Forum Non Conveniens in California Child Custody Cases

When parents and children have meaningful ties to more than one state, deciding which court should hear a custody dispute can become a case of its own. California may have authority to act under the Uniform Child Custody Jurisdiction and Enforcement Act, or UCCJEA. Even so, California is not always the most appropriate place for the case.

What Does Forum Non Conveniens Mean?

Forum non conveniens means an inconvenient or inappropriate forum. In an interstate child custody matter, it allows a court that otherwise has UCCJEA jurisdiction to decide that another state's court is better positioned to resolve the custody issues.

This is not simply a question of which parent prefers which courthouse. The court evaluates access to evidence, family safety, and each side's ability to participate. It also asks whether another state has a stronger connection to the child and the dispute. A parent may raise the issue, another court may raise it, or the California court may consider it on its own.

Jurisdiction Comes Before Convenience

A forum non conveniens analysis is not the first jurisdictional step. The court must first determine whether California has authority to make or modify a child custody determination under the UCCJEA. For an initial custody case, the child's “home state” is often central. That generally means the state where the child lived with a parent, or a person acting as a parent, for at least six consecutive months before the case began. A different rule applies to a child younger than six months.

Generally, physical presence alone does not establish ordinary custody jurisdiction. The current UCCJEA jurisdiction provisions address home-state jurisdiction, significant connections, emergency authority, continuing jurisdiction, and changes to another state's order. Section 3421 also contains a special rule for a child present in California to obtain gender-affirming care. Which provision applies depends on the child's residence history and any existing case or order. The jurisdiction question is separate from the usual California child custody filing process.

The Eight Factors California Courts Must Consider

Section 3427 directs the court to allow the parties to submit information and then consider all relevant factors, including these eight:

1. Domestic violence and safety: whether domestic violence has occurred, is likely to continue, and which state can best protect the parties and child.
2. Time outside California: how long the child has lived outside this state.
3. Distance: the travel required between the competing courts.
4. Finances: the degree of financial hardship to the parties in litigating in one forum rather than the other.
5. Agreement: any agreement between the parents about which state should assume jurisdiction.
6. Evidence: the nature and location of evidence needed to decide custody, including testimony from the child when appropriate.
7. Speed and procedure: each court's ability to decide the issue promptly and the procedures needed to present evidence.
8. Familiarity: how familiar each court is with the facts and issues in the pending litigation.

No single factor automatically controls every case. A court may give substantial weight to safety in one matter and to the location of the child, records, and witnesses in another.

Section 3427 also contains a specific limit: when gender-affirming health care or mental health care for the child is at issue, California must not find itself an inconvenient forum if the other state's law or policy limits a parent's ability to obtain that care for the child.

Domestic Violence and Emergency Jurisdiction

Domestic violence is the first factor listed in section 3427. A court should assess what has happened and where protective orders can be enforced effectively. It must also consider which forum can best protect the child and the affected parent. Police reports, restraining orders, medical records, threatening communications, and evidence about access to safe housing may be relevant.

Under Family Code section 3424, California has temporary emergency jurisdiction when a child is present here and has been abandoned, or emergency protection is necessary because the child, a sibling, or a parent faces mistreatment or abuse. The statute also addresses a child unable to obtain gender-affirming health care or mental health care. Emergency authority is distinct from a final forum decision. If another state has an existing custody determination or proceeding, section 3424 requires immediate court-to-court communication and addresses the temporary order's duration.

What Happens If California Declines Jurisdiction?

If California is an inconvenient forum and another state is more appropriate, the court must stay the custody proceeding. The stay is conditioned on a custody case starting promptly in the designated state. The California court may impose other conditions it considers just and proper.

This is more precise than saying the case is automatically “transferred.” The parents may need to open or continue proceedings in the other state. The two courts may also communicate about jurisdiction. California may decline only the child custody portion while keeping other parts of a divorce or family law case. When California is clearly an inappropriate forum, section 3427 permits the court to require the party who started the California case to pay necessary travel and other expenses, including attorney's fees, incurred by the other parties or their witnesses.

Evidence That Can Help the Court Compare Forums

A useful presentation is specific rather than conclusory. Depending on the case, the court may need:

• a dated timeline of the child's residences, school enrollment, travel, and time with each parent;
• copies of every custody order, filing, and hearing notice from California or another state;
• the locations of teachers, doctors, therapists, relatives, evaluators, and other potential witnesses;
• realistic travel costs, work constraints, financial records, and options for remote testimony;
• safety evidence, including protective orders and the availability of local enforcement; and
• information about upcoming hearings, existing discovery, and each court's knowledge of the facts.

Parents should avoid changing a child's residence or withholding the child merely to gain a perceived jurisdictional advantage. The UCCJEA has separate rules for unjustifiable conduct, and relocation can create additional custody and enforcement problems.

Common Misunderstandings

“The child is in California, so California controls.” Not necessarily. Presence can support temporary emergency jurisdiction in limited circumstances, but ordinary UCCJEA jurisdiction depends on statutory requirements.

“The parents agreed on California, so the court must keep the case.” The parties' agreement is relevant, but it is only one factor. The court still evaluates the full situation.

“The inconvenient-forum ruling decides custody.” It decides where the custody issues should be heard. It does not decide which parent should receive custody or what parenting schedule serves the child's best interests.

When to Speak With a California Child Custody Attorney

Interstate custody questions are time-sensitive. Filing sequence, existing orders, emergency allegations, and court-to-court communication can affect the available path. Legal advice is especially important when another state already has a case, a parent plans to relocate, the child recently arrived in California, or there are domestic violence concerns.

Mahdavi & Mahdavi Family Law helps parents evaluate California jurisdiction, forum non conveniens disputes, and the evidence needed to protect a child's stability. To discuss an interstate custody matter, request a consultation or learn more about our California child custody practice.