BAXTER, J. I respectfully dissent.
The majority sanction disobedience of court orders and ignore the limited scope of a proceeding brought under the Revised Uniform Reciprocal Enforcement of Support Act (RURESA). The holding encourages parents who are subject to child support orders to become scofflaws. It threatens disruption of existing national uniform procedures by which child support orders are enforced. Moreover, it ignores the Legislature’s express limitation on the power of a court to relieve a parent from an obligation to pay arrearages.
The result is all the more unfortunate because it is completely unnecessary. The question of whether an estoppel against an action for arrearages should be recognized arises only because the nonsupporting parent failed to avail himself or herself of readily available procedures whereby he or she could be relieved judicially of the support obligation if, in fact, the child has been concealed by the custodial parent.
The majority acknowledge, but apparently find little significance in them for this case, the services available to a parent who believes a child is being concealed. If those services have been used, however, and the whereabouts [691]of the child remain unknown, surely the removal and concealment of the child are grounds for judicial modification or termination of the support obligation, either because the custodial parent is in contempt of court (see White v. White (1945) 71 Cal.App.2d 390 [163 P.2d 89]) or on the ground that the child’s circumstances and needs are then unknown. A parent who attempts to locate the child through officially available resources and seeks judicial relief from the support obligation demonstrates respect for the law as well as a sincere concern for the child and the parental obligation to the child. The parent whom the majority reward did neither, but is nonetheless relieved of the support obligation for the purpose of punishing the alleged misconduct of the custodial parent.
I
Remedies of a Noncustodial Parent
The misconduct of a custodial parent who conceals a child and thereby interferes with the custody and/or visitation rights of the other parent is not justification for violating a court order to pay support for the child. The supporting parent who is sincerely interested in locating, maintaining family ties with, and supporting the child may enlist the state’s help in finding the child.
When a parent violates a custody or visitation decree by taking or detaining the child, Family Code section 3131 (Civ. Code, former § 4604, subd. (b)),1 imposes a mandatory duty on the district attorney to “take all actions necessary to locate and return the child and the person who violated the order and to assist in the enforcement of the custody or visitation order or other order of the court by use of an appropriate civil or criminal proceeding.” In doing so, the district attorney acts on behalf of the court (§ 3132; Civ. Code, former § 4604, subd. (c)) at no cost to the parent. Education Code section 49076 makes school records and forwarding requests available, and the district attorney has access to postal, utility company, and other governmental records, as well as tax returns. A parent has no excuse for discontinuing support payments because a child’s whereabouts are unknown when this locator service is available.
Nor is it an excuse that the parent does not know where to send the payments even if that inability is caused by the custodial parent’s “active [692]concealment” of the child.2 If a parent has made use of the district attorney’s locator service and the child cannot be located, relief is available from the court that made the support order. Section 3680 et seq. (Civ. Code, former §§ 4700.1, 4801.9, subd. (a)) offer the parent a simplified means by which to obtain modification of a support order. The simplified procedures were adopted to create a “relatively quick way to modify child support awards” in a proceeding at which neither party need engage an attorney. (In re Marriage of Moore (1986) 185 Cal.App.3d 1244 [230 Cal.Rptr. 311].) The whereabouts of the custodial parent need not be known in order to take advantage of those procedures. Each party to the support order is required to advise the other of the party’s address and any subsequent change of address. (§ 3681.) Service of a request for modification may be made by certified mail at the last known address of the custodial parent. (§ 3690.) A parent may not claim ignorance of the right to seek modification or of the simplified procedures, since section 4010 mandates that a support order be accompanied by written notice of the procedure by which to obtain modification.
By creating an estoppel to seek accrued unpaid support, the majority excuse the failure of the obligor to seek modification or termination of the support obligation and sanction disobedience of a court order for support whenever a parent believes that the custodial parent is “actively” concealing the child. Tlie majority thereby abolish a vested property right (see In re Marriage of Everett (1990) 220 Cal.App.3d 846, 854 [269 Cal.Rptr. 917] [“Accrued arrearages are treated like a money judgment, each payment having become due under an extant judgment or order.”], and by doing so relieve the parent of responsibility for accrued child support notwithstanding an express legislative limitation on the power of the court to forgive arrearages even in cases in which the parent has sought modification or termination of the obligation. Section 3651, subdivision (b), prohibits such action, stating: “A support order may not be modified or terminated as to an amount that accrued before the date of the filing of the notice of motion or order to show cause to modify or terminate." (Italics added; see also, Civ. Code, former § 4700, subd. (a).)
If the legislative intent that “active concealment” may not be offered as a defense in an action to collect arrearages in child support is not made sufficiently clear by section 3651, subdivision (b), it most certainly is in section 4612 (Civ. Code, former § 4701.1, subd. (a)(4)(A)-(I)), which states the grounds which may be used as a defense to a motion to force sale of the [693]obligor’s assets to pay for arrearages. Those grounds do not include interference in any degree with custody and visitation.3
Moreover, neither the majority nor Justice Kennard attempts to reconcile the creation of an estoppel applicable to an attempt to judicially enforce payment of arrearages with the right of an obligee to do so “without prior court approval” through use of a writ of execution. (§§ 5100, 5104.) That right exists as long as the support order remains enforceable, a period that is not affected by the child having reached majority. (§ 4503; Civ. Code, former § 4708.) It cannot have been the intent of the Legislature that, by invoking the aid of the court to enforce a support obligation, the obligee may be denied a right that could be attained without resort to the court if only the obligor had readily available assets.
As a result of the majority holding, a contemptuous scofflaw who simply disregards a court order to pay support is now in a better position than the parent who seeks judicial relief from the support obligation, and a parent who must use the court process to enforce payment of arrearages is worse off than one who can simply execute on the assets of the debtor. I cannot join an opinion which demonstrates such cavalier disregard for valid judgments and statutes.
II
RURESA Considerations
In addition to its disregard for the statutory limitation on a court’s power to relieve a parent from the obligation to pay accrued arrearages, the majority ignores the limited scope of a RURESA enforcement proceeding.
This action was brought under the procedures made available by RURESA to persons owed support. The real issue in this case is not, [694]therefore, whether the court may or should recognize concealment of a child as a defense to a parent’s support obligation, but whether that defense may be raised in a RURESA action.
The majority concludes that questions related to visitation and custody may be litigated in a proceeding initiated under former section 1694 of the Code of Civil Procedure (see now § 4845), but that statute is part of a uniform act which does not permit those questions to be raised regardless of whether there has been “active” or, for that matter, passive concealment of a child. Section 4845 is a RURESA provision, and is part of the uniform act as adopted in California. (§ 4820 et seq.; Code Civ. Proc., former § 1670 et seq.)
The proposed holding is contrary to the view of the overwhelming majority of courts in states that have adopted RURESA that custody and visitation issues may not be raised in a proceeding to enforce payment of arrearages. (See, e.g., Barnes v. State ex rel. State of Va. (Ala.Civ.App. 1990) 558 So.2d 948; Ibach v. Ibach (1979) 123 Ariz. 507 [600 P.2d 1370]; Kline v. Kline (1976) 260 Ark. 550 [542 S.W.2d 499]; People ex rel. Van Meveren v. District Court in and for Larimer County (Colo. 1982) 638 P.2d 1371; County of Clearwater, Minnesota v. Petrash (1979) 198 Colo. 231 [598 P.2d 138]; State ex rel. Rock v. Rock. (Fla.Dist.Ct.App. 1983) 429 So.2d 1351; Vecellio v. Vecellio (Fla.Dist.Ct.App. 1975) 313 So.2d 61; Rathmell v. Gardner (1982) 105 Ill.App.3d 986 [61 Ill.Dec. 559, 434 N.E.2d 1156]; People ex rel. Argo v. Henderson (1981) 97 Ill.App.3d 425 [422 N.E.2d 1005]; In re Marriage of Truax (Ind.Ct.App. 1988) 522 N.E.2d 402; Beneventi v. Beneventi (Iowa 1971) 185 N.W.2d 219; Patterson v. Patterson (1978) 2 Kan.App.2d 447 [581 P.2d 824]; Brown v. Turnbloom (1979) 89 Mich.App. 162 [280 N.W.2d 473]; State ex rel. Southwell v. Chamberland (Minn. 1985) 361 N.W.2d 814; England v. England (Minn. 1983) 337 N.W.2d 681; State ex rel. Dewyea v. Knapp (1984) 208 Mont. 19 [674 P.2d 1104];4 Contra Costa County ex rel. Petersen v. Petersen (1990) 234 Neb. 418 [451 N.W.2d 390]; Monmouth County v. Lohman (1989) 229 N.J.Super. 485 [551 A.2d 1051]; Cahn v. Cahn (1982) 117 Misc.2d 1054 [459 N.Y.S.2d 657]; Pifer v. Pifer (1976) 31 N.C.App. 486 [229 S.E.2d 700]; Brown v. Brown (1984) 16 Ohio App.3d 26 [474 N.E.2d 613]; San Diego County v. Elavsky (1979) 58 Ohio St.2d 81 [12 Ohio Op.3d, 388 N.E.2d 1229]; State ex rel. State of Wash., Dept. of Social and Health Services v. Bozarth (1986) 80 Ore.App. [695397] [722 P.2d 48]; Myers v. Young (1981) 285 Pa.Super. 254 [427 A.2d 209]; Kramer v. Kelly (1979) 265 Pa.Super. 58 [401 A.2d 799]; Hoover v. Hoover (1978) 271 S.C. 177 [246 S.E.2d 179]; Todd v. Pochop (S.D. 1985) 365 N.W.2d 559; Cuccia v. Cuccia (Tenn.Ct.App. 1989) 773 S.W.2d 928; Charlesworth v. State of California (Utah Ct.App. 1990) 793 P.2d 411; Johns v. Johns (1988) 5 Va.App. 494 [364 S.E.2d 775]; State ex rel. Hubbard v. Hubbard (1983) 110 Wis.2d 683 [329 N.W.2d 202].5
The courts in our sister states are firm in enforcing this rule, and in carrying out the intent of RURESA. “As we held in State of Colorado ex rel. McDonnell v. McCutcheon, 337 N.W.2d 645 (Minn.1983), under [the statute] deprivation of custody or visitation is not a proper factor to consider in determining or enforcing interstate support obligations.” (England v. England, supra, 337 N.W.2d 681, 684.) “A defendant in a URESA action must raise visitation and custody matters in a separate proceeding in the state of divorce." (Todd v. Pochop, supra, 365 N.W.2d 559, 560.) “In the face of this legislative mandate, our courts have consistently ruled that the duty of support owed to children in a RURESA proceeding is not affected by interference with visitation rights. [Citations.] In the seminal case of Daly v. Daly [(1956) 21 N.J. 599, 123 A.2d 3], the Supreme Court held that the dereliction of the custodial parent did not abrogate the noncustodial parent’s duty of support.” (Monmouth County v. Lohman, supra, 551 A.2d 1051, 1053.)
Notwithstanding this well-established rule, and some 20 years after California adopted this provision of RURESA and thereby joined in a nationwide network of uniform procedure by which to enforce support orders, the majority suddenly finds in the legislation an exception to the statutory obligation of California courts to comply with an otherwise uniform law. In their eagerness to condemn parents who have, allegedly, denied the noncustodial parent visitation and custody rights, the majority appears to have lost sight of the goals of RURESA. The intent of the uniform act is that an enforcement proceeding will be a summary, expeditious proceeding at which the plaintiff need not litigate, and the court need not adjudicate, claims related to custody and visitation. (Johns v. Johns, supra, 364 S.E.2d 775; Barnes v. State ex rel. State of Va., supra, 558 So.2d 948.) “The very purpose of the URESA requires that it be procedurally and substantively streamlined. Interstate enforcement of support obligations will be impaired if matters of [696]custody, visitation, or a custodial parent’s contempt are considered by the responding court. The introduction of such collateral issues will burden the efficiency of the URESA mechanism. Moreover, permitting the resolution of other family matters in a URESA proceeding may deter persons from invoking the URESA.” (Hubbard v. Hubbard, supra, 329 N.W.2d 202, 205.)
“The purpose of RURESA is to create an economical and expedient means of enforcing support orders for parties located in different states.” (Johns v. Johns, supra, 364 S.E.2d 775, 776.)
“[N]o issues other than support may be considered in a URESA action. . . . [M]ost jurisdictions hold that visitation interference is not a defense in a URESA action [citations] because courts lack subject matter jurisdiction under URESA to terminate or modify child support due to interference with visitation. In re Marriage of Truax, 522 N.E.2d 402, 405 (Ind.Ct.App.1988). URESA therefore limits the court’s jurisdiction to ‘the single issue of enforcement of support.’ Id.
“The rationale for the limited subject matter jurisdiction is the need for a streamlined mechanism to enforce support obligations without consideration of other issues which would cripple those enforcement efforts. Id.” (Charlesworth v. State of California, supra, 793 P.2d 411, 413, italics added.)
“URESA makes no mention of visitation matters. Its scope is expressly limited to support. The act contemplates ex parte proceedings where only duties of support are adjudicated. It does not provide for adversary proceedings where other matters are to be decided. ...[][] Since the Michigan statute contains no provision suggesting that an adversary proceeding was contemplated by the Legislature, we are convinced that a streamlined process focusing solely on the issue of support was intended. The lack of due process protections for the absent custodial parent compels this conclusion.” (Brown v. Turnbloom, supra, 280 N.W.2d 473, 475.) “The purpose of the URESA is to improve and extend by reciprocal legislation the enforcement of duties of support. K.S.A. 23-451.The goal sought by this legislation is to provide a prompt, expeditious way of enforcing the duty to support minor children without getting the parties involved in other complex, collateral issues. The act specifically declares that the remedies therein provided are in addition to and not in substitution for any other remedies. [Citations.] Nothing in the act allows the adjudication of child custody or visitation privileges or other matters commonly determined in domestic relation cases.” (Patterson v. Patterson, supra, 581 P.2d 824, 825.)
The unfortunate result of the majority holding is that any parent seeking to enforce a support order after the child reaches majority may instead have to [697]litigate, and the court will have to rule on, claims by nonsupporting parents that the plaintiff “actively” concealed the child. In addition, assuming they will do so at all, prosecutors in the responding state, on whom the obligation to represent the plaintiff in RURESA actions is imposed (see Code Civ. Proc., former § 1680; Fam. Code, § 4831; RURESA § 18), will be burdened with litigating an issue RURESA did not intend to impose on them.
The majority does not resolve the right to offer an “active concealment” defense when enforcement of a support order is sought during the minority of the child, and do not consider the impact of its holding on the rights of public agencies who have provided support to enforce assignments of the custodial parent’s support rights. This temporarily avoids more difficult questions,6 but the failure to face these issues adds uncertainty to what had been until now a relatively clear statutory and, in California as well as other jurisdictions, a vested right.7 It also throws into confusion the rights of parents in other states who seek to utilize the provisions of RURESA to enforce support orders in California courts. Must they now travel to California to answer noncustodial parents’ claims that the child was “actively” concealed?8 Only time will answer this question or tell how the courts of other jurisdictions will treat enforcement actions brought in those courts by [698]residents of California.9 If, as is probable, those courts refuse to entertain the “active concealment” defense, California obligees will fare better in the courts of other jurisdictions than in California.
This cannot have been the intent of the Legislature when it adopted RURESA. In Code of Civil Procedure former section 1694 (now recodified as Fam. Code, § 4845), the Legislature enacted verbatim the provision in section 23 of RURESA which specifies: “The determination or enforcement of a duty of support owed to one obligee is unaffected by any interference by another obligee with rights of custody or visitation granted by a court.” (Italics added.) California adopted the Uniform Reciprocal Enforcement of Support Act in 1953 (Stats. 1953, ch. 1290, § 2, p. 2843), and adopted Code of Civil Procedure former section 1694 as part of the 1968 revised act in 1970. (Stats. 1970, ch. 1126, § 31, p. 2002.) The rule which the majority abrogate today was among those created to “cure defects” and “plug loopholes” in the original uniform act by establishing guidelines for the conduct of the trial in cases in which there had been interference with visitation rights. (See 9B West’s U. Laws Ann. (1987) RURESA, prefatory note, p. 382; see also Comment, The Uniform Reciprocal Enforcement of Support Act (1961) 13 Stan.L.Rev. 901, 915-916 [“Since most support judgments are modifiable, to allow for change in the circumstances of the parties, they are enforceable only under the doctrine of comity, and are vulnerable to the vagaries of public policy defenses.”].) The Legislature, in adopting section 23 of RURESA, was presumably aware of the purpose for which this part of former section 1694 was added to section 23 in the 1968 revision of the uniform act. By prohibiting consideration of visitation and custody issues in a RURESA enforcement proceeding, the uniform act clearly intends that “vagaries of public policy” such as those which the majority seek to import into the California statute will not affect those proceedings. Our Legislature enacted that statutory RURESA limitation which the majority now abrogate.
No other jurisdiction applying section 23 of RURESA recognizes the distinction suggested by the majority between “active concealment” and other types of “interference” with visitation and custody rights.10 This is undoubtedly because concealment of the child, whether “active” or otherwise, is so clearly interference with visitation and custody. The statute is [699]directed to “any” interference, not simply interference which does not involve “active concealment.” The focus should not be on the degree of interference, but instead on whether any issue related to custody and visitation may be raised in a proceeding to enforce payment of arrearages. As a result of today’s decision, the issue may be raised in any case, leaving to the decisionmaker the determination of whether the defendant’s evidence is sufficient to establish “active concealment.” A proceeding intended to be summary and expeditious will thereby be transformed into a battle over lost custody and/or visitation rights. The availability of the defense will encourage and reward parents who fail to comply with court orders for support, and, many years later when enforcement is attempted but evidence may be lost and memories dimmed, claim that the plaintiff “actively concealed” the child.
This is contrary to the purpose of the law and the intent of the Legislature. It will burden enforcement courts and prosecutors with hearings on issues that should be raised in the court having jurisdiction over the initial support or custody and visitation proceedings.
The Arizona Court of Appeal recognized that a parent’s exclusive remedies for violation of visitation and custody rights lies in the court which made the custody and support orders where the parent may seek a contempt citation or modification of the support order. In State ex rel. Arvayo v. Guererro (1974) 21 Ariz.App. 173 [517 P.2d 526], the court affirmed an order dismissing a Uniform Reciprocal Enforcement of Support Act action to enforce support. The court emphasized that the duty of support is not affected by interference with custody and visitation rights, and noted that the obligee had made consistent efforts to enforce his rights through the judicial process before terminating support payments. Nonetheless, that was not the reason the order for dismissal was affirmed. Rather, it was affirmed because the court having jurisdiction over the support action had modified the decree by terminating the support obligation until the RURESA plaintiff agreed to honor visitation rights. To the same effect is People ex rel. Winger v. Young 1979) 78 Ill.App.3d 512 [33 Ill.Dec. 920, 397 N.E.2d 253], a case in which, allegedly, the custodial parent had moved to another state and kept the child’s whereabouts secret. The court rejected the proffered defense stating: “The proper remedy for the violation of visitation rights is a petition for a rule to show cause why the non-complying party should not be held in contempt. The duty to permit visitation is completely independent of the duty to make support payments." (Id. at p. 254; see also State ex rel. Dewyea v. Knapp, supra, 674 P.2d 1104, 1106 [“If respondent desires to enforce his [700]visitation rights, modify the support obligations or obtain custody of his children, then he must seek a forum that holds the proper jurisdiction to take evidence and rule on these matters.”]; State ex rel. Southwell v. Chamberland, supra, 361 N.W.2d 814, 817 [“The law has given the other parent a remedy to go into court for an amended order.”].)
I believe that properly applied rules of statutory construction, respect for the rule of law, and the importance of maintaining family ties bar creation of an estoppel to seek payment of arrearages in a RURESA action. A parent who does not use child locator services and seek judicial sanction for termination of support payments should not be permitted to claim years after discontinuing support payments that the child had been concealed. I cannot join in what is so clearly a departure from settled law—a decision which usurps the prerogatives of the Legislature, undermines otherwise uniform procedures for reciprocal enforcement of support obligations, and, by making available an “active concealment” defense, may encourage supporting parents to sever, rather than attempt to strengthen, their parental bonds.
I would reverse the judgment of the Court of Appeal.
Further statutory references are to the Family Code unless otherwise indicated.
It is not clear to me how a parent who is unable to locate a child is able to determine that there has been “active concealment” or at which point concealment becomes or ceases to be “active.”
Section 4612: “An obligor-parent alleged to be in arrears may use any of the following grounds as a defense to the motion [for deposit of assets] or as a basis for filing a motion to stop a sale or use of assets under section 4631:
“(a) Child support payments are not in arrears.
“(b) Laches.
“(c) There has been a change in the custody of the children.
“(d) There is a pending motion for reduction in support due to a reduction in income.
“(e) Illness or disability.
“(f) Unemployment.
“(g) Serious adverse impact on the immediate family of the obligor-parent residing with the obligor-parent that outweighs the impact of denial of the motion or stopping the sale on obligee.
“(h) Serious impairment of the ability of the obligor-parent to generate income.
“(i) Other emergency conditions.”
Montana recognized a visitation-related equitable defense in a RURESA action in State ex rel. Blakeslee v. Horton (1986) 222 Mont. 351 [722 P.2d 1148], That case is easily distinguishable, however, on the basis that the defense was an agreement between the parents, made 14 years before the RURESA action and complied with by both parties, in which wife agreed not to enforce the support order and husband agreed not to attempt to enforce his visitation rights.
If the court in which the RURESA proceeding is pending is the court with continuing jurisdiction over the dissolution and/or custody proceedings, an interference with custody or visitation rights may be raised if notice is given that the issue is to be litigated. This is permitted only because jurisdiction exists independent of RURESA, however. (See Watkins v. Springsteen (1980) 102 Mich.App. 451 [301 N.W.2d 892, 895].)
The question of assigned rights is particularly important since, as a condition of receiving federal aid for the Aid to Families with Dependent Children Program, a state must require the custodial parent “to assign the State any rights to support from any other person such applicant may have (i) in his own behalf or in behalf of any other family member for whom the applicant is applying for or receiving aid, and (ii) which have accrued at the time such assignment is executed; . . . .” (42 U.S.C. § 602(a)(26)(A).)
If the exception to enforcement rights created by the majority extends to the assignee, as would be the case in most assignments, since an assignor may not assign any greater rights than he or she has, the impact of the holding proposed by the majority could be to take California out of compliance with the Social Security Act and endanger grant in aid funds now being provided by the federal government.
Additionally, if a county furnishes support for a child, “the county has the same right as the child to secure reimbursement . . . .” (§ 4002, subd. (b).) The majority opinion does not address the impact of its “active concealment” based estoppel on the right of the county to collect arrearages.
See Dorsey v. Dorsey, supra, 408 N.E.2d 502, 504: “Initially, we note that child support arrearages constitute a vested right under Illinois law and are specifically enforceable under URESA. [Citations.] Also, even after a child reaches majority, the custodian does not lose her right to recover arrearages which accrued at the time of the child’s minority.” Accord, Dept, of Health & Rehab. Sen. v. Bachtal (Fla.Dist.Ct.App. 1988) 517 So.2d 787, 788; Johnson v. State (1983) 167 Ga.App. 508 [306 S.E.2d 756]; Ackerman v. Yanoscik (Tex.Ct.App. 1980) 601 S.W.2d 72.
Section 4834 permits submission of evidence by deposition or personal appearance. Deposition testimony by the obligee is manifestly inadequate if the obligor offers the “active concealment” defense in person unless the proceedings are continued after the obligor’s testimony to permit the obligee to respond in a deposition.
See Brown v. Turnbloom, supra, 280 N.W.2d 473, 474: “The act does not contemplate that the custodial parent come to the responding state to defend against claims arising from other domestic relations matters. Aggrieved noncustodial parents should return to the state of divorce to adjudicate other matters.”
Minnesota has expressly rejected the distinction. “However sympathetic one may be to Chamberland’s difficult position, the statutes do not appear flexible enough to accommodate his appeal. Although Southwell did not inform Chamberland of her location, and in fact may have purposely concealed her location, so that Chamberland did not know where to send the payments, this ‘wrongful conduct’ does not take this action out of the purview of the statute [699]nor the precedence of case law.” (State ex rel. Southwell v. Chamberland, supra, 361 N.W.2d 814, 817.)