In an unpublished opinion on April 16, 2021, the California Court of Appeal affirmed a Superior Court order permitting a mother to relocate her two minor children to Hungary. The order had a variety of “measures” in it that were intended to ensure the California order’s enforcement.
The Mother is Hungarian. The parties’ two children are dual nationals. In 2017, the parents separated, with the Father moving to Florida. In October 2019, the Mother, pro se, filed a request to move the children with her to Budapest for a job offer. The Father opposed the move and sought sole physical custody with a relocation of the children to Florida.
Caselaw in California permits a sole physical custodian the right to change the residence of the child, without a burden to establish that the move is “necessary.” The noncustodial parent then bears the burden to prove that the move would be detrimental to the child. Since this is an international relocation, there are some additional considerations, including the potential for problems enforcing the California court order in the foreign jurisdiction. The California court is required to order procedural safeguards to ensure the relocating parent complies with the order, and does not seek to invalidate or modify the order in the foreign court.
The trial court put in place a variety of measures it felt would meet the enforcement requirement for this international relocation, including a declaration that California would cede UCCJEA jurisdiction to Florida for custody (and child support, although, child support is actually dictated by separate jurisdictional rules under UIFSA), that the Father is required to register the California order with Florida, and that the Mother must designate an agent for service of process in Florida for matters related to custody and visitation. The court enjoined the Mother from filing a modification suit in any jurisdiction, besides Florida, and to register the Court’s custody and visitation order annually “under the Hague Convention on Civil Aspects of Child Abduction” in Hungary; to declare annually that Hungary acknowledges the children’s habitual residence is Florida, and to waive extradition to the USA if she is charged with kidnapping.
The unpublished appellate opinion was short in some key substance. For instance, it did not assess whether California could just “cede” jurisdiction to Florida. With both parents and the children leaving California, certainly it would lose exclusive, continuing jurisdiction under the UCCJEA (for custody), but that does not mean Florida could take up jurisdiction. The youngest child had never lived there. The oldest lived there for 3 months at birth. Jurisdiction over custody is subject matter jurisdiction. There is also no assessment as to whether Hungary, under its domestic law, has jurisdiction over the children. A California court cannot divest Hungary of jurisdiction if it has jurisdiction under its applicable law. There is no analysis as to whether Hungary would recognize, as a matter of comity, the injunction, would enforce the California order, or anything else related to Hungarian law. The author is also a bit confused as to what is meant by “registering the visitation order” annually under the Hague Abduction Convention in Hungary. The Hague Abduction Convention is not a treaty that has a registration provision like the UCCJEA.