The issue is child custody and support orders. Imagine that Mother, Father and Child are all in one state (make it California) and Mother and Father get divorced therein. So there's a California custody and support order at the end of all this. Mother has custody X% of the time, Father pays $Y support for Child, etc.
Of course, those things are modifiable over time, if either side wants to so request. And here's the rule with respect to jurisdiction -- overly simplified, but nonetheless good enough for our purposes -- that pretty much every single state has enacted: if any of the three (Mother, Father or Child) are still in California, then the California court has (1) exclusive, and (2) continuing jurisdiction over its orders.
So if either Mother or Father wants to try to modify the California order, as long as any of the relevant people are still in California, absent a stipulation by everyone to file the motion to modify elsewhere, the motion must be filed in California. Even if Child now resides in Texas, even if Mother now lives in Arizona, etc. So long as one relevant person is still in California, the California court is the only one with jurisdiction to modify its order.
So take that as a given.
Here's the question:
What's the right rule for when everyone has left California? For example, assume Child now resides in Texas, Mother's in Arizona, and Father's in Nevada. One of the parties (say, Father) wants to move to change his child support amount because he's lost his job. Where must/can Father file this motion?
Here are the choices:
(A) California (where the Order was entered)
(B) Texas (where Child resides)
(C) Arizona (where Mother resides)
(D) Nevada (where Father resides)
(E) (A) or (B), at Father's option.
(F) (A) or (C), at Father's option.
(G) (A) or (D), at Father's option.
(H) (A), (B) or (C), at Father's option.
(I) (A), (B) or (D), at Father's option.
(J) (A), (B), (C) or (D), at Father's option.
(K) (B) or (C), at Father's option.
(L) (B) or (D), at Father's option.
etc. etc etc.
You're making policy for California. Assume there's no statute on point, and that this is a matter for common law development. Or that the statute's hopelessly unclear, and you're trying to figure out what the right rule should be in order to evaluate the strength of the various positions.
What should the rule be, reasoning from first principles?
My sense is that proceduralists (like me) would tend to take as a default view that since the action was first-filed in California and since we're talking about a California order, that California probably has at least continuing -- and perhaps exclusive -- jurisdiction to modify it. Similarly, family law people might be concerned that if you allow Father or Mother or Parent With Child to leave California and thereby divest the tribunal of jurisdiction (assuming the other parent has already left for another state; say, for work or whatever), you might give people an incentive to forum shop in an attempt to get away from the initial tribunal and modify the order. And/or that you might be faced with a problem of one of the two parents having a "race to the courthouse" (if jurisdiction wasn't exclusive somewhere) in an attempt to make sure that any motion to modify would heard be in their state rather than the state of the other parent; e.g., to make it maximally easy for you and burdensome for the other side.
Those are the arguments for California having at least concurrent jurisdiction to modify its orders.
On the other side of the equation, however, is the stark reality that no one currently lives in that state. So why should it care? Hence why should it have jurisdiction?
Today's opinion by Justice McDonald discusses at great length the underlying statute. I agree with him that the relevant statute doesn't create "continuing and exclusive" jurisdiction in California. Even though Minnesota disagrees, I think that the Court of Appeal's right with respect to the statutory interpretation issue on this point. So I agree that the statute doesn't answer the question. That's what literally 95% of Justice McDonald's opinion is about. So that part I understand.
But the opinion reads as if the Court of Appeal thinks that the fact that California doesn't have statutory "exclusive and continuing" jurisdiction answers the question as to whether California retains jurisdiction to modify its own order. But that's not, in fact, the case. I agree that the statute doesn't grant the state "exclusive and continuing" jurisdiction.
But what about simply continuing (but not exclusive) jurisdiction? That's the dispositive issue in the case, which is simply about whether the California court here had jurisdiction to modify its order. So it seems to me we're getting way too bogged down in whether California has "exclusive and continuing" jurisdiction despite the fact that we only care about the latter. (True, we've got to answer the former question, since if California has both exclusive and continuing jurisdiction, then obviously it has the latter. But that's nonetheless only half -- if that -- of the equation.)
It's only in the last couple of pages of the opinion that Justice McDonald talks about whether California has (merely) "continuing" jurisdiction. And, to be honest, I don't understand what he's saying there. I agree with him that state courts generally have jurisdiction over child custody and support proceedings. And that as a general matter, once a court enters an order, it has continuing jurisdiction to modify it. I get all that.
But if all that's true, then why does the Court of Appeal hold that those general rules don't apply here? It seems to me like Justice McDonald is saying something about that -- since he has to in order to hold (as he does) that California doesn't have continuing jurisdiction -- but I just don't understand it.
Maybe that's because I'm not a family law practitioner. Maybe someone in the field would look at this and say "Oh, dude, Justice McDonald is obviously right. Shaun: You simply don't understand the XY Doctrine, or the YZ Statute." That's entirely possible.
But I'd have hoped that, if that's the case, that Justice McDonald's opinion could have made that clear to me. Since I've tried to read the relevant opinion a couple of times and still can't understand it on this point.
More generally, I'm just not sure what the right rule should be. Assuming that we're doing a common law thing here (and it seems like we are), I don't know what the law should be. I can see an argument for continuing jurisdiction in California. I can see an argument against it. None of these policy claims are fleshed out in the opinion. So I'm left somewhat at sea as to how the case should be decided. Or whether the law -- if it's indeed clear -- makes the right choice.
My initial reaction when I read the opinion was that maybe California should possess continuing jurisdiction (1) pursuant to the usual rules, and (2) to stop forum-shopping/races to the courthouse. But when I raised this issue to a group of four other law professors at lunch today -- that's one of the advantages of being an idle academic when classes have just ended for the semester -- they seemed to be of the (admittedly weak) opinion that the "best" rule would be one that reposed exclusive jurisdiction in whatever state the Child resides. So not California.
But every one of them knows as little about family law as I do. Which is to say: Virtually nothing.
So maybe the Court of Appeal's holding here is right. Or maybe it's wrong. Or maybe it's right on the law but wrong on policy. Or vice-versa.
I'm just not sure.
