A California appeals panel has agreed a parent can’t attempt to use a California state court to modify a child custody order originally finalized in Virginia.
Paul Fishbein and Michelle Segal divorced in 2017 in Virginia, and in that state’s court reached a custody agreement regarding their daughter, then age 5. According to court records, both Fishbein and Segal were foreign service workers in the U.S. State Department, and the initial agreement addressed their rotating employment in various cities by alternating which parent’s posting took priority and stipulating their plans to seek work in the same city until the child turned 18. Under the deal, Fishbein had priority for the 2017 assignment, Segal in 2019 and Fishbein again in 2021. The child, therefore, has lived in Tokyo, Singapore, Arlington, Virginia, and San Diego.
In the summer of 2021, Segal secured a temporary remote work agreement enabling her to move to San Diego where the child was living with Fisbhein. A few months later, Segal moved for reconsideration of the Virginia court’s most recent custody order. The court granted that motion in February 2022, finding Fishbein had no proof the State Department was allowing him to telework from Southern California.
The Virginia court determined the daughter would stay in San Diego to finish the school year, and in June would move back to Virginia, provided Segal was still working at a desk job in Washington, D.C.
A month later, Fishbein attempted to modify the order, but in California family court, rather than Virginia.
San Diego County Superior Court Judge Alana Robinson ruled her court lacked jurisdiction to hear the case under the Uniform Child Custody Jurisdiction and Enforcement Act, a law which limits the ability of one state to overrule a custody order in a different state.
Fishbein challenged Robinson's ruling before the California Fourth District Court of Appeal. Justice Judith McConnell wrote the panel’s opinion, filed March 22; Justices Joan Irion and Martin Buchanan concurred.
The appeals panel first denied Segal’s motion to dismiss on grounds of mootness. Segal said the panel had already denied “three writ petitions challenging orders related to the California court’s jurisdictional finding, and the Supreme Court denied review,” McConnell wrote, but sided with Fishbein’s position that previous denials don't "preclude the filing of a subsequent appeal.”
Justices likewise said the case remains viable despite the fact Segal and her daughter have returned to Virginia, because the panel could still grant effectual relief to Fishbein if the court determined Judge Robinson was wrong to cede jurisdiction to Virginia. McConnell said the panel would consider Segal’s latter motion to dismiss along with the merits of Fishbein’s appeal.
The crux of Fishbein’s argument is that, although both states have adopted the Uniform Child Custody Jurisdiction and Enforcement Act, California earned jurisdiction with both parents and the child living in the state. But Segal argued Virginia actively declined to cede jurisdiction and her stated intent to return to Virginia after a few months meant she remained a resident.
McConnell said “the UCCEJA takes a strict ‘first in time’ approach to jurisdiction” and requires a state court, once it learns custody proceedings have started in a different state observing the same law, to stay its own proceedings and consult with the originating state. Because Judge Robinson did so, and because Virginia affirmatively retained its jurisdiction, the law obligated the California court to dismiss its proceeding.
“Fishbein fails to explain how, under the UCCJEA, the California court could have disregarded the Virginia court’s decision to retain jurisdiction and instead proceeded to consider his request to modify the Virginia custody order,” McConnell wrote. “To the extent Fishbein contends the Virginia court’s jurisdictional determination is erroneous, his argument is with the Virginia court, not the California court.”
The panel sided with Segal’s position she only intended to be a temporary California resident, finding the Virginia custody order corroborated her stance by stipulating the parents “shall seek to reside in the same city” as did Segal’s showing of her employer granting permission to work remotely based on child custody.
The panel affirmed Judge Robinson’s ruling and awarded litigation costs to Segal, who represented herself.
Fishbein has been represented by Bickford Blado & Botros.