelling justification for removal. The rule exists to prevent abduction, child stealing, and forum shopping, all of which conduct the Legislature finds to be in the best interests of no one. Our decision here fulfills the mandate of the law. No case we have found permits removal from the home state on a showing remotely comparable to what we have here. There is no justification to permit it.
Order to Show Cause re Contempt
This court has both the power and the duty to enforce its orders, specifically our order of August 21 decreeing return of the children to Earl
Disposition
Let a writ of prohibition issue as prayed, preventing all further proceedings in the San Diego Superior Court as to child custody modification, other than contempt proceedings, as described below. The superior court shall entertain no further modification proceedings unless real party shall demonstrate unavailability of a suitable Idaho forum.
If Earl still desires to seek sanctions against Julia for contempt of our August 21 order, he may file an order to show cause in the superior court and may serve it on Julia‘s counsel in lieu of personal service. If he does so, then the superior court shall issue the order, set the matter for hearing, and take evidence as in any civil contempt procedure and shall order whatever sanctions appear appropriate.
Cologne, J., concurred.
STANIFORTH, J.—I respectfully dissent.
I
At bedrock is this proposition of law which controls our writ issuance: “[A] tribunal has jurisdiction to determine its own jurisdiction.” (Abelleira v. District Court of Appeal (1941) 17 Cal.2d 280, 302 [109 P.2d 942, 132 A.L.R. 715].) And the appeal court does not interfere until the trial court has performed this threshold function. As the Supreme Court stated in Rescue Army v. Municipal Court (1946) 28 Cal.2d 460, 464 [171 P.2d 8]: “A court has jurisdiction to determine its own jurisdiction, for a basic issue in any case before a tribunal is its power to act, and it must have authority to decide that question in the first instance. It is necessary, therefore, to challenge the jurisdiction of the trial court in that court [italics in original], by demurrer, motion, plea or other objection of some kind, so that that court [italics in original] may prelim-
The first California case to examine this concept in the context of a trial court‘s duties vis-à-vis the appeal court‘s function, Abelleira v. District Court of Appeal, supra, 17 Cal.2d at page 302, held: When the trial court has merely taken the question of whether it has jurisdiction under consideration, there is no reason for appellate interference pending its decision. The Supreme Court explained the roots of this rule: “It has its origin mainly in the cases holding that a court has inherent power to inquire into jurisdiction of its own motion, regardless of whether the question is raised by the litigants. [Citations.] It rests also upon the theory that until the court determines that it has jurisdiction and does some act in consequence, there can be no injury to the party who denies its jurisdiсtion. [Citation.] It means only that the trial court or lower tribunal or body to which the question is submitted has such jurisdiction to make the first preliminary determination—not a final one; and no interference is permitted until it does decide the matter one way or the other. Until it acts to assume or refuse jurisdiction over the merits no one is entitled to complain. (Italics added.)
“But once the tribunal, judicial or administrative, has made this determination of the issue, and has acted to assume jurisdiction of the cause, the rule no longer has any meaning. The jurisdiction to determine jurisdiction has been fully exercised by a determination in favor of jurisdiction over the cause; the question is no longer of jurisdiction to determine, but of jurisdiction to act. And jurisdiction to act is always a subject of inquiry by a higher court.” (Id., at pp. 302-303.)
This distinction was emphasized in Rescue Army v. Municipal Court, supra, 28 Cal.2d 460, 464-465: “When, however, the trial court has heard and determined the jurisdictional challenge, and has deсided in favor of its own jurisdiction, and then proceeds to act, that is, to try the cause on its merits, the situation is entirely different. It then may be properly claimed that a court without jurisdiction is purporting to exer-
II
The wisdom of the foregoing rule shines forth crying for application to the fact matrix here. The record reflects:
1. The marriage of these parties was dissolved in final decree of dissolution in the superior court, San Diego, January 5, 1978.
2. By agreement (Sept. 1977) the parties had “joint legal custody” of Dawn, then seven and Sarah, then five years old, but the father had “physical custody” with “liberal rights of visitation” reserved to the mother.
3. The mother (in 1980), without consent of the father, took the children from the father‘s home in Idaho.
4. On June 30, 1981, the mother pleaded no contest to the charge of child stealing in the San Diego Superior Court.
5. The mother (June 30, 1981) brought a petition in the superior court to modify the 1977 custody order.
7. On July 7, 1981, the husband filed his memorandum of law in the superior court proceeding, contending the California courts “lack jurisdiction to consider issues of child custody in this case.”
8. A hearing was held in the superior court on that same day. The mother‘s attorney objected to the filing of the memorandum “received this morning” and asked for opportunity to file opposition points and authorities. The parties admitted the children were in California.
An argument by counsel then followed expressing the legal contentions of the respective parties. Counsel for the mother argued (a) there was evidence of “mistreatment and abuse” of the children over a three-year period and made reference to dental problems and failure to provide needed medical care. The mother‘s counsel also requested an interview with the children by the conciliation court counselor. The court, based on this preliminary discussion, observed “Mr. Hafer does not appear to wish to seek the services of the Idaho court—at least he has not done so as of yet” and then concluded “I think in the best interests of the children this Court should assume jurisdiction at this point . . . .” The court then ordered the parties and children to see the conciliation counselor.
9. A further hearing (the same day) followed at which the counselor recommended a “full custody evaluation” and the mother keep the children until the end of August and then return them to the father in order to start school in Idaho.
The counselor also reported the girls (now ages seven and ten) told her they wanted to live with their mother “because the father is mean to them,” uses switches, hairbrushes, hits them, punishes them by leaving them alone and sends them to bed for two to three hours.
The court then ordered a full term custody investigation and set the matter for hearing on October 30, 1981.
10. Mr. Hafer, in face of his written consent to the court‘s exercise of jurisdiction, petitioned this court for writ of prohibition, objecting to the
This court (the undersigned not participating) on August 21, 1981, in the context of yet unresolved factual issues presented by Mr. Hafer‘s challenge to jurisdiction, issued its order staying all proceedings and ordering the children returned to the father‘s custody “before August 24, 1981.”
III
At the epicenter of this melee of battling lawyers and angry parents are two small children who are being injured by this ongoing tug-of-war. Both children have serious health needs, both are being battered emotionally by the blind, the ungenerous, the unwise who in the name of love would destroy them. This is not the case for a California court to wash its hands of the whole unhappy affair.
Counsel for the mother has repeatedly made charges—but never in the proper forum—of child abuse. There has been no hearing on the preliminary issue of jurisdictiоn to hear the custody motion. The question for the purpose of jurisdiction is whether an emergency exists. If the children are being harmed in a medical sense by the father‘s lack of care, it should be so found by a superior court as a preliminary fact to assuming jurisdiction. A psychologist has represented by letter the children are being harmed in an emotional sense by a harsh cold father; these facts need be placed before the trial court in a proper hearing to determine jurisdiction.
If the father is cruel, so harsh in the treatment of the children as to cause them to express their desire not to live with him, this need be proven as fact. If such be the facts, then there exists express legislative authority for the superior court, San Diego, to accept jurisdiction and hear the custody petition.
Also, counsel for the mother has tendered conclusions and some few facts referent to the variety of substantial contacts these children have with San Diego, California. Again, these matters were argued at the July 7 hearing but never proffered in proper evidentiary form before a trier of fact.
In face of the paucity of hard evidence before the trial judge, it must be сonceded there is now no substantial evidence to support a finding of jurisdiction under the UCCJA. However, a wrong is permitted, where a host of reasonable suspicions of harm to the children have been raised. The trial judge had lawyer representations plus some hard facts from the counselor, who consulted at length with the children, which gave rise to a rational suspicion that the children were being neglected. This counselor, a disinterested, skilled person, requested a full custody investigation. This court, on these facts should remand the matter for an appropriate jurisdictional hearing. If it be found there is no emergency, no abuse, or maltreatment of the children, no basis for jurisdiction under the UCCJA exists; then these children should be returned to the father forthwith.
IV
My brethren also find the mother guilty of unclean hands. Whether her hands are “clean” depends upon the answer to this primary jurisdictional question: Is Mr. Hafer аs bad a parent as is contended? The fact of the removal of a child without consent of the custodial parent does not ipso facto create unclean hands and lack of jurisdiction to determine custody. In child custody proceedings, the question of clean hands of the parents should be subordinated to the court‘s primary concern—the child‘s best interest. (Bosse v. Superior Court (1979) 89 Cal.App.3d 440, 444-445 [152 Cal.Rptr. 665]; In re Marriage of Leonard, supra, 122 Cal.App.3d 443, 466-468; see also Woodhouse v. District Court, etc. (1978) 196 Colo. 558 [587 P.2d 1199, 1200]; In re Marriage of Verbin (1979) 92 Wn.2d 171 [595 P.2d 905, 909, 910], Williams v. Zacher (1978) 35 Ore.App. 129 [581 P.2d 91, 96], Nehra v. Uhlar (1977) 43 N.Y.2d 242 [401 N.Y.S.2d 168, 372 N.E.2d 4, 8-9].) The Supreme Court of Washington reasoned: “We note, however, that even under section 8 of the Uniform Act [
The majority opinion suggests we confront purely a technical question of jurisdiction and therefore the court cannot look to the best interest of the children. Such concept is contrary to the express language of
In a most recent case, the balancing approach was used in determining whether to decline jurisdiction after mutual “child-stealing” incidents. (In re Marriage of Leonard, supra, 122 Cal.App.3d 443.) Under Leonard, “unclean hands” did not mandate a refusal of jurisdiction. The Leonard court refused to apply sanctions because it would not be in the best interest of the child. (Id., at pp. 464-465.) It must be conceded that both the statute and the case law recognize that the imperative to discourage abduction must, when necessary, be submerged to the paramount concern in all custody matters: the best interest of the child. Otherwise “[t]he dignity of the several courts would be preserved, but the welfare of the children would be destroyed.” (Matter of Lang v. Lang (1959) 9 App.Div.2d 401, 405 [193 N.Y.S.2d 763, 767], affd. 7 N.Y.2d 1029 [200 N.Y.S.2d 71, 166 N.E.2d 861].)
This case involves a collision of legal principles as well as the intransigence of the would-be custodians of these two hapless children, innocent subjects of a conflict they neither want nor can ever understand.
The majority opinion effectively prevents the trial court from performing its mandated function of holding the necessary fact finding hearing to determine the validity—or invalidity—of the mother‘s claim to jurisdiction under the emergency rule (
We confront here a charge of child abuse, undocumented but of sufficient prima facie weight to cause a most capable and sensitive trial judge—in face of admitted child abduction—to continue the children in the custody of the mother. Our concern for what must be the “paramount” issue in any child custody case—the best interest of the child—requires equal insight and concern. This matter should be remanded with direction to the trial court to determine the preliminary jurisdictional fact questions tendered.