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Jurisdiction & Venue Issues Continued

If one party files in California and the other party files in a different state, under the UCCJEA, the judges of the two states must speak to each other and determine which state has proper jurisdiction. If the parties separated and moved apart, and have both lived in separate states for six months or more, then which state has jurisdiction will be determined by which petition was served first. This is sometimes called the “race to the courthouse,” but in reality, it is not who files a case first, but who manages to get the other side personally served with a petition first. This is because under due process considerations, it is the proper service of a petition which creates the court’s jurisdiction over the party served. In conflicting cases where one party has recently moved to a new state, but has lived there for less than six months, the state he or she used to live in is considered the residential state of both parties, and will be the state with jurisdiction. There are exceptions, of course. A party who moved out of state because of domestic violence or abandonment, can get temporary orders for protection and support. Even so, after the temporary orders are litigated and made by the judge in the new state, the case may be sent back to the residential state.

Venue, however, is different. The issue is “convenience” of the parties and witnesses. Venue is proper where either party resides and where it is convenient to litigate, for example, where witnesses reside and can be subpoenaed to come to court to testify, or where necessary records are kept, such as children’s or parties’ medical records, the children’s school records, etc. Thus, it is possible for a change of venue motion to move a case from one jurisdiction to another if doing so meets the convenience test.

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