Bianka M. v. Super. Ct.

Filed 3/2/16
CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION THREE

BIANKA M., a Minor, etc., B267454

Petitioner, (Los Angeles County
Super. Ct. No. BF052072)
v.

THE SUPERIOR COURT OF
LOS ANGELES COUNTY,

Respondent;

GLADYS M.,

Real Party in Interest.

ORIGINAL PROCEEDINGS in mandate. Holly J. Fujie, Judge. Petition
denied.
Irell & Manella, Joshua C. Lee, Stephen A. Rossi and Meiqiang Cui;
Public Counsel and Nickole G. Miller for Petitioner, Bianka M.
No appearance for Respondent.
Gibson, Dunn & Crutcher, LLP, Julian W. Poon, Eric A. Westlund,
Nathaniel P. Johnson, Victor Lee, Lali Madduri, Jennifer Rho and Sarah G. Reisman,
as Amicus Curiae on behalf of the Immigrant Legal Resource Center, the Los Angeles
Center for Law and Justice, and the Immigrant Defenders Law Center.
_______________________________________
 INTRODUCTION
Petitioner Bianka M.1 is a 13-year old girl from Honduras who entered the
United States without documentation in 2013. After a brief detention by federal
immigration authorities, Bianka resettled in Los Angeles where she now lives with her
mother. Bianka’s mother and her alleged biological father, Jorge, never married. Jorge
currently resides in Honduras.
Bianka hopes to avoid deportation by obtaining “special immigrant juvenile”
(SIJ) status—a classification created by Congress to provide special immigration
protection to undocumented, unaccompanied children entering the United States who
have been the victims of parental abuse, neglect, abandonment or some similar
circumstance. (8 U.S.C. § 1101(a)(27)(J) (SIJ statute).) When applying for SIJ status,
a child must attach an order from a state court containing three specific factual findings:
(1) the child is in the custody of a court appointed agency, guardian or other individual;
(2) the child cannot reunify with one or both parents due to abuse, neglect, abandonment
or other similar basis under state law; and (3) it is not in the child’s best interest to
return to her home country or her parents’ home country. (Id.; 8 C.F.R. § 204.11(d)(2)
(July 6, 2009).) In California, any trial court called upon to adjudicate issues of child
custody or welfare, including the probate, family and juvenile divisions of the superior
courts, has jurisdiction to make the findings necessary to allow the child to apply for SIJ
status. (Code Civ. Proc., § 155, subd. (a).)
In many cases, a child who seeks SIJ status will be involved in proceedings in the
juvenile court (for foster home placement) or the probate court (for the appointment of
a legal guardian). However, where the child has reunited with one parent in the
United States, it is more likely the child will be the subject of a custody proceeding in
the family court. In this case, Bianka initiated a parentage action under the Uniform

1
Because this writ proceeding arises out of a parentage action and all court filings
are deemed confidential to protect the privacy of the child, we will refer to the minor
and her parents by their first names.

2
Parentage Act (Fam. Code, § 7600 et seq.) naming her mother as the respondent.
Although Bianka’s mother did not file a response to the petition, it appears maternity is
uncontested. Bianka also filed a pretrial request for order asking the court to place her
in the sole legal and physical custody of her mother and to make the additional findings
necessary to allow her to petition for SIJ status, namely that she cannot reunify with her
father because he abandoned her and it is not in her best interest to return to Honduras.
The court declined to make the requested findings primarily because it concluded
Bianka’s request for an award of sole custody to her mother in an action under the UPA
necessarily implicated paternity and parental rights (if any), which in turn made Jorge
an indispensible party to the parentage action.
The trial court was particularly concerned, as we are, about the unusual
procedural posture and the nonadversarial nature of this case. As we will explain, the
UPA is the exclusive means by which unmarried adults may resolve disputes relating to
rights and obligations arising out of the parent-child relationship, including child
custody, visitation and support. In an action between natural, alleged and/or presumed
parents, the parentage of each party to the action is squarely at issue and is adjudicated
before issues of custody, visitation and support are considered. Here, because Bianka
only named her mother as respondent, she contends only her mother’s parentage is at
issue in this action. However, Bianka does not simply seek to establish a parent-child
relationship with her mother. She also asserts her father, Jorge, abandoned her at birth,
physically abused her mother, and on that basis seeks an order from the court placing
her in her mother’s sole legal and physical custody, without visitation rights for Jorge.
Further, Bianka asked the court to issue an order explicitly finding that her father, who
she contends is Jorge, abandoned her. By requesting these orders, Bianka necessitates
consideration of Jorge’s parentage and parental rights.
While we are sympathetic to Bianka’s plight, we cannot endorse the approach
she pursues here. The UPA simply does not provide a mechanism for the court to issue
sole legal and physical custody orders in a vacuum, nor does it authorize a court to
make factual findings concerning parental abuse, neglect or abandonment in the absence

3
of a finding of parentage. Further, were we to follow the course suggested by Bianka in
this case, we would erode the substantial protections afforded to parents involved in
international custody disputes under state, federal and international law.
We conclude that under the circumstances present here, where Bianka’s father’s
identity and whereabouts are known, the court did not abuse its discretion by requiring
Bianka to join Jorge to the pending action. To the extent Bianka continues to seek
a custody order and/or SIJ findings in a parentage action based on Jorge’s abuse, neglect
or abandonment, she should amend her petition to name Jorge as a respondent and state
all the pertinent facts relating to Jorge’s paternity and his alleged abuse, neglect or
abandonment; she should then properly serve him with a summons and a copy of the
petition. Should Jorge fail to respond—the most likely outcome if, as Bianka alleges,
he has no interest in her welfare—Bianka may then attempt to proceed by way of
default and obtain the relief she seeks. If obtaining personal jurisdiction over Jorge is
problematic, Bianka may attempt to obtain the relief she seeks by entering into
a stipulated judgment of paternity with her father.
FACTUAL BACKGROUND AND PROCEDURE
A. Bianka’s Background
Bianka, now 13 years old, is a native of Honduras. Like an increasing number of
minors fleeing rampant violence and poverty in their home countries, Bianka arrived in
the United States in late 2013, alone and undocumented. After a brief detention by the
Department of Homeland Security, Bianka reunited with her mother, Gladys, who was
already living in the United States. Bianka is currently enrolled in school and by all
accounts is residing happily with her mother in Los Angeles.
Gladys is also a native of Honduras. She came to the United States in 2005,
leaving Bianka (who would have been 2 or 3 years old at the time) in the care of an
older daughter. After leaving Honduras, Gladys kept in close contact with Bianka by
telephone and frequently sent money to her older daughter for Bianka’s care.
Gladys believes Jorge is Bianka’s father. Gladys and Jorge never married, but
were in a relationship for about 15 years and had four children together, including

4
Bianka. Gladys reported that Jorge left her while she was pregnant with Bianka, and
never contacted Bianka or provided any financial support for her. Jorge apparently still
resides in Honduras.
B. Request For SIJ findings
Bianka is the subject of removal (deportation) proceedings and apparently
intends to file an application for SIJ status. In order to obtain a state court order
containing the factual findings required under federal law, Bianka and Gladys turned to
the family law division of the superior court.
1. Gladys’s parentage action
Initially, Gladys filed a petition under the Uniform Parentage Act (UPA) naming
Jorge as the respondent. Gladys filed a proof of service indicating personal service of
the petition on Jorge. Jorge never responded; however, no default was ever entered
against him. Apparently, Gladys later dismissed that petition without prejudice because
she believed the court lacked personal jurisdiction over Jorge and would therefore be
unwilling to enter a default judgment of paternity against him.2
2. Bianka’s parentage action
On December 12, 2014, Bianka filed a petition under the UPA naming Gladys as
the respondent.3 The petition alleges Gladys is Bianka’s mother and requests a court
order awarding sole legal and physical custody to Gladys. Both Bianka and Gladys
submitted declarations in support of the petition. As the basis of her custody request,
Bianka asserted her biological father, Jorge, abandoned her physically, emotionally, and
financially before her birth. Bianka asked the court to find that her father abandoned

2
We will refer to this parentage action between Gladys and Jorge as the dismissed
action.
3
Unless otherwise noted, all further references to a parentage action are to the
second action in which Bianka is the petitioner and her mother, Gladys, is the
respondent.

5
her within the meaning of Family Code section 7822, subdivision (a)(3),4 and place her
in her mother’s sole custody. In addition, Bianka asserted Jorge had beaten her mother
while she was pregnant. Bianka cited Jorge’s domestic violence as another factor
relevant to the court’s custody determination and argued his conduct constituted abuse
within the meaning of the Family Code. Bianka went on to argue that Jorge’s
abandonment also provided a factual basis for an order containing SIJ findings. Both
Bianka and Gladys submitted declarations in support of the petition, in which they
recounted Jorge’s abuse and abandonment. Bianka’s counsel personally served Gladys
with a summons and a copy of the petition. Gladys never filed a response to the
petition, and her default has not been entered. Jorge was not named or otherwise
identified in the petition and there is no evidence in the record indicating Jorge was
served or provided with a copy of the petition at the time of filing.
As required by section 7635, Bianka requested the appointment of a guardian
ad litem to assist her in the parentage action. Bianka filed proofs of service indicating
her counsel sent copies of the guardian ad litem application to both Gladys and Jorge
via regular U.S. mail. Bianka’s counsel submitted a declaration indicating she notified
Jorge by telephone of the application to appoint a guardian ad litem.
On April 23, 2015, Bianka filed a pretrial request for order (RFO), seeking
a custody order and an order containing SIJ findings, both predicated on her
representation that her father abandoned her before she was born and physically abused
her mother during her pregnancy with Bianka. The RFO indicated a hearing would take
place on July 14, 2015.
On June 3, 2015, Bianka filed a proof of service indicating her counsel sent Jorge
conformed copies of the petition and RFO, together with the supporting documents,
via regular U.S. mail. Bianka’s counsel advised Jorge by telephone of the hearing on
the RFO. On June 24, 2015, Bianka filed another proof of service, this time
representing that Stefany Fabiola Montoya Martinez personally served Jorge with

4
All further undesignated code section references are to the Family Code.

6
copies of the petition, the RFO and the supporting documents. There is no indication in
the record these legal documents were translated from English into Spanish. The court
held a hearing on July 14, 2015, at which Bianka and Gladys both testified, and took the
matter under submission.
C. Trial Court’s Order Denying Request For Sole Custody
and SIJ Findings; Bianka’s Writ Petition

On August 24, 2015, the court issued a 15-page order summarizing the basis of
its decision to deny Bianka’s request for orders placing her in her mother’s sole legal
and physical custody and making SIJ findings under Code of Civil Procedure
section 155. The court noted the unusual procedural posture of the case and expressed
concern that Bianka had not named her alleged biological father as a party in the
parentage action and, further, the court had no basis to assert personal jurisdiction over
him. Although Bianka’s mother stated in a sworn declaration that Jorge is the only man
who could be Bianka’s father, the court observed none of the evidence before the court
contained an acknowledgment of paternity by Jorge. The birth certificate produced by
Gladys listed Jorge as Bianka’s father but was not signed by Jorge, and Jorge apparently
did not provide a voluntary declaration of paternity. The court concluded Bianka’s
request for an order placing her in her mother’s sole custody required it to determine
Jorge’s paternity.
Further, the court found an award of sole legal and physical custody to Gladys
would implicate Jorge’s fundamental rights, namely the right to determine how a child
is raised. In addition, the court noted a determination of parentage and custody could
form the basis of an order for child support. The court declined to “speculate that
[Jorge] has no interest in these issues, particularly where there is no evidence of proper
service. [Jorge] has the right to participate as a party in a proceeding that seeks to
adjudicate his rights in this regard.” The court observed Jorge’s right to participate in
the proceeding was especially important given the serious nature of the allegations
(abandonment, neglect, domestic violence) put forward by Bianka. Accordingly, the
court found Jorge’s joinder to the parentage action was required. The court denied the

7
request for orders regarding custody and making SIJ findings, without prejudice to
further application after Jorge had been properly joined, personal jurisdiction issues had
been resolved, and a determination of parentage had been made.
Bianka initiated this original proceeding in October 2015. On January 26, 2016,
Bianka’s counsel informed this court that Bianka’s removal proceeding has been
administratively closed. However, counsel also advised administrative closure does not
finally resolve a case, but rather temporarily removes it from the immigration court’s
calendar. Because it appears Bianka’s removal proceeding may be reactivated at any
time, her case is not moot.
ISSUES PRESENTED
In this writ proceeding, we are presented with the following issues: In
a parentage action between a child and her mother, in which the child seeks an order
awarding sole legal and physical custody to her mother predicated upon the allegation
that her father abandoned her, may the court make the requested custody order without
first determining parentage and presumed parent status (if any) with respect to the
father? Where the father’s identity and whereabouts are known, is it an abuse of
discretion for the trial court to require father’s joinder as an indispensible party to the
parentage action?
We conclude that a request for sole legal and physical custody in a parentage
action necessarily requires a court to consider the parentage of both parents. Where the
identity and whereabouts of the alleged father are known, it is not an abuse of the
court’s discretion to require his joinder to the parentage action. Further, joinder permits
a parent residing outside California to appear specially to litigate custody issues in the
proceeding, an option wholly consistent with applicable due process requirements. We
therefore deny the petition for writ of mandate.
DISCUSSION
1. Standard of Review
The applicable standard of review is well established. We independently review
questions of law, including the construction and application of a statute. (See, e.g.,

8
Charisma R. v. Kristina S. (2009) 175 Cal.App.4th 361, 370 [interpreting provision of
the UPA], disapproved on another point by Reid v. Google, Inc. (2010) 50 Cal.4th 512,
532.) We review a trial court’s factual findings for substantial evidence. (Id. at
pp. 368-369.)
Further, “ ‘[t]he determination of whether a party is necessary or indispensable is
one in which the court “weighs ‘factors of practical realities and other considerations.’ ”
[Citation.] In view of that standard, we review the trial court’s ruling for abuse of
discretion. [Citation.]’ [Citations.]” (Dreamweaver Andalusians, LLC v. Prudential
Ins. Co. of America (2015) 234 Cal.App.4th 1168, 1173.)
2. Federal Law Regarding Special Immigrant Juvenile Status
In 1990, Congress enacted the SIJ statute to open a path for abused, neglected,
and abandoned undocumented minors to become lawful permanent residents.5
(In re Y.M. (2012) 207 Cal.App.4th 892, 910.) “ ‘SIJ status allows a juvenile immigrant
to remain in the United States and seek lawful permanent resident status if federal
authorities conclude that [certain] statutory conditions are met.’ [Citation.]” (Leslie H.

5
The SIJ statute, 8 U.S.C. § 1101(a)(27)(J), provides: “as used in this
chapter . . . [¶¶] [t]he term “special immigrant” means . . . [¶¶] an immigrant who is
present in the United States—(i) who has been declared dependent on a juvenile court
located in the United States or whom such a court has legally committed to, or placed
under the custody of, an agency or department of a State, or an individual or entity
appointed by a State or juvenile court located in the United States, and whose
reunification with 1 or both of the immigrant’s parents is not viable due to abuse,
neglect, abandonment, or a similar basis found under State law; [¶] (ii) for whom it has
been determined in administrative or judicial proceedings that it would not be in the
alien’s best interest to be returned to the alien’s or parent’s previous country of
nationality or country of last habitual residence; and [¶] (iii) in whose case the Secretary
of Homeland Security consents to the grant of special immigrant juvenile status, except
that—[¶] (I) no juvenile court has jurisdiction to determine the custody status or
placement of an alien in the custody of the Secretary of Health and Human Services
unless the Secretary of Health and Human Services specifically consents to such
jurisdiction; and [¶] (II) no natural parent or prior adoptive parent of any alien provided
special immigrant status under this subparagraph shall thereafter, by virtue of such
parentage, be accorded any right, privilege, or status under this chapter . . . . ”

9
v. Superior Court (2014) 224 Cal.App.4th 340, 344 (Leslie H.).) A minor who obtains
SIJ status may apply after five years to become a naturalized citizen. (Ibid.)
“ ‘While the federal government has exclusive jurisdiction with respect to
immigration [citations] . . . , state juvenile courts play an important and indispensable
role in the SIJ application process.’ [Citation.]” (Leslie H., supra, 224 Cal.App.4th at
p. 348, first omission in original.) “[F]ederal courts have long recognized that state
courts have jurisdiction over child welfare determinations, including matters pertaining
to undocumented minors, absent an express federal provision to the contrary. Federal
law imposes requirements on state dependency plans and recognizes ‘the institutional
competence of state courts as the appropriate forum for child welfare determinations
regarding abuse, neglect, or abandonment, and a child’s best interests.’ [Citations.]”
(In re Y.M., supra, 207 Cal.App.4th at p. 908.) Accordingly, federal regulations require
a child applying for SIJ status to obtain an order from a state court making several
factual findings as a predicate for SIJ eligibility. (8 C.F.R. § 204.11(d)(2) (July 6,
2009).)
Specifically, the child must obtain a state court order finding the child has been
declared a dependent of a juvenile court in accordance with state law or has been legally
committed to, or placed under the custody of, an agency or department of a state, or an
individual or entity appointed by a state or juvenile court located in the United States.
(8 U.S.C. § 1101(a)(27)(i).) In addition, the court must find reunification with one or
both of the immigrant’s parents is not viable due to abuse, neglect, abandonment, or
a similar basis found under state law. (8 U.S.C. § 1101(a)(27)(ii).) Finally, the state
court must also find it would not be in the child’s best interest to be returned to his or
her country, or the parents’ country, of nationality or last habitual residence.
(8 U.S.C. § 1101(a)(27)(iii).)6

6
The current federal regulation requires the order to state the child is eligible for
long term foster placement. (8 C.F.R. § 204.11(c)(4), (5) (July 6, 2009).) That portion
of the regulation is out of date, as it does not reflect the 2008 amendment to the SIJ

10
 Although the state court order is a necessary component of the child’s application
for SIJ status, the order does not guarantee or determine whether a particular child
qualifies for relief. Our courts recognize “[a] state court’s role in the SIJ process is not
to determine worthy candidates for citizenship, but simply to identify abused, neglected,
or abandoned alien children under its jurisdiction who cannot reunify with a parent or be
safely returned in their best interests to their home country.” (Leslie H., supra,
224 Cal.App.4th at p. 351.) It is the federal government, through the United States
Citizenship and Immigration Services (USCIS), which makes the determination to grant
(or deny) the child’s petition for adjustment of status. (Ibid.)
As a practical matter, however, our courts, as well as immigrant children seeking
our assistance, should bear in mind the factors considered by the USCIS when it
reviews a petition for SIJ status. In 1998, Congress modified the SIJ statute to require
the Attorney General’s express consent to the dependency order serving as the basis of
the SIJ petition. (H.R.Rep. No. 105-405, 1st Sess., pp. 22-23 (Nov. 13, 1997).)
According to the legislative history, Congress modified the SIJ statute “in order to limit
the beneficiaries of this provision to those juveniles for whom it was created, namely
abandoned, neglected, or abused children, by requiring the Attorney General to
determine that neither the dependency order nor the administrative or judicial
determination of the alien’s best interest was sought primarily for the purpose of
obtaining the status of an alien lawfully admitted for permanent residence, rather than
for the purpose of obtaining relief from abuse or neglect.” (H.R.Rep. No. 105-405,
1st Sess., p. 130 (Nov. 13, 1997).) Although Congress has since modified the SIJ
statute to require the consent of the Secretary of Homeland Security (rather than the
Attorney General) to the grant of SIJ status (rather than the underlying dependency
order), see 8 U.S.C. § 1101(a)(27)(J)(iii), the agency’s concern remains the same: “The

statute which eliminated the foster placement eligibility requirement and replaced it
with a requirement regarding parental reunification. (See Leslie H., supra,
224 Cal.App.4th at p. 349.)

11
consent determination by the Secretary, through the USCIS District Director, is an
acknowledgment that the request for SIJ classification is bona fide. This means that the
SIJ benefit was not ‘sought primarily for the purpose of obtaining the status of an alien
lawfully admitted for permanent residence, rather than for the purpose of obtaining
relief from abuse or neglect or abandonment.’ (See H.R.Rep. No. 105-405, at p. 130
(1997).) An approval of an SIJ petition itself shall be evidence of the Secretary’s
consent.” (U.S. Citizenship and Immigration Services, Memorandum (Mar. 24, 2009)
Trafficking Victims Protection Reauthorization Act of 2008: Special Immigrant
Juvenile Status Provisions, by Donald Neufeld & Pearl Chang, available at
https://www.uscis.gov/sites/default/files/USCIS/Laws/
Memoranda/Static_Files_Memoranda/2009/TVPRA_SIJ.pdf.) The proposed federal
rule designed to implement the 2008 amendments to the SIJ statute, if adopted, will
authorize the USCIS to “consider, among other permissible discretionary factors,
whether the alien has established, based on the evidence of record, that the State court
order was sought primarily to obtain relief from abuse, neglect, abandonment, or
a similar basis under State law and not primarily for the purpose of obtaining lawful
immigration status; and that the evidence otherwise demonstrates that there is
a bona fide basis for granting special immigrant juvenile status.” (76 Fed.Reg. 54985
(Sept. 6, 2011) [proposed 8 C.F.R. § 204.11 (c)(i)].)
It appears, therefore, Congress and the USCIS rely upon our state courts to issue
orders containing the findings required to support an SIJ petition in the context of
ongoing, bona fide proceedings relating to child welfare, rather than through specially
constructed proceedings designed mainly for the purpose of issuing orders containing
SIJ findings.
3. Special Immigrant Juvenile Findings Under Code of
Civil Procedure Section 155

The SIJ statute refers to orders made by “juvenile” courts. As a result, our courts
questioned which divisions of the superior court could or should make SIJ findings.
(See, e.g., B.F. v. Superior Court (2012) 207 Cal.App.4th 621 [probate]; Eddie E. v.

12
Superior Court (2013) 223 Cal.App.4th 622 [juvenile delinquency].) In 2014, the
legislature adopted Code of Civil Procedure section 155, which confirmed any division
of the superior court presented with a case involving child welfare (including, but not
limited to, juvenile, probate and family law divisions) may make SIJ findings. (Code
Civ. Proc., § 155, subd. (a).)7
In addition, subdivision (b)(1) of that section specifies the three factual findings
required under federal immigration law: “If an order is requested from the superior
court making the necessary findings regarding special immigrant juvenile status
pursuant to Section 1101(a)(27)(J) of Title 8 of the United States Code, and there is
evidence to support those findings, which may consist of, but is not limited to,
a declaration by the child who is the subject of the petition, the court shall issue the
order, which shall include all of the following findings: (A) The child was either of the
following: (i) Declared a dependent of the court. (ii) Legally committed to, or placed
under the custody of, a state agency or department, or an individual or entity appointed
by the court. The court shall indicate the date on which the dependency, commitment,
or custody was ordered. (B) That reunification of the child with one or both of the
child’s parents was determined not to be viable because of abuse, neglect, abandonment,
or a similar basis pursuant to California law. The court shall indicate the date on which
reunification was determined not to be viable. (C) That it is not in the best interest of
the child to be returned to the child’s, or his or her parent’s, previous country of
nationality or country of last habitual residence.” (Code Civ. Proc., § 155, subd. (b)(1).)

7
The full text of Code of Civil Procedure section 155, subdivision (a), reads:
“A superior court has jurisdiction under California law to make judicial determinations
regarding the custody and care of children within the meaning of the federal
Immigration and Nationality Act (8 U.S.C. Sec. 1101(a)(27)(J) and 8 C.F.R.
Sec. 204.11) (July 6, 2009), which includes, but is not limited to, the juvenile, probate,
and family court divisions of the superior court. These courts may make the findings
necessary to enable a child to petition the United States Citizenship and Immigration
Service for classification as a special immigrant juvenile pursuant to
Section 1101(a)(27)(J) of Title 8 of the United States Code.”

13
 We consider two issues related to the construction of Code of Civil Procedure
section 155, subdivision (b). To that end, we note the well established principle that
“ ‘[t]he fundamental purpose of statutory construction is to ascertain the intent of the
lawmakers so as to effectuate the purpose of the law. [Citations.] In order to determine
this intent, we begin by examining the language of the statute. [Citations.]’ [Citation.]”
(In re Marriage of Harris (2004) 34 Cal.4th 210, 221.)
First, neither the SIJ statute nor Code of Civil Procedure section 155 defines
abandonment. However, the Family Code contains two definitions of abandonment.
Under section 3402, abandonment occurs when a parent leaves a child without
provision for reasonable and necessary care or supervision. (§ 3402, subd. (a).) Under
section 7822, which applies in proceedings to terminate parental rights prior to a child’s
adoption, the same showing is required with the additional requirement of proof that the
parent intended to abandon the child. (§ 7822, subd. (a).) Bianka argues the
section 3402 definition should apply. Although no published decision has expressly
decided which definition applies, the court in Eddie E. v. Superior Court (2015)
234 Cal.App.4th 319, assumed, without any discussion or analysis, the definition of
abandonment found in section 7822 applies. (Id. at p. 332.) Bearing in mind the intent
behind Code of Civil Procedure section 155, we conclude the definition of abandonment
found in section 3402 should apply. The SIJ statute focuses on the child’s current
ability to reunify with one or both parents; whether the parents’ abandonment was
intentional or unintentional, its impact on the child’s welfare and ability to be cared for
in her home country is the same. For that reason, we do not require proof of intentional
abandonment as required under section 7822, subdivision (a).
Second, Code of Civil Procedure section 155 is silent on an issue that has caused
some consternation in the superior courts (and possibly also among our colleagues),
namely, when SIJ findings should be made. No published California case has addressed
the issue and we have no meaningful legislative history on this point to guide us in our
interpretation of the statute. Bianka suggests the court is required to make SIJ findings
at any time, upon request. In the proceedings below, Bianka requested a custody order

14
and an order making SIJ findings in a pretrial request for order (RFO). At that time,
Bianka’s mother had not filed any response to the petition, her default had not been
taken, and the court had not yet made a parentage determination. The court expressed
concern that issuance of SIJ findings at the pretrial stage was premature. We agree.
The Judicial Council has not yet adopted rules regarding SIJ findings made by
courts in the family law division. However, the Judicial Council forms8 developed for
use in family law matters contemplate SIJ findings may be requested in the following
proceedings: petition for dissolution of a marriage or domestic partnership; petition to
establish a parental relationship; petition for custody and support of minor child(ren);
and a petition for a domestic violence restraining order. (Judicial Council Forms,
form FL-356.) In all cases, the petitions must request sole physical custody of the child.
(Ibid.) Courts may also make SIJ findings in connection with an adoption request or
other proceeding in which sole custody of the child is requested. (Ibid.)
Under Code of Civil Procedure section 155, subdivision (b)(1)(A), an order
containing SIJ findings confirms a custody order has been made. To support a petition
for SIJ status effectively, that custody order must be in effect not only at the time the
petition is filed, but also at the time the petition is adjudicated by the UCJIS. (Cf.
8 C.F.R. § 204.11(c)(5) (July 6, 2009) [requiring continuing eligibility for long-term
foster care, under prior version of SIJ statute]; and see 76 Fed.Reg. 54985 (Sept. 6,
2011) [proposed 8 C.F.R. § 204.11 (b)(iv)].) In light of our legislature’s intent to
facilitate access to federal immigration relief, we construe Code of Civil Procedure
section 155 to mean SIJ findings must be made after or in connection with a judicial
custody determination after a full and fair evidentiary hearing. And, in an action
brought under the UPA, the court must determine parentage of the proposed custodial
parent(s) before making a custody order. (See Scott v. Superior Court (2009)
171 Cal.App.4th 540, 544.) As for when the custodial determination may be made—

8
Forms adopted by the Judicial Council are adopted as rules of court. (Cal. Rules
of Court, rule 5.7(a).)

15
i.e., pretrial or after trial—we hold that so long as notice and a meaningful opportunity
to be heard are provided, a custodial order may be made at any point in the proceedings.
(See § 3022 [authority to issue custody order at any time].) However, we emphasize
that the custody order must be in effect when the petition for adjustment of the child’s
status is heard by federal immigration authorities. We also note federal immigration
authorities have discretion to place removal proceedings on hold during the pendency of
state child welfare proceedings, as is the case here.
Accordingly, we could deny the petition for writ of mandate because the court
properly found the RFO in this case was premature. However, because the record
appears to contain sufficient evidence to establish Gladys is Bianka’s natural mother,
the question of her parentage is unlikely to present a significant obstacle in this case.
Rather than remand for a determination of parentage without answering the additional
questions posed by the petition, and in the interest of providing guidance that has been
requested by the lower courts and the bar, we address the substantive issues presented in
this case concerning the interplay between parentage, custody, jurisdiction, and SIJ
findings.
4. Parties to a Parentage Action
As discussed, ante, the court found that Jorge is an indispensible party who must
be joined to the pending parentage action. Although we disagree with some portions of
the court’s analysis, we see no abuse of discretion in the court’s conclusion that Jorge
should be joined as a party in this case.
A. The UPA generally
“ ‘The Uniform Parentage Act (UPA), Family Code section 7600 et seq.,
provides the statutory framework for judicial determinations of parentage, and governs
private adoptions, paternity and custody disputes, and dependency proceedings.’ ”
(In re D.A. (2012) 204 Cal.App.4th 811, 824.) The UPA is “the procedural vehicle by
which unmarried parents establish their rights vis-à-vis each other and their children.”
(Erika K. v. Brett D. (2008) 161 Cal.App.4th 1259, 1267.)

16
 Under the UPA, a parentage action may be initiated by a child, the child’s natural
mother, a presumed parent, a prospective adoptive parent or, in specific circumstances,
other interested parties. (§ 7630.) With regard to paternity, the UPA distinguishes
between “alleged,” “biological,” and “presumed” fathers. (See Francisco G. v. Superior
Court (2001) 91 Cal.App.4th 586, 595-596.) “A man who may be the father of a child,
but whose biological paternity has not been established, or, in the alternative, has not
achieved presumed father status, is an ‘alleged’ father. [Citation.]” (In re Zacharia D.
(1993) 6 Cal.4th 435, 449, fn. 15.) “A biological or natural father is one whose
biological paternity has been established, but who has not achieved presumed father
status . . . . ” (Ibid.) The UPA contains specific provisions relating to presumed parent
status. For example, a man married to the natural mother is presumed to be the natural
father of a child born during the marriage or within 300 days after the marriage is
terminated. (§ 7611, subd. (a).) Further, a man who receives a child into his home and
openly holds the child out as his natural child is presumed to be the child’s natural
father. (§ 7611, subd. (d).) Presumed fathers are vested with greater parental rights
than alleged or biological fathers. (In re Zacharia D., supra, 6 Cal.4th at pp. 448-449.)
Parentage actions arise most commonly in two circumstances. First, the natural
mother, the child, or the state may want to establish a parent-child relationship between
the child and the child’s alleged biological father, or another person who is a presumed
parent within the meaning of section 7611, as a predicate for an order of child support.
(See, e.g., Elisa B. v. Superior Court (2005) 37 Cal.4th 108.) The second common
situation is where an alleged or presumed parent wants to establish a parent-child
relationship under the UPA in order to secure rights to custody and visitation. (See,
e.g., Adoption of Kelsey S. (1992) 1 Cal.4th 816.) In both circumstances, issues of
parentage and custody are resolved in the context of a proceeding that is, at least to
some extent, adversarial.
The present case, however, does not fall into either of these two common
scenarios. Here, Bianka initiated the parentage action naming her natural mother as the
only respondent and it appears maternity is uncontested. In our search of California

17
law, we found relatively few published cases in which maternity was at issue and none
involving an uncontested parentage action between a child and her natural mother.
Although such a parentage action is not expressly prohibited under the UPA or the
applicable rules of court, it is certainly a novel use of that statutory scheme. Further, as
the court observed and as Bianka concedes, the pending parentage action seeks to
preserve the status quo even though nothing threatens to disrupt the status quo—
a matter that, in our view, does not appear to require any intervention by the court.
Moreover, with respect to Jorge, Bianka does not seek to enforce any obligation arising
out of the parent-child relationship and instead seeks a custody order tantamount to
a termination of his parental rights as well as an order finding Jorge abandoned her.
Those determinations would be more appropriately made in an action to declare Bianka
free from Jorge’s custody and control under section 7800 et seq.
In any event, the essential problem presented in this case is this: By requesting an
order giving her mother sole legal and physical custody predicated on Jorge’s abuse and
abandonment, Bianka is impliedly asking the court to adjudicate Jorge’s custody rights
(if any) but she has presented the issue in a case in which Jorge is not a party. The court
was understandably reluctant to permit the action to proceed in that fashion, particularly
where Jorge was named as a respondent in the dismissed action, Gladys (the petitioner
in the dismissed action) personally served him, Jorge never responded but was not
defaulted, and no evidence was presented that Jorge was unwilling to enter into
a stipulation concerning parentage or custody. Simply put, an uncontested action under
the UPA between a child and one parent is not an appropriate means by which to
adjudicate both parents’ custody rights. Further, in an action under the UPA, it would
be inappropriate for a court to find that Bianka’s father abandoned her without first
determining paternity. While we understand Bianka’s desire to obtain immigration
relief under federal law, we are constrained by existing state law. We are also mindful,
as discussed ante, that an order containing SIJ findings will not be useful to Bianka
unless it is issued in the context of a bona fide custody proceeding. Because Bianka’s
parentage action against Gladys appears to have been brought only to obtain SIJ

18
findings, the proceeding below was not a bona fide custody proceeding under the UPA.
Indeed, as noted by the trial court, Bianka has lived with her mother for many months in
Los Angeles and her mother has had no difficulty obtaining health care, education or
anything else for her daughter.
B. Joinder under the UPA
Bianka contends the court erred as a matter of law by requiring Jorge’s joinder in
this case. We disagree.
Bianka correctly notes that, as a general matter, the UPA does not require both
alleged biological parents to be named as parties in every parentage action. Indeed,
under section 7635, only one person must be made a party to a parentage action: the
child who is the subject of the action, if the child is 12 years of age or older. (§ 7635,
subd. (a).) Any other interested party may be named as a party. For example,
section 7635, subdivision (a), provides that if the child who is the subject of the
parentage action is younger than 12 years of age, the child may be made a party. (Ibid.)
Other interested persons, including “[t]he natural parent, each person presumed to be
a parent under Section 7611, and each man alleged to be the natural father, may be made
parties and shall be given notice of the action in the manner prescribed in Section 7666
and an opportunity to be heard.”9 (§ 7635, subd. (b), emphasis added.) We therefore
agree, as a general matter, Bianka was not required to name Jorge as a respondent in her
action to establish a parental relationship with Gladys.
Nevertheless, there are circumstances in which joinder may be appropriate, as in
the present case in which Bianka requests an order giving her mother sole legal and

9
Section 7666, which appears in the chapter of the Family Code addressing
termination of parental rights in an adoption proceeding, provides in pertinent part:
“notice of the proceeding shall be given to every person identified as the biological
father or a possible biological father in accordance with the Code of Civil Procedure for
the service of process in a civil action in this state at least 10 days before the date of the
proceeding . . . . Proof of giving the notice shall be filed with the court before the
petition is heard.” (§ 7666, subd. (a).)

19
physical custody. “The requirements of due process of law are met in a child custody
proceeding when, in a court having subject matter jurisdiction over the dispute, the
out-of-state parent is given notice and an opportunity to be heard.” (In re Marriage of
Torres (1998) 62 Cal.App.4th 1367, 1378.) While joinder of an alleged parent who
lives outside California may not be required in every case in which sole custody is
requested, we are hard pressed to think of a circumstance in which it would not be
prudent and consistent with principles of due process.
Here, the court applied the mandatory joinder provision found in California
Rules of Court, rule 5.24(e), which states: “The court must order that a person be joined
as a party to the proceeding if any person the court discovers has physical custody or
claims custody or visitation rights with respect to any minor child of the marriage,
domestic partnership, or to any minor child of the relationship.” (Cal. Rules of Court,
rule 5.24(e)(1)(A).) Bianka argues joinder is unnecessary because Jorge does not claim
custody or visitation rights. Bianka’s contention is without merit because there is no
admissible evidence10 in the record before us which establishes whether Jorge does or
does not wish to claim any custody or visitation rights in this case. Although the court
could have inferred, as Bianka urges, Jorge does not claim any interest in Bianka’s
custody because he has not taken any action to establish his parentage or right to
custody in the pending proceeding, it was not required to do so.
In any event, we need not decide whether joinder of an alleged parent is required
in every case in which sole custody is requested because the court’s joinder order was
appropriate in this case under the permissive joinder provision of California Rules of
Court, rule 5.24. (Cal. Rules of Court, rule 5.24(e)(2).) That section of the rule states in
pertinent part: “The court may order that a person be joined as a party to the proceeding
if the court finds that it would be appropriate to determine the particular issue in the

10
We agree with the trial court that statements purportedly made by Jorge during
a telephone call with Bianka’s counsel, as relayed in a declaration submitted to the court
by Bianka’s counsel, are inadmissible hearsay.

20
proceeding and that the person to be joined as a party is either indispensable for the
court to make an order about that issue or is necessary to the enforcement of any
judgment rendered on that issue.” (Ibid.) For at least two reasons, the court did not
abuse its discretion by requiring Jorge’s joinder in this case.
First, although Bianka maintains Jorge’s paternity is irrelevant because she
brought an action to establish only maternity, the fact remains that she has placed
Jorge’s paternity squarely at issue by requesting an order containing a factual finding
that her father abandoned her. Further, in the context of a custody proceeding, a court
properly considers a wide range of factors bearing on a child’s best interests, including
in this case Jorge’s paternity and presumed father status, if any, as well as his ability and
desire to have a relationship with Bianka, if any. (See § 3020, subd. (b) [noting the
importance of frequent and continuing contact between a child and both parents];
§ 3010 [noting a child’s natural mother and father, if the father is a presumed father
under section 7611, are equally entitled to custody of their child].) Although the
declarations from Bianka and Gladys indicate Jorge has not fostered a relationship with
Bianka and has no interest in doing so in the future, it was within the court’s discretion
to attempt to give Jorge a meaningful opportunity to refute those allegations before
making the orders requested by Bianka in this case.
Second, although Bianka’s petition does not expressly seek to terminate Jorge’s
parental rights, the order she seeks would have a similar effect. Bianka asked the court
to place her in her mother’s sole legal and physical custody. Ordinarily, a sole custody
order does not deprive the noncustodial parent of all parental rights. (See
In re Marriage of Brown & Yana (2006) 37 Cal.4th 947, 958.) But here, although
Bianka’s petition takes no position on visitation, as a practical matter she would have to
oppose any visitation rights for Jorge, as visitation is incompatible with the requested
SIJ finding that reunification is not viable. Substantial geographic separation, which
will often (if not always) be present in cases in which SIJ findings are requested, further
exacerbates the effect of a sole custody order in this case. In our view, the court was

21
reasonably concerned about making such an order in a nonadversarial proceeding to
which the noncustodial parent is not a party, as is the case here.
Bianka asserts joining Jorge to the pending action will unnecessarily delay the
proceedings, confuse the issues, complicate matters and/or interfere with effective
disposition of the case, all factors which may impact a court’s decision regarding
joinder.11 (Cal. Rules of Court, rule 5.24(e).) Such concerns are misplaced here since
Bianka is aware of her father’s identity and his whereabouts and, in fact, has provided
him with copies of her petition and related documents. She has therefore already
demonstrated that she has the ability to comply with the procedural requirements for
joinder.12 (Cal. Rules of Court, rule 5.24(e)(3).)
We recognize Bianka will not only need to join Jorge to the action but must also
establish a basis for personal jurisdiction over him, and we appreciate that process may
prove difficult for Bianka and other similarly situated children seeking SIJ status. We
note, however, that if the nonresident parent stipulates to parentage, that stipulation
constitutes a general appearance, and establishes personal jurisdiction, in the lawsuit.
(See Adoption of Matthew B. (1991) 232 Cal.App.3d 1239, 1270 [challenge to stipulated
judgment of paternity for lack of personal jurisdiction rejected].) The record before us

11
California Rules of Court, rule 5.24(e) states in pertinent part: “In deciding
whether it is appropriate to determine the particular issue in the proceeding, the court
must consider its effect upon the proceeding, including: [¶] (A) Whether resolving that
issue will unduly delay the disposition of the proceeding; [¶] (B) Whether other parties
would need to be joined to make an effective judgment between the parties; [¶]
(C) Whether resolving that issue will confuse other issues in the proceeding; and [¶]
(D) Whether the joinder of a party to determine the particular issue will complicate,
delay, or otherwise interfere with the effective disposition of the proceeding.”
12
Cal. Rules of Court, rule 5.24(e)(3), provides: “If the court orders that a person
be joined as a party to the proceeding under this rule, the court must direct that
a summons be issued on Summons (Joinder) (form FL-375) and that the claimant be
served with a copy of Notice of Motion and Declaration for Joinder (form FL-371), the
pleading attached thereto, the order of joinder, and the summons. The claimant has
30 days after service to file an appropriate response.”

22
does not establish whether Jorge was willing or unwilling to stipulate to a judgment of
paternity. However, if the court were to proceed in the absence of personal jurisdiction
over Jorge, any order regarding his parentage and any default judgment would
necessarily be void and subject to a motion to vacate in the future. (See County of
San Diego v. Gorham (2010) 186 Cal.App.4th 1215, 1227 [holding judgment of
paternity void in the absence of personal jurisdiction over father].) This alternative is
untenable.
We emphasize our narrow holding that joinder is appropriate under the
circumstances present in this case—namely, where the identity and whereabouts of the
child’s absent parent are known. In other circumstances, including situations in which
the child’s absent parent cannot be located or identified, joinder would be inappropriate.
(See § 7635 [UPA notice must comply with § 7666]; § 7666 [notice not required where
alleged biological father cannot be located or his identity cannot be ascertained].)
5. Notice and the Opportunity to Be Heard
A. Uniform Child Custody Jurisdiction Enforcement Act
(i) Special appearance by a party to a child custody matter
The provisions of the Uniform Child Custody Jurisdiction and Enforcement Act
(UCCJEA) relating to personal jurisdiction provide additional support for the trial
court’s view that Jorge should be made a party to the pending parentage action.
The exclusive method of determining subject matter jurisdiction (i.e., proper
jurisdictional situs) in multi-jurisdictional child custody cases is the UCCJEA.
(§ 3400 et seq.) “ ‘The UCCJEA takes a strict “first in time” approach to jurisdiction.
Basically, subject to exceptions not applicable here [citations], once the court of an
appropriate state (Fam. Code, § 3421, subd. (a)) has made a “child custody
determination,” that court obtains “exclusive, continuing jurisdiction . . . . ”
(Fam. Code, § 3422, subd. (a).) The court of another state: [¶] (a) Cannot modify the
child custody determination (Fam. Code, §§ 3421, subd. (b), 3422, subd. (a), 3423,
3446, subd. (b)); [and] [¶] (b) Must enforce the child custody determination (Fam.
Code, §§ 3443, 3445, 3446, 3448, 3453) . . . . ’ [Citation.]” (In re Marriage of Nurie

23
(2009) 176 Cal.App.4th 478, 491.) Under the UCCJEA, a California court must “treat
a foreign country as if it were a state of the United States for the purpose of”
determining jurisdiction. (§ 3405, subd. (a); In re Marriage of Nurie, supra,
176 Cal.App.4th at p. 490.)
In some cases, it may be appropriate to litigate the existence of jurisdiction under
the UCCJEA in the first instance. (§ 3407.) The UCCJEA contemplates that
jurisdictional issues will be raised by a party to the custody proceeding. (§ 3407 [if
there is a question about jurisdiction, “the question, upon request of a party, must be
given priority on the calendar and handled expeditiously”], emphasis added.) However,
as a nonparty, Jorge could not contest the court’s subject matter jurisdiction in this case
by, for example, bringing a motion to quash service of the summons.
Further, the UCCJEA allows a parent to participate in pending child custody
proceedings without submitting to personal jurisdiction in this state. (§ 3409, subd. (a).)
This is an important protection afforded to out-of-state parents, as it affords parents the
opportunity to participate in proceedings relating to child custody without subjecting
themselves to the general jurisdiction of the court with respect to other issues, such as
liability for child support. However, the special appearance provision applies only to
“[a] party to a child custody proceeding, including a modification proceeding, or
a petitioner or respondent in a proceeding to enforce or register a child custody
determination.” (§ 3409, subd. (a), emphasis added.) Notably, Jorge currently cannot
appear specially under § 3409 because he is not a party to the action. Conceivably,
Jorge could appear specially in the pending proceeding and waive all rights to custody.
In our view, joining Jorge as a party to the parentage action and giving him the
opportunity to make a special appearance in the action is wholly consistent with the
court’s obligation to ensure that he receives both notice and a meaningful opportunity to
be heard. At a minimum, the court did not abuse its discretion by considering due
process in making its determination regarding joinder.

24
 (ii) Subject matter jurisdiction under the UCCJEA
On a separate point, Bianka argues in her petition, as she did below, that because
the court has subject matter jurisdiction over her custody proceeding under the
UCCJEA, the court necessarily had the authority under section 3020 to issue any
custody order it deemed to be in Bianka’s best interest, notwithstanding other
substantive issues which might bear on that question, such as paternity. This is not the
correct analysis. The question of subject matter jurisdiction is a preliminary, necessary
step that relates purely to the proper forum as between California and other possible
jurisdictions. The substantive decision—i.e., whether placing Bianka in her mother’s
sole legal and physical custody is in her best interest—is made with reference to the
applicable family law statutes including, in this case, the UPA. (See In re Marriage of
Nurie, supra, 176 Cal.App.4th at p. 492 [noting the UCCJEA “ ‘eliminates the term
“best interests” from the statutory language to clearly distinguish between the
jurisdictional standards and the substantive standards relating to child custody and
visitation’ ”].) Stated differently, the fact that the court had jurisdiction to make a
custody order does not dispense with the need to issue a custody order in accordance
with applicable law.
B. SIJ findings in legal guardianship proceedings
Because it appears to us Bianka’s primary goal in bringing her parentage action
was to obtain an order containing SIJ findings, we consider the extent to which parents
in Jorge’s circumstance might receive notice and the opportunity to be heard prior to the
issuance of SIJ findings in other contexts. Specifically, where an undocumented child
does not reunite with a parent in the United States, a child may need a legal guardian.
To a large degree, parents of a proposed ward in a guardianship proceeding are similarly
situated to a parent such as Jorge, as the effect of the appointment of a legal guardian
has largely the same effect as the award of sole legal and physical custody, i.e.,
suspension of the parents’ ability to exercise legal rights and make decisions about the
child. (See Guardianship of Ann S. (2009) 45 Cal.4th 1110, 1123-1124 [“When the
court appoints a guardian, the authority of the parent ‘ceases.’ [Citation.] The court has

25
discretion to grant visitation [citation], but otherwise parental rights are completely
suspended for the duration of a probate guardianship [citation.]”].) Although parents
are not parties in a guardianship proceeding, we find it helpful to consider to what
extent they have the right to notice and a meaningful opportunity to be heard regarding
both the appointment of a guardian and a request for SIJ findings.
In a guardianship proceeding, a proposed ward’s parents must receive actual
notice of the hearing on a petition for the appointment of a guardian. Proof of that
notice must be presented to the court before the appointment of a guardian may be
made. (Prob. Code, § 1511, subds. (a), (b)(3), (h); see Guardianship of Debbie V.
(1986) 182 Cal.App.3d 781, 785-786 [noting parents of proposed ward must be served
under Code of Civil Procedure section 415.10 or 415.30 and confirming that “[u]nder
either of these methods, actual receipt of the notice is assured, i.e., the subject of the
notice will either be personally served or will acknowledge receipt of a mailed notice”].)
A parent who objects to guardianship is entitled to a hearing. (See Guardianship of
Ann S., supra, 45 Cal.4th at p. 1122.)
With respect to SIJ findings, California Rules of Court, rule 7.1020 provides any
person authorized to bring a petition for the appointment of a guardian, including
a proposed ward over the age of 12 years old, may file a request for an order making SIJ
findings in a guardianship proceeding. (Cal. Rules of Court, rule 7.1020(b)(1).) The
proposed ward’s parents are entitled to receive a copy of the request for SIJ findings and
notice by mail, at least 15 days prior to the hearing, of the time and date of the hearing
on the request. (Cal. Rules of Court, rule 7.1020(c); Prob. Code, § 1406 [requiring
notice by mail 15 days prior to hearing].) Importantly for our purposes, rule 7.1020 also
expressly provides that any person entitled to notice of the request for SIJ findings, i.e.,
the proposed ward’s parents, “may file an objection or other opposition to the request.”
(Cal. Rules of Court, rule 7.1020(d).)
Under this rule, the proposed ward’s parents receive actual notice and
a meaningful opportunity to be heard regarding SIJ findings, which necessarily includes

26
a finding of parental abandonment. No less due process should be required in an action
brought under the UPA in which a party requests SIJ findings.13
C. Due process in default proceedings
Although we have held it was not an abuse of discretion for the court to require
Jorge’s joinder in this case, we are aware of the distinct possibility that Jorge will not
oppose or respond to the petition. Indeed, if it is true, as Bianka alleges, that Jorge has
no interest in her well being, his default—assuming personal jurisdiction is established
or not contested—seems the most likely outcome. However, for the reasons that follow,
in addition to adding Jorge as a party, Bianka must provide Jorge with notice of the
specific findings of abuse, neglect or abandonment she seeks.
“It is fundamental to the concept of due process that a defendant be given notice
of the existence of a lawsuit and notice of the specific relief which is sought in the
complaint served upon him. The logic underlying this principle is simple: a defendant
who has been served with a lawsuit has the right, in view of the relief which the
complainant is seeking from him, to decide not to appear and defend. However,
a defendant is not in a position to make such a decision if he or she has not been given
full notice.” (In re Marriage of Lippel (1990) 51 Cal.3d 1160, 1166 (Lippel); see also
Hogoboom & King, Cal. Practice Guide: Family Law (The Rutter Group 2015) ¶ 12:3,
p. 12-2 [“As in civil actions generally, a family law default judgment may only be
granted for the specific relief requested in the petition served on respondent . . . ”].)

13
We also note that the Judicial Council’s proposed rule 5.130 regarding SIJ
findings in family law custody proceedings would not, as drafted, provide a nonparty
with notice and the opportunity to be heard before SIJ findings are made. Proposed
rule 5.130(c), provides only that “[a] person entitled to notice of a Request for Order
(FL-300) under rule 5.92 may file an objection or other opposition to a request” for SIJ
findings. (Judicial Council of California, Invitation to Comment W16-11, Family Law:
Special Immigrant Juvenile Findings, available online at
http://www.courts.ca.gov/documents/W16-11.pdf.) California Rules of Court, rule 5.92
requires only that notice be given to the opposing party in the action. (Cal. Rules of
Court, rule 5.92(a)(6) [“The moving party must file the documents with the court to
obtain a court date and then serve a copy on the responding party”].)

27
Thus, in an action for marital dissolution, a court may not issue a default judgment
imposing an obligation of child support where such relief was not requested in the
petition for dissolution. (See, e.g., Lippel, supra, 51 Cal.3d at pp. 1167-1171.)
Similarly, in a marital dissolution proceeding in which one party defaults, a court cannot
dispose of property not listed in the petition for dissolution. (See, e.g., In re Marriage
of Andresen (1994) 28 Cal.App.4th 873, 879-880.)
Here, Bianka’s parentage petition indicates she is seeking a sole custody order as
well as an order containing SIJ findings. Although the petition cites the SIJ statute as
well as Code of Civil Procedure section 155, the petition does not indicate Bianka seeks
an order specifically finding that Jorge abandoned her and/or committed acts of
domestic violence against Gladys. Consistent with the due process principles discussed
above, we hold that in a default proceeding under the UPA, a court may only issue an
order containing SIJ findings regarding parental abuse, neglect, abandonment or other
similar actions if those factual allegations were contained in the original petition or in
a request for order served together with the summons and a copy of the petition. Only
in such circumstances would a parent be on notice of the potential for a negative factual
finding of abuse, neglect or abandonment.
We also require disclosure of allegations regarding parental abuse, neglect,
abandonment, or similar actions because those findings carry significant consequences
in future family law proceedings. For example, under section 3044, subdivision (a),
there is “a rebuttable presumption that an award of sole or joint physical or legal
custody of a child to a person who has perpetrated domestic violence is detrimental to
the best interest of the child . . . . ” (See also In re Marriage of Fajota (2014)
230 Cal.App.4th 1487, 1497, 1499 [noting section 3044 “presumption applies whenever
there is a finding that one parent committed an act of domestic violence against another
parent, a child, or a child’s siblings within the past five years,” even in the absence of
a restraining order].) It would be extremely problematic for our courts to make a factual
finding of abuse in a default proceeding, thereby triggering the rebuttable presumption

28
against custody, where the alleged abuser did not have notice of and an opportunity to
rebut the allegation.
Further, a finding of abuse or similar conduct has the potential to defeat
a parent’s claim for return of a child to the child’s country of habitual residence under
the Hague Convention on the Civil Aspects of International Child Abduction (Hague
Convention). (See Noergaard v. Noergaard (2015) 244 Cal.App.4th 76, 87-88 [“First,
it is true that ‘the [Hague] Convention prohibits courts in countries other than that of the
child’s habitual residence from “adjudicating the merits of the underlying custody
dispute.” [Citations.]’ [Citation.] But it is necessarily also true that a Hague
Convention court must consider in the first instance the respondent’s allegations of
grave risk that postdate earlier foreign custody orders. [Citation.] Courts must consider
these issues in deciding whether to impose undertaking requirements if the court orders
the child’s return, or to deny the child’s return”].) We note that in the context of cases
brought under the Hague Convention, courts have held due process requires an
opportunity for a parent to be heard, at a full evidentiary hearing, on claims that would
prevent a child’s return under the Hague Convention. (Id. at p. 87.) And although there
is no evidence here that Gladys removed Bianka from Jorge’s custody or that Honduras
is a signatory to the Hague Convention, the procedure used in this case and the relief
requested under the UPA could allow a parent to circumvent and undermine the Hague
Convention and other mechanisms designed to effectuate the prompt return of a child
taken by one parent across international borders in violation of a right of custody. (See
Abbott v. Abbott (2010) 560 U.S. 1, 20 [noting the Hague Convention’s main purpose is
“deterring child abductions by parents who attempt to find a friendlier forum for
deciding custodial disputes”].)
In short, in light of the significant consequences which flow from findings of
abuse, neglect, abandonment or some similar conduct by a parent, such findings should
not be made in a default proceeding without adequate and specific notice.

29
 DISPOSITION
The petition is denied.

CERTIFIED FOR PUBLICATION

LAVIN, J.

WE CONCUR:

EDMON, P. J.

ALDRICH, J.

30