WILLIAM M. HILTON Certified Family Law Specialist Box 269, Santa Clara, California 95052 (408) 246-8511 FAX (408) 246-8511 13 Jul 1990 Court of Appeal First District 350 McAllister Street, Room 4154 San Francisco, California 94102 re: Cully v Cully (Arnold) 1st Appellate District, Division Five No. A046724 San Francisco Superior Court No. 894341 Pursuant to California Rules of Court (CRC) Rule 978(a), it is respectfully requested that the decision of the Court filed on 11 Jul 1990 be certified for publication. This request is based upon the criteria set forth in CRC Rule 976(b)(2) [FN 1] and/or Rule 976(b)(3) [FN 2] as more specifically set forth below. Preliminarily it is to be noted that this decision reversed an order of the trial Court, indicating that, as a minimum, there is a misunderstanding of the application of the Uniform Child Custody Jurisdiction Act (UCCJA) regarding international cases. The Court, in its decision, stated as follows: [FN 3] Lastly, in certain cases, a court may assume jurisdiction under the UCCJA when no other state has jurisdiction under any of the preceding tests or another state has declined to exercise jurisdiction on the ground that California is the more appropriate forum and it is in the child's best interests that a California court assume jurisdiction. (Sec. 5152, (l)(d).) The trial court inferentially alluded to this section as a potential reason for exercising jurisdiction when it noted: "Neither any province of Canada nor any other state of the United States has exercised jurisdiction in this matter, . . ." However, it is clear by the very language of this section that its requirements are not met. As indicated previously, Canada would have home state jurisdiction and significant contact jurisdiction, and Canada has not declined exercise of its jurisdiction. Without either of these prerequisites, the court may not reach any equitable concerns about the "best interests of the child." This section of the decision discusses the application of Civil Code Section 5152(1)(d): (i) It appears that no other state would have jurisdiction under prerequisites substantially in accordance with paragraphs (a), (b), (c), or another state has declined to exercise jurisdiction on the ground that this state is the more appropriate forum to determine the custody of the child, and (ii) it is in the best interest of the child that this court assume jurisdiction. It is well understood that any one section of the UCCJA is to be interpreted in accord with the entire act, including Civil Code Section 5172 (With the Commissioner's Comments): The general policies of this title extend to the international area. The provisions of this title relating to the recognition and enforcement of custody decrees of other states apply to custody decrees and decrees involving legal institutions similar in nature to custody rendered by appropriate authorities of other nations if reasonable notice and opportunity to be heard were given to all affected persons. Commissioners' Comments Not all of the provisions of the Act lend themselves to direct application in international custody disputes; but the basic policies of avoiding jurisdictional conflict and multiple litigation are as strong if not stronger when children are moved back and forth from one country to another by feuding relatives. Compare Application of Lang, 9 App.Div.2d 401, 193 N.Y.S.2d 763 (1959) and Swindle v. Bradley, 240 Ark.903, 403 S.W.2d 63 (1966). The first sentence makes the general policies of the Act applicable to international cases. This means that the substance of section 1 (CC 5150) and the principles underlying provisions like sections 6 (CC5155), 7 (CC5156), 8 (CC5157), and 14(a) (CC 5163[1]), are to be followed when some of the persons involved are in a foreign country or a foreign custody proceeding is pending. The second sentence declares that custody decrees rendered in other nations by appropriate authorities (which may be judicial or administrative tribunals) are recognized and enforced in this country. The only prerequisite is that reasonable notice and opportunity to be heard was given to the persons affected. It is also to be understood that the foreign tribunal had jurisdiction under is own law rather than under section 3 (CC 5152) of this Act. Compare Restatement of the Law Second, Conflict of Laws, Proposed Official Draft, sections 10, 92, 98, and 109(2) (1967). Compare also Goodrich Conflict of Laws 390-93 (4th ed., Scoles, 1964). [FN 4] In the Court's decision it held that the trial Court's implied finding that there was no other forum available was improper as there was another forum available: Canada. This is clearly within the intent of the UCCJA, particularly Civil Code Section 5150: General Purpose of Title. The Court's ruling that Canada is to be treated as a "state" within the meaning of the UCCJA " . . . [R]esolves or creates an apparent conflict in the law . . . " as Civil Code Section 5151(10) defines "State" as any " . . . state, territory, or possession of the United State, the Commonwealth of Puerto Rico, and the District of Columbia." If this section is taken literally, as has been done in New York, [FN 5], New Jersey, [FN 6] and Ohio [FN 7], then Civil Code Section 5172 would have little or no effect when there was an issue involving California and a foreign nation. The limiting of the definition of "state" to that of Civil Code 5151(10) would defeat one of the principle purposes of the UCCJA as set forth in Civil Code Section 5150(b): "Promote cooperation with the courts of the states to the end that a custody decree is rendered in that state which can best decide the case in the interest of the child." With the recent implementation of The Convention on the Civil Aspects of International Child Abduction, done at the Hague on 25 Oct 1980 [FN 8] the concept that child custody matters are best resolved in the place with the most significant contacts was given a new impetus. This Court's finding that Canada is a "state" within the meaning of the UCCJA is in accord with this trend and " . . . [I]nvolves a legal issue of continuing public interest . . ." For the reasons given, its is respectfully requested that the court review the decision of 11 Jul 1990 and certify it for publication. Very Respectfully /S/ Wm. M. Hilton William M. Hilton, CFLS WMH:dah cc: Elizabeth Benford, Esq., Hon. Ina Levin Gyemant ------------------------------------------------------------------ FOOTNOTES ----------------------------------------------------------------- 1 Rule 976b(2): [R]esolves or creates an apparent conflict in the law; 2 Rule 976b(3): [I]nvolves a legal issue of continuing public interest; 3 Slip Opinion, Page 5, Lines 20 through 27; Page 6, Lines 01 through 09 4 "Reports of commissions which have proposed statues that are subsequently adopted are entitled to substantial weight in construing the statutes....This is particularly true where the statute proposed by the commission is adopted by the Legislature without any change whatsoever and where the commission's comment is brief, because in such a situation there is ordinarily strong reason to believe that the legislators' votes were based in large measure upon the explanation of the commission proposing the bill." Miller v Superior Court(1979) 22 Cal.3d 923, 943, 151 Cal.Rptr.6, 18 5 Massey v Massey (App.Div. 1982) 452 N.Y.S.2d 101, 102.)]; Klien v Klien (Sup. 1988) 533 N.Y.S.2d 211, 214; Lotte U v Leo U (Fam.Ct.1985) 491 N.Y.S.2d 581, 582 6 Schmidt v Schmidt (N.J.Super.A.D. 1988) 227 N.J. Super., 528 [548 A.2d 195, 198] 7 Minton v McManus(Ohio App.1983) 9 Ohio App.3d 165, 458 N.E.2d 1292, 1294 8 01 Jul 1988 is the effective date for the United States