Neal v. Superior Court

[849]

Opinion

FILES, P. J.

A petition for a writ of mandate raises the question whether, under the circumstances shown, the Los Angeles County Superior Court has jurisdiction to modify an Arkansas child custody decree.

The parties were married in California and lived in this state until January 1976. The child was bom in California on December 4, 1975. In January 1976 the couple moved to Arkansas, where they resided until the marriage ended in divorce on February 8, 1978. The divorce decree, based on a stipulation of the parties, gave custody to the father, with visitation rights in the mother. On March 10, 1978, in violation of the Arkansas decree, the mother brought the child to California, where she presently resides. On March 27 the father secured, but has not executed, a warrant in lieu of habeas corpus for the return of the child to him.

On March 28, 1978, the mother filed in the respondent court a petition for temporary and permanent child custody.

A hearing was held on March 29, at which the mother testified that while the child had been in Arkansas he had suffered from allergies, which required that he be hospitalized several times; and after three weeks in California he showed no symptoms of allergy. The respondent court therefore ordered temporary custody in the mother, with limited visitation rights to the father, and directed investigation of the facts by the probation department.

1

Civil Code section 5152, subdivision (l)(b), (enacted in 1973) confers jurisdiction when “It is in the best interest of the child that a court of this state assume jurisdiction because (i) the child and his parents, or the child and at least one contestant, have a significant connection with this state, and (ii) there is available in this state substantial evidence concerning the child’s present or future care, protection, training, .and personal relationships.”

We note that clauses (i) and (ii) are in the conjunctive. Conformity with both is indispensable to jurisdiction. It follows that a “significant connection” of the child with the state is a requisite.