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Santa Clara Custody Order Is in Effect, Contrary Chinese Order Isn’t—C.A.
Opinion Explains That Beijing Court’s Order Is Stayed During Pendency of Appeal
By a MetNews Staff Writer
The courts of China will have the final say over the custody of a girl who primarily resides there, the Sixth District Court of Appeal held yesterday, but until there’s a resolution of the appeal of a 2018 decision by a judge in Beijing granting the father visitation rights if he goes there, there must be adherence to a 2016 order by a judge of the Santa Clara Superior Court that the mother is to periodically bring the child here.
Presiding Justice Mary J. Greenwood authored the opinion. It affirms an August, 2018 order by Judge Stuart J. Scott denying a motion to register the May, 2018 judgment of the Beijing Xingcheng District People’s Court.
Under the judgment of the Chinese court, the mother, Jiaojiao Zhou, is to have “full and sole child custody” of the daughter, born in 2013, and the father, Sean Wang, may visit her on Saturdays and Sundays in the third week of every month. Being employed in California, monthly visits to China would be impractical.
The Santa Clara custody order requires Zhou to bring child to California, with frequency, for extended visits. Zhou agreed to the terms of the order.
Zhou also agreed to either register the California order in China or have a duplicate one made there.
Emergency Order
The order made at a time when Zhou was present with the child in California and wished to return with her to China. The Santa Clara court recited that the “child’s country of habitual residence is the People’s Republic of China (China), and that this court only assumes emergency child custody jurisdiction in this matter,” pursuant to Family Code §3424.
Rather than registering the California order in China or securing a copycat version there, Zhou, claiming the California order was procured through fraud, obtained the contrary order there.
Scott denied the motion to register the Chinese judgment on the ground that Zhou had failed to meet her commitment. That, Greenwood declared, was not a sound basis for the ruling.
But, she said, the ruling was correct because the 2018 Beijing order has no effect. That’s because it was stayed pending appeal, Greenwood explained.
Only Enforceable Order
She wrote:
“Because Wang established that the Chinese court, as a court with jurisdiction…, stayed the Chinese judgment, the trial court properly denied registration of that judgment….Pursuant to section 3424, subdivision (b), the custody orders issued by the trial court thus remained in effect until a valid order was obtained from the home state, which the evidence here shows was China….The August 2018 order, in addition to denying registration of the Chinese judgment, served to enforce the trial court’s prior orders until the litigation in China was resolved and the case was no longer stayed on appeal. In the absence of a valid order from the Chinese court (i.e., an order that had not been stayed), such enforcement was appropriate.”
The order required that a U.S. passport for the child be renewed.
The case is In re the Marriage of Wang and Zhou, 2021 S.O.S. 1526.
Copyright 2021, Metropolitan News Company