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Brewer v. Carter (2013) , Cal.App.4th
      Browse: 1778      Date: 09-24-2013

Recently there was a case in the California court about a father appeals for an order finding Illinois to be a more convenient forum to resolve certain child custody issues. Now let us look at the factors to determine which State court has the jurisdiction when it comes to the couples filing child custody suits in two different states.


FACTS AND PROCEDURAL HISTORY
Appellant Barry Vincent Brewer, Jr., and Kymar Carter have a son, born on April 21, 2010, who shares Brewer's name. They lived together as a family in Los Angeles. In June 2011, Carter took their 14-month-old son to Chicago, Illinois, to visit Carter's family. When she did not return, Brewer filed a petition in pro. per. on August 8, 2011, to establish a parental relationship, seeking joint custody and visitation.

 

On December 27, 2011, having resided in Illinois for six months, Carter filed a paternity action in Illinois. The California court found that California was not the child's home state when Brewer filed his petition, because the child had not lived in California for six continuous months immediately prior to the filing date. The court also found that Illinois was the child's home state when Carter filed her action in Illinois, and therefore, the custody determination should be made in Illinois. Brewer filed a timely notice of appeal from the order

 

DISCUSSION

when Brewer filed his custody petition in California, California clearly had jurisdiction over custody proceedings pursuant to section 3402, subdivision (a). California was the child's home state within six months of the commencement of the proceeding and although the child was absent from the state, Brewer continued to live in California. At the time of the filing, Brewer's son had been out of California for no more than 72 days. [under the former provisions of the UCCJA, California was the home state of a child absent from the state for 77 days].)The conclusion would be the same under Illinois law.


In this case, neither parent filed a motion for a determination that California was an inconvenient forum. The trial court raised the inconvenient forum issue on its own motion, based on evidence that a custody case was pending between the same parties in another jurisdiction. Under the circumstances, the court should have provided the parties with an opportunity to submit evidence relevant to the court's determination of whether California was a convenient forum or Illinois was an appropriate forum. This was not done, and therefore, the order staying the proceedings was in error.

In addition, to determine whether California is an inconvenient forum, the trial court must consider and weigh all of the factors enumerated in section 3427, subdivision (b), relevant to the case before it. (§ 3427, subd.(b).) The court has broad discretion with respect to weighing the applicable factors and determining the appropriate weight to accord to each. However, the court cannot ignore any relevant circumstance enumerated in section 3427, subdivision (b); rather, the trial judge must recognize and apply each applicable statutory factor. Under the doctrine of "implied findings," if the record is silent, we must presume the trial court fully discharged its duty to consider all of the relevant statutory factors and made all of the factual findings necessary to support its decision for which there is substantial evidence.

In this case, the only express finding made by the trial court was the court's assumption that medical records and similar evidence are probably located in Illinois. However, there is no evidence to support that any such records exist or are necessary to resolve any issue in the pending litigation. Without the parties having had an opportunity to submit evidence on the inconvenient forum issue, and lacking any evidence in the record that California is an inconvenient forum or Illinois is a more convenient forum to resolve the parties' custody issues, we decline to presume the trial court made the factual {Slip Opn. Page 10} findings necessary under section 3427.(Cf. Leadford v. Leadford (1992) 6 Cal.App.4th 571, 575 [declining to imply findings as to out-of-state proceeding based on evidence presented by demurrer rather than motion for stay].) The order in this case must be reversed and the matter remanded for further proceedings.

DISPOSITION
the order is reversed. Appellant Barry Vincent Brewer, Jr., is awarded his costs on appeal.

Source: FindLaw