Filed 6/20/22 B.K. v. K.C. CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

I. INTRODUCTION

This is an appeal from an order transferring a case involving child custody to another jurisdiction. On August 25, 2020, appellant B.K. filed a petition to determine a parental relationship with a two-year-old child, who appellant alleged was his biological child. Appellant indicated in a supporting declaration that, although the child had resided in New Mexico for various periods of time, the child most recently lived in California with appellant and the child’s mother, respondent K.C. In conjunction with the petition to determinate a parental relationship, appellant obtained emergency orders from the trial court providing for, among other things, joint custody of the child with respondent.

In early September 2020, respondent filed a petition for a domestic abuse protection order in a Navajo Nation court in New Mexico, seeking protection from appellant. On September 8, 2020, the Navajo Nation court issued a temporary protection order and granted respondent temporary custody of the child.

In November 2020, respondent filed a motion in California to quash and to dismiss appellant’s California case. Respondent contended that the child resided in and spent the vast majority of time in New Mexico and that pursuant to the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) (Fam. Code, § 3400 et seq.),[1] the case should be transferred to the Navajo Nation court where there was on ongoing case. The trial court in California concluded that California was not the child’s home state under the UCCJEA and ordered the case transferred to the Navajo Nation court.

On appeal, appellant contends that the trial court erred in granting respondent’s motion and transferring the case to the Navajo Nation court. For reasons that we will explain, we will affirm the order.

II. FACTUAL AND PROCEDURAL BACKGROUND

A. Appellant’s California Petition to Determine a Parental Relationship and Request for Emergency Orders

On August 25, 2020, appellant filed a petition in California to determine a parental relationship with the child, who was two years old. In a supporting declaration, appellant indicated that the child alternately resided in New Mexico and California as follows: (1) in New Mexico with appellant and respondent from birth in July 2018, to October 2018; (2) in Morgan Hill, California with appellant and respondent from October 2018, to March 2019; (3) in New Mexico with respondent from March 2019, to September 2019; and (4) in Morgan Hill, California with appellant and respondent from September 2019, “to present.” Appellant indicated that a “domestic violence restraining/protective order[]” from Santa Clara County had been in effect until August 24, 2020.

In connection with the petition to determine a parental relationship, appellant obtained emergency (ex parte) orders on August 25, 2020, requiring the child to be returned to Santa Clara County immediately, restricting respondent from removing the child from Santa Clara County, and awarding joint legal custody of the child.[2] Appellant apparently served respondent with the emergency orders on August 28, 2020.

B. Navajo Nation Court Proceeding in New Mexico

On September 4, 2020, respondent filed in a Navajo Nation court in New Mexico a petition for a domestic abuse protection order. The petition was apparently based on a dispute between the parties that occurred on August 17, 2020, in California. On September 8, 2020, the Navajo Nation court issued a temporary protection order (ex parte) and granted respondent temporary custody of the child.

C. Respondent’s Motion to Quash and to Dismiss the California Case

In November 2020, respondent filed a motion to quash and to dismiss the case.[3] In a supporting memorandum of points and authorities, respondent requested that appellant’s case be quashed or dismissed and transferred to the Navajo Nation court on the grounds that the trial court did not have jurisdiction over respondent and the child, and another court had “already . . . taken up this subject matter.” Respondent contended that she and the child were of “Navajo Indian blood” and that both were members of the Navajo Nation. Respondent also argued that she and the child were residents of the Navajo Nation and lived on “Navajo reservation land.” Respondent contended that although she and the child visited California, they never stayed longer than a few weeks at a time and never intended to move to California. Respondent further argued that appellant had been arrested for domestic violence against her in California, which resulted in a protective order being entered by “Judge Scott, with the help of the Milpitas police,” and being served on or about August 18, 2020. Respondent contended that she thereafter returned home to New Mexico and obtained a protective order for herself and the child from the Navajo Nation court. [4] According to respondent, appellant had appeared “with counsel on that matter in the Navajo Nation.” Respondent contended, among other arguments, that in accordance with the UCCJEA, the California case should be “dismissed and/or transferred and merged to the Navajo courts,” where there was an “ongoing case.” Respondent contended that appellant had “misled” the trial court by failing to inform the court that the child resided in and spent the vast majority of time in New Mexico.

In a declaration dated November 12, 2020, in support of respondent’s motion to quash and dismiss, respondent’s mother stated that she was the “biological mother of [respondent].” According to respondent’s mother, respondent “considers and has always intended [New Mexico] to be her home state.” Respondent’s mother stated that respondent “never intended to actually reside nor move to [California],” and instead “her intent was always to visits with [appellant].” According to respondent’s mother, respondent had a “residence” in New Mexico and “membership in the Navajo Nation,” but “[n]o such ties” to California. Respondent’s mother provided the following timeline of respondent’s and the child’s time at “home” in New Mexico and “visits” to California:

(1) in New Mexico from child’s birth in July 2018, to October 20, 2018;

(2) visit to California from October 21, 2018, to November 29, 2018;

(3) at home in New Mexico from November 30, 2018, to February 15, 2019;

(4) visit to California from February 16, 2019, to March 28, 2019;

(5) at home in New Mexico from March 29, 2019, to September 26, 2019;

(6) visit to California from September 27, 2019, to December 29, 2019;

(7) at home in New Mexico from December 30, 2019, to January 7, 2020;

(8) visit to California from January 8, 2020, to March 16, 2020;

(9) at home in New Mexico from March 17, 2020, to May 26, 2020;

(10) visit to California from May 27, 2020, to July 26, 2020;

(11) at home in New Mexico from July 27, 2020 to July 30, 2020;

(12) visit to California from July 31, 2020, to August 18, 2020; and

(13) at home in New Mexico on August 19, 2020, “after obtaining EPRO,” and remaining in New Mexico to the present.

D. Appellant’s Opposition to Motion to Quash and to Dismiss

Appellant opposed the motion to quash and dismiss. In a declaration, appellant recited the following timeline regarding where the child lived. The child was born in New Mexico in July 2018, but “moved to” and lived in California from October 2018, until March 2019. The child lived in New Mexico from March 2019, to September 2019. Appellant stated that in September 2019, he signed a rental agreement for an apartment with respondent, and that they all lived there together until August 2020, when she “unilaterally left” with the child “against a California [c]ourt [o]rder.” According to appellant, the trio lived at the apartment from September 23, 2019, until August 17, 2020, and “considered it home.” Appellant stated that during the COVID-19 pandemic, respondent and the child went to New Mexico at times, “but these were only visits, and they were always coming home to our place in Morgan Hill at the end of the visits.” Appellant stated that on August 25, 2020, he obtained a court order for respondent to return the child to California, but respondent did not comply. According to appellant, respondent was thereafter arrested and charged in connection with “fleeing California” with the child.

In a memorandum of points and authorities in opposition to the motion to quash and/or dismiss, appellant indicated he did not believe that the child had ever “lived on the Navajo Nation.” He argued that under the UCCJEA, California was the child’s “home state” as the child had lived in California for more than six months immediately prior to appellant filing the petition to determine a parental relationship. Appellant contended that respondent had notice of the orders requiring her to return the child to Santa Clara County but that she nevertheless sought and obtained “her own [o]rder from the Navajo Nation Court.”

Appellant contended that under the UCCJEA, only one court may have jurisdiction over custody and visitation issues. He argued that California was the child’s “home state” for purposes of the UCCJEA, because the child had resided in California for more than six months preceding the filing of appellant’s petition. Appellant attached to his memorandum a rental agreement that he contended had been signed by respondent for an apartment in Santa Clara County, where the trio had lived. He argued that respondent and the child’s out-of-state visits were only temporary, and that text messages exchanged between the parties, which appellant attached to the memorandum, showed that respondent made references to visiting out of state and to returning home to Santa Clara County where the trio resided. Upon the trial court initially finding jurisdiction under the UCCJEA, appellant argued that the court continued to have exclusive jurisdiction over the matter.

E. California Court’s January 13, 2021 Order Granting Respondent’s Motion and Transferring the Case to the Navajo Nation Court

A hearing was held on November 30, 2020, regarding respondent’s motion to quash and to dismiss the case.[5] On January 13, 2021, the trial court filed a written order granting the motion to quash and to transfer the case to the Navajo Nation court. In the order, the court explained that a proceeding was pending in the Navajo Nation court and that the custody of the parties’ minor child was at issue. The court indicated that it had attempted to communicate with the Navajo Nation court pursuant to section 3424, subdivision (d), but there had been no response. The court stated that the parties were governed by the UCCJEA regarding subject matter jurisdiction. In this regard, the court stated as follows: “After considering the evidence presented at the hearing on this motion, the court concludes that California is not the child’s home state (Family Code section 3402(g)) and there are no substantial forum state contacts in California. Therefore, this action now pending in Santa Clara County shall be transferred to the Navajo Nation Court.”

On March 11, 2021, appellant filed a notice of appeal.

III. DISCUSSION

Appellant contends that there was not substantial evidence to support the trial court’s finding that California was not the child’s home state at the time appellant filed his August 25, 2020 petition to determine a parental relationship. He also argues that the trial court had “exclusive, continuing jurisdiction” over this matter pursuant to section 3422. Appellant further contends that section 3424, regarding emergency jurisdiction, did not require the court to “decline permanent jurisdiction” and did not cause the “Navajo Nation Court’s September 8, 2020 temporary emergency jurisdiction [to] have ripened into permanent jurisdiction.” He also argues that the Navajo Nation court’s failure to respond to the trial court’s inquiry amounted to a declination of jurisdiction by the Navajo Nation court.

Before analyzing the substance of appellant’s contentions, we first set forth general legal principles regarding the UCCJEA, home state jurisdiction, and the standard of review.

1. Uniform Child Custody Jurisdiction and Enforcement Act

“The UCCJEA is the exclusive method of determining subject matter jurisdiction in child custody cases. [Citations.] Subject matter jurisdiction over a child custody dispute either exists or does not exist at the time the petition is filed, and jurisdiction under the UCCJEA may not be conferred by mere presence of the parties or by stipulation, consent, waiver, or estoppel. [Citation.] [¶] The purposes of the UCCJEA are ‘to avoid jurisdictional competition between states or countries, promote interstate cooperation, avoid relitigation of another state’s or country’s custody decisions and facilitate enforcement of another state’s or country’s custody decrees. [Citation.]’ [Citation.]” (Schneer v. Llaurado (2015) 242 Cal.App.4th 1276, 1287 (Schneer).)

2. Home State Jurisdiction

“ ‘Pursuant to the UCCJEA, California courts have jurisdiction over child custody determinations only if the child’s home state is California, or the child’s home state does not have jurisdiction or declined jurisdiction in favor of California. [Citation.]’ [Citation.] The UCCJEA prioritizes home state jurisdiction over other bases of jurisdiction. [Citations.]” (Schneer, supra, 242 Cal.App.4th at pp. 1287-1288, fn. omitted.)

Section 3402 defines a child’s home state as “the state in which a child lived with a parent or a person acting as a parent for at least six consecutive months immediately before the commencement of a child custody proceeding. . . . A period of temporary absence of any of the mentioned persons is part of the period.” (Id., subd. (g).) “The term ‘lived’ for the purpose of conferring home state jurisdiction is properly interpreted to mean physical presence. . . . [¶] ‘Temporary absence,’ on the other hand, . . . requires consideration of the parents’ intentions, as well as other factors relating to the circumstances of the child’s or family’s departure from the state where they had been residing. [Citations.]” (In re Aiden L. (2017) 16 Cal.App.5th 508, 518 (Aiden L.).)

Relevant to this appeal, in determining jurisdiction based on a child’s home state, section 3421 provides that a California court “has jurisdiction to make an initial child custody determination” if “[t]his state is the home state of the child on the date of the commencement of the proceeding, or was the home state of the child within six months before the commencement of the proceeding and the child is absent from this state but a parent or person acting as a parent continues to live in this state.” (Id., subdivision(a)(1).)

3. The Standard of Review

When, as in this case, “the facts are contested, a trial court’s jurisdictional finding under the UCCJEA is reviewed under the deferential substantial evidence standard. [Citations.] When conducting a substantial evidence review, we must review the entire record in the light most favorable to the prevailing party, resolve all conflicts in the evidence in favor of the ruling or judgment being reviewed, and indulge all reasonable inferences in support of the family court’s findings. [Citation.] The family court’s resolution of conflicts in the evidence and credibility assessments are binding on this court. [Citation.]” (Schneer, supra, 242 Cal.App.4th at pp. 1286-1287, fn. omitted; accord, A.M. v. Superior Court (2021) 63 Cal.App.5th 343, 351; Aiden L., supra, 16 Cal.App.5th at p. 520.)

4. Analysis

1. Home state jurisdiction

Appellant contends that there was not substantial evidence to support the trial court’s finding that California was not the child’s home state at the time appellant filed his August 25, 2020 petition to determine a parental relationship. In making this argument, appellant contends that there is “no dispute,” that (1) between September 2019, and August 2020, the child and respondent were in California for 239 days and in New Mexico for only 87 days; (2) in September 2019, respondent signed a residential lease agreement for their residence in California; and (3) respondent sent appellant text messages “referring to her and [the child’s] ‘home’ as being in California and suggesting that their extended visit in New Mexico in the spring and early summer of 2020 was due to the COVID-19 pandemic.” Appellant contends that the facts in his case are similar to Schneer, supra, 242 Cal.App.4th 1276, in which the appellate court determined that California was the child’s home state.

We determine that appellant fails to demonstrate error by the trial court in finding that California was not the child’s home state. Appellant must “ ‘demonstrate that there is no substantial evidence to support the challenged findings.’ . . . [Citations.]” (Foreman & Clark Corp. v. Fallon (1971) 3 Cal.3d 875, 881.) As we stated above, we “review the entire record in the light most favorable to the prevailing party, resolve all conflicts in the evidence in favor of the ruling or judgment being reviewed, and indulge all reasonable inferences in support of the family court’s findings. [Citation.] The family court’s resolution of conflicts in the evidence and credibility assessments are binding on this court. [Citation.]” (Schneer, supra, 242 Cal.App.4th at pp. 1286-1287.)

In this case, the child was two years old at the time appellant filed his August 25, 2020 petition to determine a parental relationship with the child. Although appellant declared that he, respondent, and the child lived together in California from September 2019 to August 2020, there was conflicting evidence on this point, and the trial court was not required to credit appellant’s version of where respondent and the child lived.

On this point, the record reflects that the child always lived wherever respondent was located. According to the declaration of respondent’s mother, respondent “consider[ed] and ha[d] always intended [New Mexico] to be her home state,” she “never intended” to reside or move to California, and instead “her intent was always to visits with [appellant].” Respondent has a “residence” in New Mexico and “membership in the Navajo Nation,” but “[n]o such ties” to California. Consistent with these statements, respondent and the child lived in New Mexico for longer periods of time than in California according to the timeline set forth in respondent’s mother’s declaration. For example, during the child’s first two years of life, the child lived the longest continuous period in New Mexico, specifically nearly six months between March 29, 2019, and September 26, 2019. Further, in the child’s two years of life prior to appellant filing the petition to determine a parental relationship, the child spent more time in total in New Mexico than in California. Specifically, the child lived in New Mexico for 429 days, and was in California for 318 days. The record also reflected a factual dispute regarding whether any of the time the child spent in one location was merely a “temporary absence” from, and “part of the period” the child was living in, the other location. (See § 3402, subd. (g) [a child’s “period of temporary absence” from the state is still considered “part of the period” that the child lived in the state].)

Appellant contends that the child and respondent spent more time in California than in New Mexico between September 2019 and August 2020. He argues that the time spent in New Mexico “in the spring and early summer of 2020” was an extended “visit” that “was due to the COVID-19 pandemic.” According to respondent’s mother’s declaration, however, beginning on March 17, 2020, the child and respondent were in New Mexico for 70 days, then in California for 60 days, then in New Mexico for 3 days, then in California for 18 days, then back to New Mexico where they remained, including at the time appellant filed his petition to determine a parental relationship six days later. The trial court could have reasonably inferred that, notwithstanding appellant’s argument to the contrary, the COVID-19 pandemic was not the reason respondent and the child spent periods of time in the spring and summer of 2020 living in New Mexico, and that instead, the pair continued their usual schedule of living in New Mexico and making regular visits to see appellant in California.

We are also not persuaded that the September 2019 rental agreement that appellant and respondent signed conclusively demonstrates that respondent and the child intended to and did make California their home from that point forward. First, the rental agreement was not for an extended period, but was rather for only a month-to-month tenancy. Second, the rental agreement required that “all occupants 18 years of age or older . . . complete a lease rental application.” Given that respondent’s visits to California often extended for one month or longer, the trial court could have reasonably concluded that appellant and respondent included respondent’s name on the rental agreement to ensure that respondent’s presence at the apartment during her visits to California would not constitute a violation of a month-to-month rental agreement signed by appellant alone.

Likewise, we are not persuaded that the pair’s text messages on certain dates between March 18 and June 14, 2020, which refer to the “virus” and contain references to “home” in California, conclusively demonstrates that respondent considered California home for her and the child between September 2019 and August 2020 as asserted by appellant. For example, in a May 4, 2020 text, respondent stated to appellant, “I’m so tired of this virus.” In another text that same day, respondent texted to appellant, “We do have to go back because we pay for our own place and we are a family and our home is in California.” However, it is not clear from these or other text messages that the pandemic was the reason for respondent’s and the child’s 70-day stay in New Mexico during this time period. As reflected in the chronology set forth in respondent’s mother’s declaration, before, during, and after the period of time reflected in the text messages, respondent and the child regularly traveled back and forth between California and New Mexico notwithstanding the signing of the rental agreement or the COVID-19 pandemic. Indeed, after these May 4, 2020 text messages, respondent and the child traveled to California on May 27, 2020, where they stayed for only 60 days in California – which was 10 days less than their prior stay in New Mexico – before they again traveled back to New Mexico.

In view of the conflicts in the evidence regarding (1) whether the child’s home state was New Mexico or California and (2) the dates that either state was the child’s home state, and given that we must “review the entire record in the light most favorable to the prevailing party, resolve all conflicts in the evidence in favor of the ruling or judgment being reviewed, and indulge all reasonable inferences in support of the family court’s findings” (Schneer, supra, 242 Cal.App.4th at pp. 1286-1287), we determine that appellant fails to meet his burden of demonstrating error in the trial court’s finding that California was not the child’s home state.

Further, in view of the conflicts in the evidence, we are not persuaded by appellant’s reliance on Schneer, in which the appellate court concluded that the trial court erred in determining that California was not the child’s home state. (Schneer, supra, 242 Cal.App.4th at p. 1279.) In Schneer, the mother admitted that she and the child stayed in California from August 2012 until early March 2013, and that she also registered her son, who was from another relationship, in a local school after she arrived in California. (Id. at p. 1280.) She testified that during the “extended visit” to California, she returned to Florida monthly for doctor’s appointments and usually took the child with her. (Ibid.) The mother and child returned to Florida in March 2013, and remained there through the time of the filing of a custody petition by the father in June 2013. (Id. at pp. 1279, 1280, 1281.) The family court found that the child had resided in California until March 2013, but that home state jurisdiction could only be satisfied if the child resided in California for six consecutive months immediately before the father filed his June 2013 petition. (Id. at p. 1282.)

The appellate court concluded that California had home state jurisdiction. (Schneer, supra, 242 Cal.App.4th at p. 1289.) The court explained that “sections 3402 and 3421 provide two bases for home state jurisdiction.” (Id. at p. 1288.) “First, a California court has jurisdiction to make an initial determination of child custody if California is the child’s home state on the date the proceeding is commenced (§ 3421, subd. (a)(1)), meaning” the child lived with a parent in California “ ‘at least six consecutive months immediately before the commencement of a child custody proceeding’ (§ 3402, subd. (g)).” (Ibid.) “Second, a California court has jurisdiction if California was the child’s ‘home state . . . within six months before the commencement of the proceeding and the child is absent from this state but a parent or person acting as a parent continues to live in this state.’ (§ 3421, subd. (a)(1).)” (Id. at pp. 1288-1289.)

Turning to the facts before it, the appellate court determined that the case fell within the second test. The court explained that “[s]ubstantial evidence support[ed] the family court’s finding that, notwithstanding mother’s frequent trips to Florida with the child,^[[6]] the child continuously resided in California from at least August 2012 until March 2013. In other words, the child resided in California for at least six continuous months and mother moved her to Florida less than six months before father filed his petition in June 2013. The child’s absence from California for almost four months before father filed his petition is not determinative because father continued to reside in California. Under these facts, the family court erred by finding California lacked jurisdiction under section 3421, subdivision (a)(1).” (Schneer, supra, 242 Cal.App.4th at p. 1289, italics added.)

In this case, regarding the first test for home state jurisdiction, as we have explained there is conflicting evidence regarding whether the child lived in California for “at least six consecutive months immediately before” appellant’s filing of the August 25, 2020 petition to determine a parental relationship. (§ 3402, subd. (g); see § 3421, subd. (a)(1).) Likewise, under the second test for home state jurisdiction, there is a conflict in the evidence regarding whether “California was the child’s ‘home state . . . within six months before the commencement of the proceeding and the child [was] absent from this state but a parent or person acting as a parent continue[d] to live in this state.’ (§ 3421, subd. (a)(1).)” (Schneer, supra, 242 Cal.App.4th at pp. 1288-1289.) In Schneer, this test was met because the evidence established, based on the mother’s own testimony, that “the child resided in California for at least six continuous months” and that the mother and child moved out of California “less than six months before father filed his petition.” (Schneer, supra, at p. 1289; see id. at pp. 1279, 1280, 1281.) In this case, however, as we have indicated above, appellant has not identified undisputed evidence establishing that the child resided in California for six continuous months at any point prior to the filing of his August 25, 2020 petition to determine a parental relationship. Indeed, the evidence on these points is in conflict and, as we have explained, we must accept the trial court’s resolution of the evidentiary conflict and we cannot reweigh the evidence. (See id. at pp. 1286-1287.)

2. Exclusive, continuing jurisdiction

Appellant contends that the trial court had “exclusive, continuing jurisdiction” over this matter pursuant to section 3422. Section 3422, subdivision (a) generally provides that a court “that has made a child custody determination consistent with Section 3421 . . . has exclusive, continuing jurisdiction over the determination until either of” two statutorily specified circumstances occurs.[7] In this case, we have concluded that substantial evidence supports the trial court’s determination that California was not the child’s home state under the jurisdiction statute, section 3421, and that therefore the court did not error in ordering the case transferred to the Navajo Nation court. In light of this proper ruling by the trial court, there was no “child custody determination consistent with Section 3421” upon which the trial court could exercise “exclusive, continuing jurisdiction” under section 3422, subdivision (a).

3. Temporary emergency jurisdiction

Appellant observes that the trial court’s order cited to section 3424, subdivision (d) and described the court’s unsuccessful efforts to communicate with the Navajo Nation court. Section 3424 provides that a California court has “temporary emergency jurisdiction if the child is present in this state and . . . it is necessary in an emergency to protect the child because the child, . . . or parent of the child, is subjected to, or threatened with, mistreatment or abuse.” (Id., subd. (a).) Subdivision (d) of section 3424 generally provides that a California court “shall immediately communicate” with the court of another state when one court has initial jurisdiction and the other court is considering or has exercised temporary emergency jurisdiction.[8]

On appeal, appellant contends that section 3424 did not “direct[] or mandate[]” that the trial court “decline permanent jurisdiction” and did not cause the “Navajo Nation [c]ourt’s September 8, 2020 temporary emergency jurisdiction [to] have ripened into permanent jurisdiction.” He also argues that the Navajo Nation court’s failure to respond to the trial court’s inquiry amounted to a declination of jurisdiction by the Navajo Nation court.

In making these arguments, appellant acknowledges that “it is unclear how, if at all,” section 3424 and the Navajo Nation court’s failure to respond “impacted the [t]rial [c]ourt’s ruling.” Given that appellant cannot establish that either section 3424 or the Navajo Nation court’s failure to respond “impacted” the trial court’s ruling, we decline to consider appellant’s hypothetical arguments in this regard.

We also reject appellant’s contention that the Navajo Nation court’s failure to respond to the trial court’s inquiry amounted to a declination of jurisdiction by the Navajo Nation court. The record reflects that, prior to the trial court’s inquiry, the Navajo Nation court had already issued an order pertaining to child custody. The trial court observed in its January 13, 2021 order that the Navajo Nation court proceeding was still “pending.” Thus, the record reflects that the Navajo Nation court intended to and did exercise jurisdiction with respect to custody of the child. This case is therefore distinguishable from the cases cited by appellant in which another jurisdiction was deemed to have declined jurisdiction. In those cases, no child custody proceeding was pending in the other jurisdiction at the time the other jurisdiction failed to respond to the California court’s inquiry. (See In re M.M. (2015) 240 Cal.App.4th 703, 716-717, 718 [where no Japanese child custody proceeding was pending and Japan refused to discuss jurisdiction with California court, court deemed Japan to have declined jurisdiction]; In re A.C. (2017) 13 Cal.App.5th 661, 666, fn. 2, 675 [where no known Mexican child custody order existed and Mexico failed to respond to California court’s inquiries, court deemed Mexico to have declined jurisdiction].)

In sum, appellant fails to demonstrate error in the trial court’s order granting respondent’s motion to quash and transferring the case to the Navajo Nation court.

IV. DISPOSITION

The January 13, 2021 order granting respondent K.C.’s motion to quash and transferring the case to the Navajo Nation court is affirmed.

Bamattre-Manoukian, ACTING P.J.

WE CONCUR:

DANNER, J.

WILSON, J.

B.K. v. K.C.

H048973

[1] All further statutory references are to the Family Code unless otherwise indicated.

[2] Regarding physical custody, the emergency orders in some portions indicated that appellant was to have temporary physical custody of the child with visitation by respondent, but elsewhere the orders indicated that appellant and respondent were to have joint physical custody.

[3] It appears from the record on appeal that by early November 2020, kidnapping and child abduction charges had been filed against respondent for allegedly fleeing Santa Clara County with the intent to deprive petitioner of a right to custody of the child.

[4] Respondent’s memorandum of points and authorities indicated that the following documents were attached to the memorandum: (1) certificates showing that respondent and the child were of “Navajo Indian Blood,” (2) a police report regarding the incident in which appellant was arrested for domestic violence against respondent, and (3) the protective order entered by the Navajo Nation court protecting respondent and the child from appellant. These documents are not included in appellant’s appendix on appeal.

[5] This court received a settled statement regarding the November 30, 2020 hearing. In this regard, the trial court (a different judge than the judge who had originally presided

(continued)

over the hearing) modified appellant’s proposed settled statement regarding the November 30, 2020 hearing, and certified the settled statement as modified. In the settled statement, the court indicated that the judge who had presided over the hearing had since retired, that no testimony or exhibits were presented at the hearing, that argument was made by counsel at the hearing, that the matter was taken under submission, and that an order issued on January 13, 2021. The court further indicated that appellant had failed to attach a proof of service regarding his proposed settled statement, and it was “unknown” whether respondent had been served. The court stated that after appellant “serves the proposed statement,” respondent “may serve and file proposed amendments to the proposed statement.” It is not clear from the record on appeal whether appellant served respondent with his proposed settled statement.

[6] “ ‘[I]n determining a child’s period of residence, “[a] period of temporary absence . . . is part of the period.” (§ 3402, subd. (g).)’ [Citation.]”

[7] Section 3422, subdivision (a) states in its entirety: “(a) Except as otherwise provided in Section 3424 [regarding temporary emergency jurisdiction], a court of this state that has made a child custody determination consistent with Section 3421 [regarding jurisdiction to make an initial child custody determination] or 3423 [regarding modification of a child custody determination made by a court of another state] has exclusive, continuing jurisdiction over the determination until either of the following occurs: [¶] (1) A court of this state determines that neither the child, nor the child and one parent, nor the child and a person acting as a parent have a significant connection with this state and that substantial evidence is no longer available in this state concerning

(continued)

the child’s care, protection, training, and personal relationships. [¶] (2) A court of this state or a court of another state determines that the child, the child’s parents, and any person acting as a parent do not presently reside in this state.”

[8] Section 3424, subdivision (d) states: “A court of this state that has been asked to make a child custody determination under this section [regarding temporary emergency jurisdiction], upon being informed that a child custody proceeding has been commenced in, or a child custody determination has been made by, a court of a state having jurisdiction under Sections 3421 to 3423, inclusive, shall immediately communicate with the other court. A court of this state which is exercising jurisdiction pursuant to Sections 3421 to 3423, inclusive, upon being informed that a child custody proceeding has been commenced in, or a child custody determination has been made by, a court of another state under a statute similar to this section shall immediately communicate with the court of that state to resolve the emergency, protect the safety of the parties and the child, and determine a period for the duration of the temporary order.”