Filed 8/16/13

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FIVE

BARRY VINCENT BREWER, JR.,

Plaintiff and Appellant,

v.

KYMAR CARTER,

Defendant and Respondent.

 B244767

 (Los Angeles County Super. Ct.

 No. BF042887)

APPEAL from an order of the Superior Court of Los Angeles County, Marc 

Marmaro, Judge. Reversed.

Barry Vincent Brewer, Jr., in pro. per., for Plaintiff and Appellant.

No appearance for Defendant and Respondent.

________________________________
2

A father appeals from a California court order finding Illinois to be a more 

convenient forum to resolve certain child custody issues.1 Father contends the trial court 

made the order without providing the parties an opportunity to present evidence as 

required under Family Code section 3427.2 We hold that before a court determines that 

California is an inconvenient forum to resolve custody issues, the court must provide the 

parties with an opportunity to present evidence on the issue. Due to the lack of evidence 

in this case, we cannot presume the trial court considered and applied the statutory factors 

set forth in section 3427. Therefore, we reverse and remand for further proceedings.

FACTS AND PROCEDURAL HISTORY

Appellant Barry Vincent Brewer, Jr., and Kymar Carter have a son, born on 

April 21, 2010, who shares Brewer‟s name. They lived together as a family in Los 

Angeles. In June 2011, Carter took their 14-month-old son to Chicago, Illinois, to visit 

Carter‟s family. When she did not return, Brewer filed a petition in pro. per. on 

August 8, 2011, to establish a parental relationship, seeking joint custody and visitation. 

Brewer requested and received a waiver of court fees based on his financial condition.

Carter attempted to file responsive documents, but the paperwork was rejected due 

to a filing fee error. On September 29, 2011, Brewer requested entry of Carter‟s default. 

His request was initially rejected for failure to complete the proof of service properly. 

On December 27, 2011, having resided in Illinois for six months, Carter filed a 

paternity action in Illinois. She did not tell Brewer about the action in Illinois. She 

received erroneous legal advice that because there was an action pending in Illinois, she 

did not need to respond in the California action.

 

1

 Respondent Kymar Carter has not filed a brief on appeal.

2 All further statutory references are to the Family Code, unless otherwise stated.
3

Carter‟s default was ultimately entered in the California proceeding and a default 

prove-up hearing scheduled for June 29, 2012. On the day of the hearing, Carter filed a 

motion to have her default set aside based on mistake and excusable neglect; specifically, 

her attempt to file responsive documents and the erroneous legal advice about the effect 

of the Illinois action. She also served Brewer with the Illinois action. The court noted at 

the hearing that Carter had filed a motion to set aside her default and there was a 

paternity action pending in Illinois involving the same parties. The court continued the 

hearing to August 14, 2012.

Carter filed a response to Brewer‟s petition to establish a parental relationship. 

She acknowledged the child was conceived in California and declared she currently lives 

in Illinois. She declared there was a case pending in Illinois. Carter sought sole custody 

of the child with reasonable visitation rights. She provided the same address on her 

pleadings that Brewer had used for her.

Carter informed the trial court that she could not afford the cost of the telephone 

service to appear at the hearing on August 14, 2012. At the hearing, the court found 

Carter had established grounds for relief from default. The court had spoken by 

telephone with the Illinois court where Carter‟s family law case had been filed. The 

California court found that California was not the child‟s home state when Brewer filed 

his petition, because the child had not lived in California for six continuous months 

immediately prior to the filing date. The court also found that Illinois was the child‟s 

home state when Carter filed her action in Illinois, and therefore, the custody 

determination should be made in Illinois. The court continued the hearing to October 24, 

2012, to allow Carter to file a response to the petition and to discuss the matter further 

with the Illinois court. The California court spoke with the Illinois court later that day, 

and the Illinois court agreed that Illinois should exercise jurisdiction. 

On August 24, 2012, Brewer filed a motion for reconsideration in the California 

proceedings. A hearing was held on October 1, 2012. The California court denied the 

motion for reconsideration, because it was not based on new law or facts. However, the 

court provided a different analysis for its conclusions. The court acknowledged that 
4

California had acquired jurisdiction to determine the custody matter prior to Illinois. 

However, the court declined to exercise jurisdiction under section 3427 and stayed any 

further action in light of the pending proceedings in Illinois. The court noted it was likely 

that relevant information about the child was located in Illinois where the mother lived, 

including information from medical providers and so forth. The court concluded the 

Illinois court was in a better position to determine the best interests of the child.

Brewer filed a timely notice of appeal from the order under section 3454 and Code 

of Civil Procedure section 904.1, subdivision (a)(3). We note the most recent documents 

sent to Carter by this appellate court have been returned with the notation that she moved 

without providing a forwarding address.

DISCUSSION

Standard of Review

A trial court‟s ruling to stay custody proceedings on the basis that another forum is 

more convenient is purely discretionary, and we will not reverse the ruling on appeal 

unless there was a clear abuse of discretion. (In re Marriage of Nurie (2009) 176 

Cal.App.4th 478, 490 (Nurie).) The trial court‟s exercise of discretion will be upheld as 

long as it reflects reasoned judgment and follows correct legal principles and policies. 

(Ibid.) 

General Principles Governing Jurisdiction

In California, subject matter jurisdiction in custody cases is determined under 

section 3421 of the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) 
5

(§ 3400 et seq.). (Nurie, supra, 176 Cal.App.4th at p. 490.)3 “Subject matter jurisdiction 

either exists or does not exist at the time an action is commenced. [Citation.] There is no 

provision in the UCCJEA for jurisdiction by reason of the presence of the parties or by 

stipulation, consent, waiver, or estoppel. [Citations.]” (Id. at p. 491.)

Under the UCCJEA, a California court has jurisdictional priority to issue an initial 

child custody determination if California was the child‟s home state when the proceeding 

was commenced, or California was the child‟s home state within six months of the 

commencement of the proceeding and although the child is absent from the state, a parent 

continues to live in California. (§ 3421, subd. (a)(1); see Nurie, supra, 176 Cal.App.4th 

at p. 491.)4

 

3

 The UCCJEA, adopted effective January 1, 2000, replaced the former Uniform 

Child Custody Jurisdiction Act (UCCJA) in California. (In re Marriage of Paillier

(2006) 144 Cal.App.4th 461, 469.)

4

 Section 3421 provides for jurisdiction to make an initial child custody 

determination as follows: “(a) Except as otherwise provided in Section 3424 [for 

temporary emergency jurisdiction], a court of this state has jurisdiction to make an initial 

child custody determination only if any of the following are true: [¶] (1) This 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. [¶] (2) A court of another state does not have jurisdiction 

under paragraph (1), or a court of the home state of the child has declined to exercise 

jurisdiction on the grounds that this state is the more appropriate forum under 

Section 3427 or 3428, and both of the following are true: [¶] (A) The child and the 

child's parents, or the child and at least one parent or a person acting as a parent, have a 

significant connection with this state other than mere physical presence. [¶] (B) 

Substantial evidence is available in this state concerning the child‟s care, protection, 

training, and personal relationships. [¶] (3) All courts having jurisdiction under 

paragraph (1) or (2) have declined to exercise jurisdiction on the ground that a court of 

this state is the more appropriate forum to determine the custody of the child under 

Section 3427 or 3428. [¶] (4) No court of any other state would have jurisdiction under 

the criteria specified in paragraph (1), (2), or (3). [¶] (b) Subdivision (a) is the exclusive 

jurisdictional basis for making a child custody determination by a court of this state. [¶] 

(c) Physical presence of, or personal jurisdiction over, a party or a child is not necessary 

or sufficient to make a child custody determination.”
6

“„Home state‟ means 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. In the case of a child less than six months 

of age, the term means the state in which the child lived from birth with any of the 

persons mentioned. A period of temporary absence of any of the mentioned persons is 

part of the period.” (§ 3402, subd. (g).)

In this case, when Brewer filed his custody petition in California, California 

clearly had jurisdiction over custody proceedings pursuant to section 3402, subdivision 

(a). California was the child‟s home state within six months of the commencement of the 

proceeding and although the child was absent from the state, Brewer continued to live in 

California. At the time of the filing, Brewer‟s son had been out of California for no more 

than 72 days. (Compare In re Marriage of Torres (1998) 62 Cal.App.4th 1367, 1374 

[under the former provisions of the UCCJA, California was the home state of a child 

absent from the state for 77 days].)

The conclusion would be the same under Illinois law. Illinois has adopted the 

same provisions of the UCCJEA governing subject matter jurisdiction. (See People v. 

Hollis (In re D.S.) (2005) 217 Ill.2d 306, 312-313.) The committee comments to 

section 101 of the UCCJEA state that its purposes are to avoid interstate jurisdictional 

competition and conflict in child custody matters, promote interstate cooperation to 

render a custody decree in the state which can best decide the matter in the interest of the 

child, discourage use of the interstate system to continue custody controversies, deter 

abductions of children, avoid relitigation of another state‟s custody decisions, and 

facilitate enforcement of other state‟s custody decrees. (9 West‟s U. Law Ann. (1999) 

UCCJEA, com., § 101, p. 657.)5

When Carter filed a competing action in Illinois, the UCCJEA required the Illinois 

court to decline jurisdiction, because at the time of the filing, “a proceeding concerning 

 

5

 “„“Reports of commissions which have proposed statutes that are subsequently 

adopted are entitled to substantial weight in construing the statutes.”‟ [Citations.]” 

(Smith v. Superior Court (1977) 68 Cal.App.3d 457, 463.)
7

the custody of the child [had] been commenced in a court of another state having 

jurisdiction substantially in conformity with [the UCCJEA],” and that proceeding had not 

been terminated or stayed based on finding Illinois was a more convenient forum. (750 

Ill. Comp. Stat. Ann. 36/206 (750 ILCS 36/206).)6

The UCCJEA encourages communication between courts, however, within certain 

parameters. Section 3410 authorizes a California court to communicate “with a court in 

another state concerning a proceeding arising under this part.” (§ 3410, subd. (a).) If the 

parties are not allowed to participate in the communication with the court of the other 

state, “they must be given the opportunity to present facts and legal arguments before a 

decision on jurisdiction is made.” (§ 3410, subd. (b).) A record must be made of any 

communication under section 3410, other than administrative matters such as schedules, 

calendars, court records, and the parties must be promptly informed and provided access 

to the record. (§ 3410, subds. (c) & (d).)

Inconvenient Forum 

Brewer contends the trial court‟s ruling that California was an inconvenient forum 

was an abuse of discretion. Specifically, the court failed to provide an opportunity to 

present evidence on the issue as required under section 3427, and in the absence of 

evidence, the court could not consider and apply the statutory factors set forth in 

section 3427. We agree.

 

6

 The UCCJEA provides relief when a child is wrongfully taken across state lines 

to manufacture jurisdiction in a chosen forum. (Nurie, supra, 176 Cal.App.4th at 

pp. 511-512; Hogoboom & King, Cal. Practice Guide: Family Law (The Rutter Group 

2013) ¶ 7:151.1, pp. 7-61.) If a court has jurisdiction because the petitioning party 

engaged in unjustifiable conduct, the court must decline to exercise jurisdiction unless the 

parents have agreed to the proceedings, a court of the state having jurisdiction finds it to 

be a more appropriate forum, or no court of any other state has jurisdiction. (9 West‟s U. 

Law Ann., supra, UCCJEA, § 208, subd. (a), pp. 683-684; § 3428, subd. (a).)
8

Under section 3427, a California court may decline to exercise jurisdiction “if it 

determines that it is an inconvenient forum under the circumstances and that a court of 

another state is a more appropriate forum. The issue of inconvenient forum may be 

raised upon motion of a party, the court‟s own motion, or request of another court.” 

(§ 3427, subd. (a).)

Before determining that California is an inconvenient forum, the California court 

must first consider whether it is appropriate for another state to exercise jurisdiction. 

(§ 3427, subd. (b).) To make this determination, “the court shall allow the parties to 

submit information and shall consider all relevant factors, including: [¶] (1) Whether 

domestic violence has occurred and is likely to continue in the future and which state 

could best protect the parties and the child. [¶] (2) The length of time the child has 

resided outside this state. [¶] (3) The distance between the court in this state and the 

court in the state that would assume jurisdiction. [¶] (4) The degree of financial 

hardship to the parties in litigating in one forum over the other. [¶] (5) Any agreement 

of the parties as to which state should assume jurisdiction. [¶] (6) The nature and 

location of the evidence required to resolve the pending litigation, including testimony of 

the child. [¶] (7) The ability of the court of each state to decide the issue expeditiously 

and the procedures necessary to present the evidence. [¶] (8) The familiarity of the 

court of each state with the facts and issues in the pending litigation.” (Ibid.)

In this case, neither parent filed a motion for a determination that California was 

an inconvenient forum. The trial court raised the inconvenient forum issue on its own 

motion, based on evidence that a custody case was pending between the same parties in 

another jurisdiction. Under the circumstances, the court should have provided the parties 

with an opportunity to submit evidence relevant to the court‟s determination of whether 

California was a convenient forum or Illinois was an appropriate forum. This was not 

done, and therefore, the order staying the proceedings was in error.

In addition, to determine whether California is an inconvenient forum, the trial 

court must consider and weigh all of the factors enumerated in section 3427, subdivision 

(b), relevant to the case before it. (§ 3427, subd.(b).) The court has broad discretion with 
9

respect to weighing the applicable factors and determining the appropriate weight to 

accord to each. However, the court cannot ignore any relevant circumstance enumerated 

in section 3427, subdivision (b); rather, the trial judge must recognize and apply each 

applicable statutory factor. Under the doctrine of “implied findings,” if the record is 

silent, we must presume the trial court fully discharged its duty to consider all of the 

relevant statutory factors and made all of the factual findings necessary to support its 

decision for which there is substantial evidence. (In re Marriage of Arceneaux (1990) 51 

Cal.3d 1130, 1133-1134; In re Marriage of Aninger (1990) 220 Cal.App.3d 230, 238 

(Aninger); In re Marriage of Condon (1998) 62 Cal.App.4th 533, 549; Border Business 

Park, Inc. v. City of San Diego (2006) 142 Cal.App.4th 1538, 1550.) Where the record 

reflects what the court actually did, however, these presumptions do not apply. (Border 

Business Park, supra, at p. 1550.) 

“[And of] course, each implied finding must be supported by substantial 

evidence.” (Aninger, supra, 220 Cal.App.3d at p. 238.) “[The] basis for application of 

the substantial evidence rule is the theory that the trier of fact is in the best position to 

determine the value and weight to be attributed to evidence. [Citation.] The rule thus 

operates only where it can be presumed that the court has performed its function of 

weighing the evidence. If analysis of the record suggests the contrary, the rule should not 

be invoked. [Citations.]” (Estate of Larson (1980) 106 Cal.App.3d 560, 567.)

In this case, the only express finding made by the trial court was the court‟s 

assumption that medical records and similar evidence are probably located in Illinois. 

However, there is no evidence to support that any such records exist or are necessary to 

resolve any issue in the pending litigation. Without the parties having had an opportunity 

to submit evidence on the inconvenient forum issue, and lacking any evidence in the 

record that California is an inconvenient forum or Illinois is a more convenient forum to 

resolve the parties‟ custody issues, we decline to presume the trial court made the factual 

findings necessary under section 3427. (Cf. Leadford v. Leadford (1992) 6 Cal.App.4th 

571, 575 [declining to imply findings as to out-of-state proceeding based on evidence 
10

presented by demurrer rather than motion for stay].) The order in this case must be 

reversed and the matter remanded for further proceedings.

DISPOSITION

The order is reversed. Appellant Barry Vincent Brewer, Jr., is awarded his costs 

on appeal.

KRIEGLER, J.

We concur:

TURNER, P. J.

MOSK, J.