Child custody in California: where is the proper venue for deciding child custody matters; change of venue

Child custody: where is the proper venue for deciding child custody matters; change of venue

The difference between jurisdiction and venue in custody matters.

Jurisdiction refers to the power of courts in a particular state to make decisions about custody.  Venue refers to the particular judicial geographic area, usually the County, within a state where the action should be filed and heard.

Jurisdiction over Custody issues

Any California court has jurisdiction to make an initial decision about the custody and visitation for a minor child if the child has been living continuously in California with a parent or person acting as a parent for the six months immediately before the commencement of the proceeding involving child custody matters.

Once a California court has issued a custody order and/or judgment, California has continuing and exclusive jurisdiction over subsequent issues involving custody and visitation.  California’s jurisdiction over the modification or enforcement of the order continues until a court determines that the child and the parents no longer reside in California, or a California court determines that the child and one of the parents does not have a significant connection to California, and substantial evidence is no longer available in California concerning the child’s care, protection, training and personal relationships.

Venue over Custody issues

Assuming the child has been living in California for six months, any California court will have jurisdiction to handle such a case, however, the county in which the action should be brought, i.e. the venue, is where at least one of the parties has resided for at least three months in the case of a divorce, and for an initial petition involving custody without a divorce, the county where the child and a parent or person acting as a parent resides.

Any post judgment issues involving custody should be brought in the county where the underlying order or judgment has been issued, subject to a motion for change of venue in appropriate circumstances.

Changing Venue at the beginning of the divorce or other Custody proceeding

Assuming jurisdiction and venue is otherwise appropriate, a party may ask the court to change venue “when the convenience of witnesses and the ends of justice would be promoted by the change.“ [California Code of Civil Procedure section 397 subdivision [c], & subdivision (e).]  Note that it is the convenience of the witnesses, and not the convenience of the parties. [Although it could be argued that the convenience of the party would fall under the ends of justice rationale].

Factors considered by the court include where evidence and witnesses concerning the child’s care, protection, training and personal relationships can be found, where the children and parties reside and the general convenience of keeping or changing venue. Courts have broad discretion in making decisions around changing venue [assuming that venue is not otherwise prohibited by statute], and they are largely fact driven determinations, dependent on the particular circumstances of each case.

Typically, the motion for a change of venue must be brought early in the action, and in any and event, “within a reasonable time” after commencement of the action, or from when the reasons for the change of venue become apparent.

Changing venue after the divorce judgment has been issued.

Change of venue after a divorce judgment has been issued is appropriate when both parties have moved from the county that issued the divorce judgment, “when the ends of justice and the convenience of the parties would be promoted by the change.” [California Code of Civil Procedure section 397.5] Note in this situation it is the convenience of the parties, and not just witnesses.

It is an open question whether a post judgment motion for change of venue would be appropriate when only one of the parties has moved out of the county where the divorce judgment was entered.

It certainly could be argued that since the statute dealing with a post-judgment change of venue covers situations where both parties have moved out of the county, it is implied that it is not appropriate to change the venue where only one party has moved out of the county because the legislature could have said only one party need have moved if that’s they intended to allow a change of venue in either situation.

On the other hand, if the party who has moved out of County has sole or primary custody, it is arguable that a change of venue might be warranted under the general statute dealing with the grounds for a change of venue [California Code of Civil Procedure section 397], assuming those grounds, such as the convenience of the witnesses and the ends of justice, support such a move.

Since the courts have broad discretion in deciding change of venue motions, it is likely the court’s decision either way would be upheld if challenged on appeal.

If  you have further questions regarding child custody, please contact Martin "Jamie" Elmer, family law attorney in Berkeley, California, at (510) 644-2411 or by email, for a free initial consultation.