## Facts

- Robert D. Grahm (father) and Lisa Beth Zohar (mother) were married and had twin daughters born in California in October 2001.
- In October 2003, a California court entered a custody/visitation order in the parties’ dissolution case awarding the parents joint legal custody, awarding physical custody to the mother, and granting visitation to the father.
- About one month before that California order was entered, the mother moved with the twins to New York with the father’s consent.
- In early 2004, the mother sought to modify custody in a New York court, but the New York court dismissed for lack of jurisdiction and the dismissal was affirmed on appeal.
- During that time, the father continued to pursue relief in California related to visitation and custody, including a motion to modify visitation and a later motion seeking sole legal custody and primary physical custody.
- In March 2005, the Los Angeles County Superior Court family court declined to exercise jurisdiction to decide the father’s modification requests, reasoning that the mother and children no longer had a significant connection with California and that the evidence was in New York.
- The father petitioned the California Court of Appeal for a writ of mandate directing the family court to vacate its order and decide the pending motions on the merits.

## Issues

1. Under Family Code § 3422 (UCCJEA), did the California court that made the initial custody determination retain exclusive, continuing jurisdiction to modify the order after the mother and children moved to New York?
2. Did the family court err by treating relocation and the asserted location of evidence as sufficient to end California’s exclusive, continuing jurisdiction without the findings required by § 3422?

## Decision

- The Court of Appeal granted writ relief.
- The court held the family court misread and misapplied Family Code § 3422’s standard for ending exclusive, continuing jurisdiction.
- Section 3422 allows exclusive, continuing jurisdiction to end only if a California court determines both (1) there is no significant connection between California and the child (or the child and a parent), and (2) substantial evidence concerning the child’s care, protection, training, and personal relationships is no longer available in California.
- The family court’s focus on the mother and children’s residence in New York did not, by itself, establish the absence of a significant California connection where the father remained in California and continued to exercise visitation and litigate parenting issues there.
- The record did not support the conclusion that substantial evidence was no longer available in California; evidence concerning the father’s relationship with the children, visitation history, and the California proceedings remained available in California even if day-to-day information about the children also existed in New York.
- The Court of Appeal directed the superior court to vacate its order declining jurisdiction and to proceed to hear and decide the father’s pending motions under the correct § 3422 standard.

## Legal Principles

- Under Family Code § 3422, the state that made the initial custody determination retains exclusive, continuing jurisdiction unless and until a court finds both: (1) no significant connection remains between the child (or child and a parent) and the state, and (2) substantial evidence concerning the child’s care, protection, training, and personal relationships is no longer available in the state.
- The § 3422 test is conjunctive; a court cannot end exclusive, continuing jurisdiction based only on a change in residence or an assumption that most current evidence is elsewhere.
- A noncustodial parent’s continued residence in California and ongoing exercise of California visitation rights can support a significant connection between California and the child.
- “Substantial evidence” includes evidence bearing on the parent-child relationship and the history of custody and visitation proceedings in the decree state, not only evidence tied to the child’s current daily life in another state.
- Interpretations of “significant connection” developed under the predecessor UCCJA remain relevant because § 3422 retains similar language and policy.

## Conclusion

Grahm v. Superior Court holds that a California court that issued the original custody order kept exclusive, continuing jurisdiction under Family Code § 3422 even after the mother and children moved to New York, because the father remained in California with ongoing visitation and litigation ties and California continued to have substantial evidence concerning the children’s care and relationships; the Court of Appeal therefore ordered the family court to vacate its order declining jurisdiction and to decide the father’s modification motions on the merits.


Grahm v. Superior Court, 132 Cal. App. 4th 1193, 34 Cal. Rptr. 3D 270 (2005)