STANIFORTH, J. I respectfully dissent.
Professor Bodenheimer, writing in 1977,1 anticipated the facts of this case when she observed:
[470]“The child’s temporary presence in a state on a visit does not confer custody jurisdiction under the Act. [Fn. omitted.] What would be the consequence if the visited state happens to be the state of the original decree that continues to have jurisdiction? Would the noncustodial parent who has remained in the state have an advantage and a chance to gain custody from the child’s custodian who has moved away? It is generally acknowledged that the unfortunate tendency of courts to favor the local petitioner still persists. [Fn. omitted.] Thus the child would be exposed to the risk of having custody transferred to the visited parent.
“Exactly this danger was present and almost became a reality in Moore v. Moore [24 Ore.App. 673 (546 P.2d 1104)] . . . .” (Bodenheimer, Progress Under the Uniform Child Custody Jurisdiction Act and Remaining Problems: Punitive Degrees, Joint Custody, and Excessive Modifications, (1977) 65 Cal.L.Rev. 978, 995-996.)
• The facts postulated and the exact “danger” feared by Professor Bodenheimer have at last become a reality in the majority opinion.
Facts
’• The following are either wholly uncontradicted facts or factual conclusions amply supported by the record.
' (1) The parties were divorced in North Dakota in 1974, and the mother was granted custody of two-year-old Scott.
" (2) Shortly after the divorce, and with court approval, the mother moved with Scott to California.
(3) Since 1974, Scott has resided with his mother in California except during a six-month period in 1976 when by agreement Scott was with the father and during summer visitation periods which, on occasions, have been extended by the father’s refusals to return the child at the end of the visitation period. On the occasion of each of these violations of the court órder he has brought action in North Dakota courts seeking a change of ’custody.
(4) Thirty-four days after the North Dakota order changing temporary custody in such a proceeding the mother filed this action in California to establish the foreign judgment, modify visitation, and compel the father to dismiss his North Dakota proceeding.
[471](5) Concerning the jurisdictional basis of the North Dakota order, the California superior court judge (based upon the telephope communication between the two courts2) concluded; “He [the North Dakota referee] took the position that they have the child and that they had a previous custody order in force and effect and, therefore, he felt it would be proper for North Dakota to continue with the jurisdiction.” And “Referee Dietz expressed to me on the phone that he felt the only issue in North Dakota was the fact that if in fact she was living with this man, that automatically that previous order vested custody in the father.”
(6) In October 1978, after this telephonic dialogue, the North Dakota court found it had continuing jurisdiction under their similar Uniform Child Custody Jurisdiction Act (Uniform Act). After the father filed his petition for writ in this court, the North Dakota court awarded permanent custody of Scott to the father, subject to the mother’s reasonable visitation rights, and terminated child support. This order on its face appears as a sanction for the mother’s “wilful” failure to appear in North Dakota for a deposition.
(7) Concerning the critical fact issue of the “child’s home state” (Civ. Code, § 5152, subd. (l)(a)), the court found; “The minor child is clearly domiciled in this State, has resided in this State in excess of one year and went back to North Dakota to visit with the father. The father during the. visitation instituted proceedings in North Dakota for a change of custody. North Dakota was the original jurisdiction of the divorce and was the jurisdiction of a subsequent custody hearing. But after that custody hearing which was favorable to the mother, the mother established residence in this State and the child has been domiciled here and I think has been a resident and physically present for the majority of the last three and a half or four years.”
(8) And concerning the “significant connection” test (Civ. Code, § 5152, subd. (l)(b)), the court found; “[Y]ou have a child who is domiciled, whose legal residence is here, whose mother is here, she has custody pursuant to a Court order, and that child goes back to North Dakota to visit with his father, there is no connection for that child and a North Dakota Court except the child is physically within the confines of that State visiting his father; then his father brings a custody action; . . .” and “[S]he got custody out of the North Dakota Court. Now, here we are for the third custody hearing in this case and for a child that has been living [472]three and a half out of the last four years to have to go up to North Dakota and litigate it again doesn’t make sense.”
(9) Further, the court stated: “[T]he real nuts and bolts of a custody action where somebody challenges the fitness of the mother is to have the witnesses available who have firsthand knowledge as to what the living conditions are. In this situation, of course, the children’s teachers are here; their doctor is here; their neighbors are here; anybody that would have any information about this case is here. . . . [I]f North Dakota continues with the jurisdiction in this case that the father doesn’t have to come here, but the mother has to go there, but she goes absent witnesses. On the other hand, if this Court has jurisdiction in this custody action, he would have to come here, which is no more expensive than she going there, but the witnesses would be here to bring to the attention of the trial Judge whatever the living conditions are for this child and what is best for this child.” (Italics added.)
In light of these fact findings, the majority determination becomes a classic example of what the Uniform Act was intended to prevent. Such rule invites violation of the principal purpose of the Uniform Act, to wit: to discourage forum shopping and assure that litigation concerning custody takes place ordinarily in the state where the child has the closest connection and where significant evidence concerning the child’s care is most readily available. These facts “ciystalize[s] in a prototypical situation,” the dilemma the Uniform Act was designed to prevent.
I
Before the enactment of the Uniform Act, the California Supreme Court confronted a situation remarkably similar to the case at bench. In Ferreira v. Ferreira, 9 Cal.3d 824 [109 Cal.Rptr. 80, 512 P.2d 304], the parties there had obtained a divorce decree in an Idaho court, awarding the custody of two minor children to the mother with reasonable visitation rights to the father. The mother remarried and moved with the children to Alabama; the father went to Delaware to complete his medical residency. While in Delaware both children visited the father, who, after the completion of his medical studies, left that state and settled together with the children in California. In California the father initiated several actions in order to modify the existing custody decree, mainly on the ground that if returned to Alabama, the children would be mistreated by their stepfather. In countering these moves, the mother filed an action in Alabama seeking the exclusive custody of the children. The Alabama [473]court granted the mother’s petition and ordered that the father return the children to the mother’s custody. The California court, in turn, awarded the temporary custody of the children to the resident father. The basic facts in Ferreira and the instant case are in a mirror image relationship. The child whose custody rests with the nonresident parent visited the forum state. The resident parent then seizes the opportunity to change custody from the nonresident parent by bringing an action for modification of the custody order in the forum state. Thereupon the nonresident parent launches a counteraction in his or her own state. Each state decides the case in favor of its own resident, which generates not only jurisdiction competition between the sister states, but also creates the potential for conflicting decisions with respect to the lawful custody of the child.
While recognizing the almost insoluble dilemma posed by forum shopping, conflicting adjudications and even child stealing, our Supreme Court concluded in Ferreira that in the factual setting there present, the “visitation state” [here North Dakota] should stay the proceedings to permit the final adjudication of the custody issue in the state [here California] of the nonresident parent; and even in case of compelling proof that the child’s health and safety might be jeopardized if released to the nonresident parent having the custody right under an existing decree, the court in the “visitation state” may go no further than granting only temporary custody to the resident parent.
Since adoption by California of the Uniform Act, judicial interpretations of the Uniform Act, both in California and in courts of sister states, reach conclusions contrary to the majority’s opinion. It is conceded as a threshold matter, the California court had unquestionable jurisdiction to proceed in the matter. The Uniform Act provides in pertinent part that “A court of this state which is competent to decide child custody matters has jurisdiction to make a child custody determination by initial or modification decree if . . . (a) This state . . . (ii) had been the child’s home state within six months before commencement of the proceeding and the child is absent from this state because of his removal or retention by a person claiming his custody or for other reasons, and a parent or person acting as parent continues to live in this state.” (Civ. Code, § 5152, subd. (1).) The case at bench clearly falls within the cited statute.
It is equally clear that North Dakota has jurisdiction to modify its original custody order. (Bosse v. Superior Court, 89 Cal.App.3d 440, 443 [152 Cal.Rptr. 665]; Clark v. Superior Court, 73 Cal.App.3d 298, 305, 307 [474][140 Cal.Rptr. 709]; Moore v. Moore, supra, 546 P.2d 1104, 1107; Moran v. Moran (N.D. 1972) 200 N.W.2d 263.)
The majority opinion at pages 466, 467, ante, resolves this concurrent jurisdiction problem in this statement; “The state which enjoys priority of time in initiáting the proceedings will proceed if the dispute is not resolved by agreement or consent of the other court,” and as authority for this conclusion cites the Code Commissioner’s Notes to section 5155. This 1968 conclusion is not conformable with the California case law and decisions in sister states interpreting the act as well as more recent comment by learned annotators.
II
The statutory point of beginning in the resolution of this conflict between courts of concurrent jurisdiction is Civil Code section 5155, which provides in pertinent part: “(1) A court of this state shall not exercise its jurisdiction under this title if at the time of filing the petition a proceeding concerning the custody of the child was pending in a court of another state exercising jurisdiction substantially in conformity with this title, unless the proceeding is stayed by the court of the other state because this state is a more appropriate forum or for other reasons.” (Italics added.)
These plain, explicit words compel the conclusion that the California court was obligated to decline to exercise its conceded jurisdiction over the custody matter if North Dakota was in fact exercising jurisdiction substantially in conformity with our act (“this title”). Conversely, if North Dakota was not “exercising jurisdiction” in conformity with our act, the California court was not mandated to decline to exercise its jurisdiction. This conclusion is buttressed by these further provisions of the act. Civil Code section'5163 provides in pertinent part: “(1) If a court of another state has made a custody decree, a court of this state shall not modify that decree unless (a) it appears to the court of this state that the court which rendered the decree does not now have jurisdiction under jurisdictional prerequisites substantially in accordance with this title or has declined to assume jurisdiction to modify the decree and (b) the court of this state has jurisdiction.” (Italics added.) And the act further specifies: “The courts of this state shall recognize and enforce an initial or modification decree of a court of another state which had assumed jurisdiction under statutory provisions substantially in accordance with this title . . . .” (Civ. Code, § 5162; italics added.) Thus, section 5155 imposes the duty upon the trial [475]court of California to make that preliminary determination of whether North Dakota has “assumed jurisdiction substantially in conformity with this title.” Nowhere in the act is there the least hint that the North Dakota court is delegated this function of determining whether the California court should decline to exercise its jurisdiction. It is a fundamental tenet of jurisprudence that a court has power and obligation to determine its own jurisdiction. (Abelleira v. District Court of Appeal, 17 Cal.2d 280, 302 [109 P.2d 942, 132 A.L.R. 715].)
The act sets forth the exclusive method of determining subject matter jurisdiction in custody cases in California. (In re Marriage of BenYehoshua, 91 Cal.App.3d 259, 264 [154 Cal.Rptr. 80].) The provisions of the act supersede any contrary decisional and statutory laws. (In re Marriage of Steiner, 89 Cal.App.3d 363, 371 [152 Cal.Rptr. 612]; Smith v. Superior Court, 68 Cal.App.3d 457, 461-462 [137 Cal.Rptr. 348]; Neal v. Superior Court, 84 Cal.App.3d 847, 850 [148 Cal.Rptr. 841].) Section 5152 was intended to limit jurisdiction in custody disputes.
Therefore, the superior court here was required to, and did in fact, look to the specific provisions in the act detailing the circumstances under which a California court should proceed to exercise its jurisdiction over .a child custody matter as a basis for determining whether North Dakota was exercising jurisdiction “in conformity with ‘this title’.” If the superior court had found that the North Dakota court’s exercise of its jurisdiction was authorized by “this title”—our act—then the California superior court was required to decline to exercise its jurisdiction.
Civil Code section 5152 defines those factual bases which do and do not confer jurisdiction on a California [or North Dakota] court To determine a custody issue. Section 5152, subdivisions (2) .and (3) of the act specifically define the bases upon which jurisdiction over the custody issue may be exercised. First, it is noted that there is no provision in the act for jurisdiction to be established by reason of the presence of the parties or by stipulation or consent. The act expressly provides that the mere physical presence or the absence of the minor is neither a prerequisite to nor is it determinative of the custody issu.e. Nor is there any provision in section 5152 or anywhere in the act giving .jurisdiction to a court on the basis of priority in filing the action. Any implied grant of jurisdiction on this basis would fly in the face of the express purpose of the act to deter abductions (Civ. Code, § 5150, subd. (l)(e)) to avoid jurisdiction competition (Civ. Code, § 5150, subd. (l)(a)) and to assure that litigation concerning custody take place in the state that has the [476]“closest connection” and where significant evidence is “most readily available” (Civ. Code, § 5150, subd. (l)(c)). Such rule would precipitate a “race for the courthouse” and invite the very “dangers” feared by Professor Bodenheimer.
The affirmative provisions of the act pertinent to this case which do govern jurisdiction are: “(1) A court of this state which is competent to decide child custody matters has jurisdiction to make a child custody determination by initial or modification decree if conditions as set forth in any of the following paragraphs are met:
“(a) This state (i) is the home state of the child at the time of commencement of the proceeding, or (ii) had been the child’s home state within six months before commencement of the proceeding and the child is absent from this state because of his removal or retention by a person claiming his custody or for other reasons, and a parent or person acting as parent continues to live in this state.
“(b) 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.
“(d)(i) It appears that no other state would have jurisdiction under prerequisites substantially in accordance with paragraphs (a), (b), (c), or another state has declined to exercise jurisdiction on the ground that this state is the more appropriate forum to determine the custody of the child, and (ii) it is in the best interest of the child that this court assume jurisdiction.
“(2) Except under paragraphs (c) and (d) of subdivision (1), physical presence in this state of the child, or of the child and one of the contestants, is not alone sufficient to confer jurisdiction on a court of this state to make a child custody determination.
“(3) Physical presence of the child, while desirable, is not a prerequisite for jurisdiction to determine his custody.” (Civ. Code, § 5152, subds. (l)(a), (b), and (d); (2) and (3).)
[477]When the father began his change of custody proceedings in North Dakota, Scott was present in North Dakota by reason of a court authorized temporary visit with the father. He had been residing, domiciled, going to school in California with his mother since the divorce in 1974 (except as noted above). Without any question California, not North Dakota, was the “home state” within the home state rule of section 5152, subdivision (l)(a).
Turning next to subdivision (l)(b) of section 5152 containing the “significant connection” test, it is established by the facts before the trial court that the child in this case did not have the requisite significant relationship to North Dakota but rather that California was the state having the maximum contacts as well as the readily available evidence concerning the child’s care, etc. The child’s home, friends, school, mother were in California. Thus, under both subdivisions (l)(a) and (l)(b) of section 5152, North Dakota did not have jurisdiction. The law as well as substantial evidence supports the trial court’s conclusion on this issue.
Speculation concerning the “significant connection” the child has in North Dakota will not take the place of hard facts. Nor does conflict in the evidence on this point lead to any other conclusion but that this court is bound by the trial court’s fact finding if supported by substantial evidence.
Turning next to subdivision (l)(d) of section 5152, it will be noted that substantial evidence supports the trial court’s determination that North Dakota does not have jurisdiction under subparagraphs (a), (b) or (c) above. Concerning subdivision (l)(d)(ii), it will be noted that one of the requirements is that it be “in the best interest of the child that this [North Dakota] court assume jurisdiction.” All authorities agree that in the interstate custody disputes, the interest of the child is paramount. (See Bodenheimer, Uniform Child Custody Jurisdiction Act: A Legislative Remedy for Children Caught in the Conflict of Laws (1969) 22 Vand.L. Rev. 1207, 1221; Clark v. Superior Court, supra, 73 Cal.App.3d 298, 308-309; In re Marriage of Ben-Yehoshua, supra, 91 Cal.App.3d 259, 267.)
In 9 Uniform Laws Annotated (1973) page 108, it is stated: “[jurisdiction exists only if it is in the child’s interest, not merely the interest or convenience of the feuding parties, to determine custody in a particular state. The interest of the child is served when the forum has optimum access to relevant evidence about the child and family. There must be maximum rather than minimum contact with the state. The submission of the parties to [478]a forum ... is not sufficient without additional factors establishing closer ties with the state. ” (Italics added.)
The appeal court in Clark v. Superior Court, supra, 73 Cal.App.3d 298, 308, approved this comment of Professor Bodenheimer in the Vanderbilt Law Review (Bodenheimer, Uniform Child Custody Jurisdiction Act (1969) 22 Vand.L.Rev. 1207, 1221): “ ‘As a general proposition the state in which there is the best opportunity to investigate the facts is most qualified to take jurisdiction.’ [Citation].” Another commentator states as follows: “ ‘All discussions agree that in an interstate custody dispute the interests of the children are paramount. To increase the probability that a custody decision will be in the best interests of the child, the case should be decided in the court with the greatest access to the relevant evidence.’ (Comment (1974) 62 Cal.L.Rev. 365, 371.)” (Clark, pp. 308-309.)
The court in In re Marriage of Ben-Yehoshua, supra, 91 Cal.App.3d 259, 267-268, stated: “Inherent in the notion of the best interests of the child are the criteria set forth in subdivision (l)(b) of section 5152 (significant relationship), which in this instance are determinative of the ‘best interest’ issue-under subdivision (l)(d) of section 5152. For the reasons we have- already stated, it is apparent that California has only minimum access to the facts relevant to the custody issue and that it is in the best interests of the children that California not assume to determine custody.”
Here, substantial evidence, uncontradicted fact support the trial court’s conclusion that California not only is the child’s home state but that the significant relationships are here and the best interest of the child can be best investigated in California. From the record before this court, the conclusion drawn by the trial court is reasonable—North Dakota had only minimal access to facts concerning the child. The Uniform Act favors the state having the maximum contacts for determining the child’s best interest. Much of the contact established by the child in North Dakota has resulted from the father’s refusal to surrender the child at the end of visitation periods.
The foregoing analysis of critical facts in light of the Uniform Act point to one conclusion. The trial court was not mandated by the statutes or the facts here to decline jurisdiction or to find that jurisdiction did vest in the North Dakota court under any interpretation of section 5152. The foregoing construction of the Uniform Act is supported by a host of [479]California decisions as well as from sister state courts interpreting the Uniform Act. (See Clark v. Superior Court, supra, 73 Cal.App.3d 298; In re Marriage of Ben-Yehoshua, supra, 91 Cal.App.3d 259; In re Marriage of Kern, 87 Cal.App.3d 402 [150 Cal.Rptr. 860]; Schlumpf v. Superior Court, 79 Cal.App.3d 892 [145 Cal.Rptr. 890]; Neal v. Superior Court, 84 Cal.App.3d 847 [148 Cal.Rptr. 841]; Bosse v. Superior Court, supra, 89 Cal.App.3d 440; Moore v. Moore, supra, 546 P.2d 1104.)
No case has been found that supports the majority’s interpretations of the Uniform Act. Reliance upon Smith v. Superior Court, 68 Cal.App.3d 457 [137 Cal.Rptr. 348], is misplaced for it is not factually or legally in point. But let the court in Clark v. Superior Court, supra, at pages 306-307, make the analysis: “In Smith v. Superior Court. . ., this court held that a California court, which had entered the initial custody decree, had jurisdiction to enforce a contempt order against the mother for violation of a modification decree giving the father certain visitation rights, which was entered upon her stipulation at a time when the child’s home state was Oregon. There, unlike this case, the mother had appeared and taken part in proceedings before the California court without objecting to the jurisdiction until orders were made which she failed to obey. Here the mother has promptly objected to the jurisdiction of the local court.” [Fn. omitted.]
Thus the key to understanding, approving of the Smith v. Superior Court decision is to be found in the concurring opinion of Sims, J.: “[.jurisdiction [for the contempt proceedings] over the person of petitioner, who voluntarily appeared and stipulated to a change in the custody order, was conferred by sections 410.10 and 410.50 of the Code of Civil Procedure.” (Id., at p. 466.) Professor Bodenheimer explains the Smith decision in essentially the same terms. (Bodenheimer, 65 Cal.L. Rev., supra, pp. 999-1000.)
Ill
The trial court, after consultation with the North Dakota court (referee) and hearing the evidence, determined that California was not an inconvenient forum under section 5156 of the Uniform Act. The same facts supporting the judge’s conclusion that North Dakota was not exercising its jurisdiction “substantially in conformity with this title” (§§ 5155, 5152) supports the court’s conclusion it was not required to pass the jurisdictional power it possessed to North Dakota through the inconvenient forum rule. This procedure followed by the court was the [480]last in the multistep (3) process a trial court must follow in determining whether to exercise jurisdiction under the Uniform Act. (Clark v. Superior Court, supra, 73 Cal.App.3d 298, 308; Carson v. Carson, 29 Ore.App. 861 [565 P.2d 763]; Moore v. Moore, supra, 546 P.2d 1104.)
As was said in In re Marriage of Kern, supra, 87 Cal.App.3d 402, 410: “Lastly, the Uniform Act expressly authorizes the stay or dismissal of the proceeding by the forum state if another state is a more appropriate forum to decide the matter. [Fn. omitted.]
“We are, of course, well aware of the general proposition that whether the trial court stays the proceedings on the grounds of forum non conveniens is purely discretionary, and that the ruling of the trial court will not be disturbed on appeal unless there is a clear abuse of discretion [citations].”
IV
One further matter deserves attention. The father’s claim of jurisdiction in North Dakota is based also upon orders which are facially, by definition, punitive. (Settle and Settle, 25 Ore.App. 569 [550 P.2d 445, 447].) The 1977 North Dakota order provided for a change of custody of the child, in future, without hearing, upon the happening of events having no necessary relationship to the best interest of the child. Such a change of custody would have at its base the desire to punish the mother because the North Dakota court was insulted by her disregard of its authority. Such punitive orders are invalid. (See, e.g., McDowell v. Orsini, 54 Cal.App.3d 951, 963-964 [127 Cal.Rptr. 285]; Forslund v. Forslund, 225 Cal.App.2d 476 [37 Cal.Rptr. 489].)
As noted in Miller v. Superior Court, 22 Cal.3d 923, 930 [151 Cal.Rptr. 6, 587 P.2d 723], a temporary order changing custody without immediate showing of the child’s welfare may be nonpunitive; but the 1977 court order here with its automatic change of custody provision is not a temporary order. It regulates the mother’s conduct and the child’s custody without reference to Scott’s welfare. It is therefore arbitrary and punitive.
“Although the Uniform Act requires recognition and enforcement of out-of-state custody decisions in general, punitive decrees do not command the respect that is due other out-of-state custody decrees and should not be recognized under the Act. Punitive decrees are disfavored because [481]they disrupt the stability and continuity of the child’s environment.” (Bodenheimer, op. cit., supra, pp. 1003-1004; italics added.)
In determining the custody of children, the courts are not engaged in a disciplinary action to punish parents for their shortcomings. Custody is to be awarded to either parent according to the best interest of the child. (In re Marriage of Stoker, 65 Cal.App.3d 878, 881 [135 Cal.Rptr. 616]; Ashwell v. Ashwell, 135 Cal.App.2d 211, 217 [286 P.2d 983].)
There is no finding by any court nor even any suspicion that the mother’s lifestyle3 or her failure to respond to a subpoena re deposition directing her to appear in a lawyer’s office in North Dakota touch upon, affects the child’s upbringing in any respect good or bad. Such an order “should not be recognized under the Act.”
In sum, the majority opinion has ignored that profound central concept of our law, wherever it touches upon a child’s custody: The best interests of the child govern; the interest or desires of parents, even the dignity of the court is subordinate. (Civ. Code, § 5150, subd. (l)(c); Comrs. Notes to the U. Child Custody Jur. Act, 9 U. Laws—Ann. (1973) § 3, p. 108.)
I would deny the petition for writ of mandate.
Professor Bodenheimer’s views on this “danger”—presented after eight years’ experience with the Uniform Act—are diametrically opposed to certain categorical statements expressed in the Code Commissioner’s Notes to section 5155 (see fn. 9 of majority opinion) and in her 1969 article, Uniform Child Custody Jurisdiction Act, 22 Vand. L.Rev. 1207, 1237, relied upon by the majority. This “danger” has been perceived and described judicially as a “hiatus,” a “dilemma” (infra).
This communication is specifically authorized (Civ. Code, § 5156, subd. (4)) and encouraged (Civ. Code, § 5150, subd. (l)(b)) by the Uniform Act.
During the pendency of this action, the mother and Ross Moody—his impediments to matrimony removed—have become husband and wife.