Hafer

In this child custody modification proceeding the mother Julia Sandra Fields has, in our opinion, improperly sought the assistance of the San Diego Superior Court to change physical custody to herself after the children have lived more than three years with their father, Earl L. Hafer, Jr., in Idaho.

The original dissolution decree from the San Diego Superior Court dated September 27, 1977, gave the parents joint legal custody of the two girls, now aged seven and nine, with physical custody to Earl and visitation rights to Julia. The children have lived with Earl in Idaho since then except for a period when Julia admittedly abducted the chil *858 dren in December 1980 and fled with them to Florida, until with the assistance of the process of the San Diego court Earl regained custody of the girls in March 1981.

On June 30, 1981, Julia filed a child custody modification action in San Diego, based on alleged medical neglect of the children by Earl. Earl opposed the petition on jurisdictional grounds under the Uniform Child Custody Jurisdiction Act (UCCJA). He contended Idaho, which has adopted the UCCJA, is the proper forum. At a hearing on July 7, 1981, the superior court…

I respectfully dissent.

I

At bedrock is this proposition of law which controls our writ issuance: “[A] tribunal has jurisdiction to determine its own jurisdiction.” (Abel leira v. District Court of Appeal (1941) 17 Cal.2d 280, 302 [ 109 P.2d 942 , 132 A.L.R. 715 ].) And the appeal court does not interfere until the trial court has performed this threshold function. As the Supreme Court stated in Rescue Army v. Municipal Court ( 28 Cal.2d 460, 464 [ 171 P.2d 8 ]: “A court has jurisdiction to determine its own jurisdiction, for a basic issue in any case before a tribunal is its power to act, and it must have authority to decide that question in the first instance. It is necessary, therefore, to challenge the jurisdiction of the trial court in that court [italics in original], by demurrer, motion, plea or other objection of some kind, so that that court [italics in original] may prelim *869 inarily decide the question whether it has jurisdiction to proceed. And unless a party can show that a lower tribunal, after first determining that it has jurisdiction, is proceeding to exercise it [italics in original], there is nothing for a higher court to prohibit. This obvious principle is…

Matthew Nelson Lees for Real Party in Interest.

OPINION

BROWN (Gerald), P.J.

In this child custody modification proceeding the mother Julia Sandra Fields has, in our opinion, improperly sought the assistance of the San Diego Superior Court to change physical custody to herself after the children have lived more than three years with their father, Earl L. Hafer, Jr., in Idaho.

The original dissolution decree from the San Diego Superior Court dated September 27, 1977, gave the parents joint legal custody of the two girls, now aged seven and nine, with physical custody to Earl and visitation rights to Julia. The children have lived with Earl in Idaho since then except for a period when Julia admittedly abducted the children in December 1980 and fled with them to Florida, until with the assistance of the process of the San Diego court Earl regained custody of the girls in March 1981.

On June 30, 1981, Julia filed a child custody modification action in San Diego, based on alleged medical neglect of the children by Earl. Earl opposed the petition on jurisdictional grounds under the Uniform Child Custody Jurisdiction Act (UCCJA). He contended Idaho, which has adopted the UCCJA, is…