Wednesday, November 1, 2006
Page 3
C.A.: Courts May Not Modify Foreign Child Custody Order
By a MetNews Staff Writer
California courts may not modify child custody orders of a foreign court which has exclusive, continuing jurisdiction over a marriage dissolution, the Fourth District Court of Appeal ruled yesterday.
Eric Paillier and Christine C. Pence were married in California in 1992. They have one son, Brian Paillier, who was born in France in 1990, was raised in France, and has dual French and American citizenship.
In 1998 the couple initiated divorce proceedings in France, which resulted in a divorce decree awarding Pence physical custody of Brian and granted Paillier visitation. The French court enjoined Pence from taking Brian out of France for a period of time that would prejudice Paillier’s visitation rights. A French appellate court upheld the injunction in 2001.
Undeterred, Pence and Brian moved to California in 2003. Paillier then sought to have the French decree enforced in Riverside Superior Court, and requested an order that Brian be returned to France.
Judge Elisabeth Sichel ordered that Brian was to remain in Pence’s custody, but that Pence was to arrange for him to attend school in France. If Pence did not return to France with Brian, she was to make other arrangements for his care.
Sichel further ordered that if Brian did not return to France by July 1, 2005, Paillier would automatically obtain sole legal and physical custody, and could ask the district attorney’s Child Abduction Unit to assist him in having Brian returned.
By Aug. 18, 2005, Brian had not yet been returned to France. Sichel ordered the district attorney to take Brian into protective custody and return him to his father. Pence appealed, claiming that, in giving custody to Paillier, Sichel modified the French decree, in violation of the Uniform Child Custody Jurisdiction Enforcement Act.
The UCCJEA provides that “a court of this state shall recognize and enforce a child custody determination [defined as including both custody and visitation rights] of a court of another state” and “may utilize any remedy available under other laws of this state” to do so. It also provides that the remedies provided therein “are cumulative and do not affect the availability of other remedies.”
Justice Betty Ann Richli, writing for Div. Two, noted the legal pickle the trial court was in:
“[I]f it enforces Mom’s right to custody by allowing Junior to stay in California, it could be argued that it is failing to enforce (or even modifying) the award of visitation to Dad. On the other hand, if it enforces Dad’s right to visitation by ordering Junior returned to France, it could be argued that it is failing to enforce (or even modifying) the award of custody to Mom.”
Richli found a way out through Family Code Sec. 3444, which provides that a court may issue a temporary order enforcing either another state’s visitation schedule or the visitation provisions of a child custody determination that does not provide for a specific visitation schedule.
Richli first reasoned, with respect to enforcement of visitation rights, that Sec, 3444, being more specific, governs over the broad provisions requiring courts to enforce child custody determinations. She then reasoned that, since the French decree had a visitation schedule, under Sec. 3444 the schedule could be enforced, but other visitation provisions, such as the one prohibiting Pence from leaving France, could not.
Richli said:
“Of course, the French decree contemplated that visitation would take place in France. Indeed, the injunctive provision could even be viewed as a visitation provision, requiring this. The trial court, however, had no jurisdiction to enforce any visitation provisions other than the visitation schedule.”
Richli continued:
“If Eric came to California, the trial court could have required Brian to visit him according to the schedule. It erred, however, by requiring that Brian be returned to France.”
The jurist concluded:
“We agree that the trial court violated the UCCJEA by changing custody. We also agree that the UCCJEA required limited enforcement of the visitation schedule but prohibited the trial court from enforcing the other aspects of the visitation award, including the order that Christine not move away with Brian. This not only follows from the language of the UCCJEA, but also avoids any conflict between enforcing custody and enforcing visitation.”
The court reversed Sichel and remanded with directions that Brian be ordered returned to California unless a French court either declines jurisdiction or issues a contrary order that is entitled to enforcement under the UCCJEA.
Justices Jeffrey King and Douglas P. Miller concurred in the opinion.
The case is In re Marriage of Paillier , 06 S.O.S. 5742.
Copyright 2006, Metropolitan News Company