California

Family Law

Family Law

Rule 5.372 – Transfer of title IV-D cases between tribal court and state court

(a) Purpose

This rule is intended to define the procedure for transfer of title IV-D child support cases between a California superior court and a tribal court.

Subd (a) amended effective January 1, 2018.

(b) Definitions

(1) “Tribal court” means any tribal court of a federally recognized Indian tribe located in California that is receiving funding from the federal government to operate a child support program under title IV-D of the Social Security Act ( 42 U.S.C. ยง 654 et seq.).
(2) “Superior court” means a superior court of the state of California.
(3) “Title IV-D child support cases” include all cases where title IV-D services are being provided whether the case originates from the local child support agency’s filing of a summons and complaint or later becomes a title IV-D case when the local child support agency registers a child support order or intervenes in a child support action by filing a change of payee.
(c) Disclosure of related case

A party must disclose in superior court whether there is any related action in tribal court in the first pleading, in an attached affidavit, or under oath. A party’s disclosure of a related action must include the names and addresses of the parties to the action, the name and address of the tribal court where the action is filed, the case number of the action, and the name of judge assigned to the action, if known.

(d) Notice of intent to transfer case

Before filing a motion for case transfer of a child support matter from a superior court to a tribal court, the party requesting the transfer, the state title IV-D agency, or the tribal IV-D agency must provide the parties with notice of their right to object to the case transfer and the procedures to make such an objection.

(e) Determination of concurrent jurisdiction by a superior court

(1) The superior court may, on its own motion or on the motion of any party and after notice to the parties of their right to object, transfer a child support and custody provision of an action in which the state is providing services under Family Code section 17400 to a tribal court, as defined in (a). This provision applies to both prejudgment and postjudgment cases.
(2) The motion for transfer to a tribal court must include the following information:

(A) Whether the child is a tribal member or eligible for tribal membership;
(B) Whether one or both of the child’s parents are tribal members or eligible for tribal membership;
(C) Whether one or both of the child’s parents live on tribal lands or in tribal housing, work for the tribe, or receive tribal benefits or services;
(D) Whether there are other children of the obligor subject to child support obligations;
(E) Any other factor supporting the child’s or parents’ connection to the tribe.
(3) When ruling on a motion to transfer, the superior court must first make a threshold determination that concurrent jurisdiction exists.Evidence to support this determination may include:

(A) Evidence contained within the motion for transfer;
(B) Evidence agreed to by stipulation of the parties; and
(C) Other evidence submitted by the parties or by the tribe.

The court may request that the tribal child support agency or the tribal court submit information concerning the tribe’s jurisdiction.

(4) There is a presumption of concurrent jurisdiction if the child is a tribal member or eligible for tribal membership. If concurrent jurisdiction is found to exist, the transfer to tribal court will occur unless a party has objected within 20 days after service of notice of the right to object referenced in subdivision (e)(1) above. On the filing of a timely objection to the transfer, the superior court must conduct a hearing on the record considering all the relevant factors set forth in (f). The objecting party has the burden of proof to establish good cause not to transfer to tribal court.

Subd (e) amended effective January 1, 2018.

(f) Evidentiary considerations

(1) In making a determination on the motion for case transfer, the superior court must consider:

(A) The identities of the parties;
(B) The convenience of the parties and witnesses;
(C) The remedy available in the superior court or tribal court; and
(D) Any other factors deemed necessary by the superior court.
(2) In making a determination on the motion for case transfer, the superior court may not consider the perceived adequacy of tribal justice systems.
(3) The superior court may, after notice to all parties, attempt to resolve any procedural issues by contacting the tribal court concerning a motion to transfer. The superior court must allow the parties to participate in, and must prepare a record of, any communication made with the tribal court judge.

Subd (f) amended effective January 1, 2018.

(g)Order on request to transfer

If The superior court denies the request for transfer, the court must state on the record the basis for denying the request. If the superior court grants the request for transfer, it must issue a final order on the request to transfer including a determination of whether concurrent jurisdiction exists.

Subd (g) amended effective January 1, 2018.

(h)Proceedings after order granting transfer

Once the superior court has granted the application to transfer and has received confirmation that the tribal court has accepted jurisdiction, the superior court clerk must deliver a copy of the entire file, including all pleadings and orders, to the clerk of the tribal court within 20 days of confirmation that the tribal court has accepted jurisdiction. With the exception of a filing by a tribal court as described by subdivision (i) of this rule, the superior court may not accept any further filings in the state court action in relation to the issues of child support and custody that were transferred to the tribal court.

Subd (h) amended effective January 1, 2018.

(i)Transfer of proceedings from tribal court

(1) If a tribal court determines that it is not in the best interest of the child or the parties for the tribal court to retain jurisdiction of a child support case, the tribe may, upon noticed motion to all parties and the state child support agency, file a motion with the superior court to transfer the case to the jurisdiction of the superior court along with copies of the tribal court’s order transferring jurisdiction and the entire file.
(2) The superior court must notify the tribal court upon receipt of the materials and the date scheduled for the hearing of the motion to transfer.
(3) If the superior court has concurrent jurisdiction,it must not reject the case.
(4) No filing fee may be charged for the transfer of a title IV-D child support case from a tribal court.

Subd (i) adopted effective January 1, 2018.

Cal. R. Ct. 5.372

Rule 5.372 Amended effective January 1, 2018; Adopted effective January 1, 2014.

Advisory Committee Comment

This rule applies only to title IV-D child support cases. In the normal course, transfers from tribal court are initiated by the local child support agencies. Under Government Code sections 6103.9 and 70672, local child support agencies are exempt from payment of filing fees. The rule makes it clear that this exemption also applies when an eligible case is being transferred from a tribal court.