Haphazardly cutting ties and relocating with your child to another state (or country) to avoid child-custody litigation in California is not uncommon. However, if your child has lived in California continuously for at least six months including any temporary absences from the state, California may still be the child’s “home state” for purposes of making custody and visitation orders, even if you and the child have relocated elsewhere.
Generally, under such circumstances the only time California jurisdiction over custody proceedings does not exist is when either: 1) the child has been in another state (or country) for at least six consecutive months and the other parent has also relocated from California; or, 2) the other parent still resides in California, and he or she fails to commence California custody proceedings within six months of your relocation with the child, unless the relocation included deception.*
In Schneer v. Llaurado (2015), there was a factual dispute as to whether California or Florida was the “home state” of the parties’ minor child for purposes of child-custody litigation. This required the family court to assess which state the minor child lived in for the six months prior to the filing of a petition for custody in a California family court. If the child did not live in any state for a six-month period prior to the filing of the petition for child custody, then the family court was required to assess to which state the child had the most “significant connection” prior to the filing of the petition.
The Fourth District Court of Appeal, Division Two, was charged with determining the propriety of a family court order dismissing the petition for custody after finding Florida had subject-matter jurisdiction under the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA). The appellate court opined that contrary to the finding that a Florida court was the proper forum for this custody litigation, California had subject-matter jurisdiction as it was the child’s home state. Because the finding of home state was decided on residence, it precluded inquiry as to whether the child had a “substantial connection” with either state.
Father filed a petition for child custody on June 24, 2013, in San Bernardino County Superior Court. The petition stated the minor child was born in June, 2011, in Miami, Florida. It claimed the child’s mother, Alice Llaurado, and the child resided with Schneer in Twentynine Palms, California, beginning in April, 2012. Then, three months prior to the filing of Schneer’s petition, Llaurado took the minor child to Florida for what Schneer claimed was a temporary visit (i.e., “with the presumption of her return following a short visit”), but they remained in Florida “with no date of return.”
Llaurado challenged the petition based on lack of subject-matter jurisdiction. Rather than responding to the petition, she filed a motion to quash (i.e., “summarily extinguish,” per Merriam-Webster) the summons on the grounds the child had always lived in Miami and had never resided nor even stayed in California for more than a few weeks at a time. She also denied any intention to reside in California. What’s more, she claimed the child had never lived in Florida for a continuous six months either. Nonetheless, she asserted Florida had subject-matter jurisdiction to litigate their child’s custody, not through the six-month, physical-residency requirement but because the child had a “significant connection” to Florida that the child did not have with California. Laurado asked that the California family court action be dismissed, so that a similar action could be filed in the proper court in Florida.
Schneer opposed the motion to quash the summons. He argued Llaurado had made false statements in support of her motion which were contrary to her statements asserting California residency in past Riverside County Superior Court child-support litigation pertaining to her son from another relationship. According to Schneer, as a result of differing statements of residency, Llaurado should be estopped (legally barred) from asserting California iss not the home state of their child.
At the evidentiary hearing on the motion to quash the summons, Llaurado admitted she and the child had traveled to California to stay with Schneer in August, 2012 (not April) until March, 2013, for “an extended visit” (which happened to last more than six months). She even registered the child in a local school in Twentynine Palms.
However, Llaurado also testified she (accompanied by the child most of the time) returned to Florida “at least once a month” during what she characterized as an “extended visit” in California. These were for her doctor’s appointments, because she had a back injury and was being treated by a Florida physician. She testified she had stayed in California longer than she had planned and worked as a nurse in Florida. In March, 2013, she returned to resume her life in Florida, having withdrawn the child from school in Twentynine Palms and enrolling him in Florida. She stated Schneer would travel to Florida and visit at least once a month thereafter for a week or so at a time. By her own testimony, however, Llaurado admitted she and the child left California more than six months after arriving here, and she and the child had not live in Florida for six months before Schneer filed his petition for child custody.
Added to this, Schneer’s business associate testified that in December, 2011, both Schneer and Llaurado told him that they were relocating to Twentynine Palms to grow the business and from December through January, 2012, both Schneer and Llaurado had searched for a home there. He also testified that in March or April, 2012, he visited them at their residence in Twentynine Palms, finding Llaurado and the child were always there. The business associate acknowledged that at some point Llaurado told him she did not like living there.
The maternal grandmother of the child testified that the child lived in her home in January and April, 2012. She testified that Schneer, Llaurado, and the child went to California in August, 2012, and that Schneer told her they were “just going for a couple of months.”
The maternal grandfather, David Llaurado, testified that his daughter, Alice, and the minor child lived in his home from January, through August, 2012. He didn’t know when they moved to California, but he testified they returned in March, 2013, and had lived in his home since returning to Florida.
An employee of Schneer’s business testified that the parties and the child moved into their residence in April, 2012, that Llaurado would drive the minor child to school and pick him up every day, and that he regularly saw Llaurado and the child in Twentynine Palms.
Another of Schneer’s employees testified that it was the company that found the parties’ housing in early January, 2012, and that the parties and the minor child moved into the residence in late March or April, 2012. He stated he visited the home three or four times a week throughout 2012 and into early 2013, and that Llaurado was usually there except for a few times when she traveled to Florida.
Schneer testified he decided to move to Twentynine Palms in December, 2011, and that the parties’ agreement to relocate was a business decision. He stated they announced it at his business associate’s party that same month and he, Llaurado, and the child moved to Twentynine Palms in April, 2012. From April thorough August, 2012, Llaurado traveled to Florida every four or five weeks for a doctor’s appointment, and she stayed for a couple of days. Llaurado had her mail forwarded to Twentynine Palms and she had the child’s medical records transferred to a pediatrician there. Schneer further testified that in March, 2013, Llaurado traveled to Miami for surgery and at that time Schneer believed Llaurado would return once the physician released her after surgery.
In closing argument, Llaurado’s counsel maintained Llaurado and the child did not live in California continuously until October, 2012, and moved back to Florida in March, 2013, and therefore California could not be the child’s home state for lack of a continuous six months in California. Further, he argued Florida was not the child’s home state either because they had only returned to Florida four months prior to the filing of the petition. He then argued the child had a “significant connection” with Florida and therefore Florida had subject-matter jurisdiction under.Family Code section 3421, subd. (a)(2).
Schneer’s counsel argued the facts clearly showed the child lived in California from August, 2012, through March, 2013, and therefore the court must find home-state jurisdiction under the UCCJEA, specifically, Family Code section 3421, subd. (a)(1).
The family court judge interpreted Family Code section 3421, subd. (a)(1) as requiring him to look backward six months from the date of the filing of the petition. He rejected Schneer’s argument – even calling it a “misrepresentation” of the law – that Schneer could piggyback six months, back to August, 2012, when he stayed in California after mother and child returned to Florida. The family court judge found that California had no subject-matter jurisdiction, granted Llaurado’s motion to quash the summons, and dismissed the case entirely.
Standard of Review
On appeal, the parties agreed the matter was a question of law but differed as to the standard of review. Schneer’s counsel argued the jurisdictional facts should be reweighed independently, citing In re A.C. (2005), whose lineage is to Marriage of Fox (1986) and specifically the following language: “Since an adjudication under [the] U.C.C.J.A. [precursor to the UCCJEA] requires subject-matter jurisdiction, the Court of Appeal is not bound by the trial court’s findings and may independently reweigh the jurisdictional facts . . .” [Emphasis.]
Llaurado’s counsel argued the appellate court must review all of the facts de novo (i.e., consider all the facts anew), rendering immaterial all the family court’s findings of fact.
The appellate court did neither. After a lengthy and partially-negative review (that only an appellate practitioner could enjoy and why I omit it) of Marriage of Fox (specifically, its “independently reweigh” language, which the appellate court labeled unsupported dictum, i.e., a non-binding comment in passing), it disagreed with Schneer that the jurisdictional facts should be independently reweighed. It also disagreed with Llaurado that the facts should be reviewed de novo. The appellate court determined it must defer to the factual findings of the family court so long as substantial evidence exists to support them: “[W]hen the facts are contested, a trial court’s jurisdictional finding under the UCCJEA is reviewed under the deferential substantial evidence standard. . . .” (Hayward v. Super. Ct. (2000).)** “When conducting a substantial evidence review, we must review the entire record in the light most favorable to the prevailing party, resolve all conflicts in the evidence in favor of the ruling or judgment being reviewed, and indulge all reasonable inferences in support of the family court’s findings. . . .” (Marriage of Hill & Dittmer (2011).)
In dictum, the appellate court mentioned that when the facts are undisputed, it would declined a standard of reviewing for abuse of the trial court’s discretion. The proper standard of review in the case of undisputed facts is de novo. And, “as with any statute, Interpretation of the UCCJEA itself is a question of law reviewed de novo.” (Marriage of Davis (2015).)
“Home State” Requires Family Code Sections 3402 and 3421 Be Read Together
The appellate court began its analysis with the purposes of the UCCJEA: “to avoid jurisdictional competition between states or countries, promote interstate cooperation, avoid relitigation of another state’s or country’s custody decisions and facilitate enforcement of another state’s or country’s custody decrees. . . .” (In re Gloria A. (2013).)
“The UCCJEA is the exclusive method of determining subject matter jurisdiction in child custody cases.” (Fam. Code sec. 3421, subd. (b); Keisha W. v. Marvin M. (2014).) “Subject matter jurisdiction over a child custody dispute either exists or does not exist at the time the petition is filed, and jurisdiction under the UCCJEA may not be conferred by mere presence of the parties or by stipulation, consent, waiver, or estoppel.” (Brewer v. Carter (2013).) “Pursuant to the UCCJEA, California courts have jurisdiction over child custody determinations only if the child’s home state is California, or the child’s home state does not have jurisdiction or declined jurisdiction in favor of California.” (Fam. Code sec. 3421; Marriage of Richardson (2009).) The UCCJEA prioritizes home state jurisdiction over other jurisdictional bases. (Brewer v. Carter (2013).)
Family Code section 3402 states in part:
As used in this part: . . . (g) “Home state” means the state in which a child lived with a parent or a person acting as a parent for at least six consecutive months immediately before the commencement of a child custody proceeding. In the case of a child less than six months of age, the term means the state in which the child lived from birth with any of the persons mentioned. A period of temporary absence of any of the mentioned persons is part of the period. . . . [Emphasis.]
Family Code section 3421 states:
(a) Except as otherwise provided in Section 3424 [with regard to temporary emergency jurisdiction], a court of this state has jurisdiction to make an initial child custody determination only if any of the following are true:
(1) This state is the home state of the child on the date of the commencement of the proceeding, or was the home state of the child within six months before the commencement of the proceeding and the child is absent from this state but a parent or person acting as a parent continues to live in this state. [Emphasis.]
(2) A court of another state does not have jurisdiction under paragraph (1), or a court of the home state of the child has declined to exercise jurisdiction on the grounds that this state is the more appropriate forum under Section 3427 or 3428, and both of the following are true:
(A) The child and the child’s parents, or the child and at least one parent or a person acting as a parent, have a significant connection with this state other than mere physical presence.
(B) Substantial evidence is available in this state concerning the child’s care, protection, training, and personal relationships.
(3) All courts having jurisdiction under paragraph (1) or (2) have declined to exercise jurisdiction on the ground that a court of this state is the more appropriate forum to determine the custody of the child under Section 3427 or 3428.
(4) No court of any other state would have jurisdiction under the criteria specified in paragraph (1), (2), or (3).
(b) Subdivision (a) is the exclusive jurisdictional basis for making a child custody determination by a court of this state.
(c) Physical presence of, or personal jurisdiction over, a party or a child is not necessary or sufficient to make a child custody determination.
The appellate court cited Marriage of Harris (2004) [“we do not construe statutes in isolation, but rather read every statute ‘with reference to the entire scheme of law of which it is part so that the whole may be harmonized and retain effectiveness'”] for the proposition that Family Code section 3402, subd. (g), definition of “home state,” i.e., the state in which the child lived “for at least six consecutive months immediately before the commencement of a child custody proceeding” must be read in conjunction with the jurisdictional statute, section 3421, subd. (a)(1):
Family Code sections 3402, subd. (g), and 3421, when read together, provide two bases for home state jurisdiction:
- A California court has jurisdiction to make an initial determination of child custody if California is the child‟s home state on the date the proceeding is commenced (per Fam. Code sec. 3421, subd. (a)(1)), meaning the “child lived with a parent or a person acting as a parent for at least six consecutive months immediately before the commencement of a child custody proceeding” (per Fam. Code sec. 3402, subd. (g)). Or, alternatively,
- A California court has jurisdiction if California was the child’s “home state . . . within six months before the commencement of the proceeding, and the child is absent from this state but a parent or person acting as a parent continues to live in this state.” (Fam. Code sec. 3421, subd. (a)(1).)
The appellate court found substantial evidence supporting the family court’s finding that the child continuously resided in California from at least August, 2012, until March, 2013.i.e., for more than six months. This was true even though the child traveled with Llaurado to Florida several times during the same period. (Fam. Code sec. 3402, subd. (g)[“[I]n determining a child‟s period of residence, [a] period of temporary absence . . . is part of the period‟].) While Schneer did not file his petition for child custody until June, 2012, the child‟s absence from California for almost four months before Schneer commenced the custody proceeding was not dispositive because Schneer continued to reside in California. As a matter of law, the family court erred when it failed to apply the alternative basis for California “home state” jurisdiction.
* Deception might include telling the other parent that you would vacation with the child for four months at your parents home with the intention of returning to California, delaying by pretext your return for another two months, and then filing a petition for custody in the other state six months after departing California.
** By contrast, when the facts are uncontested, the ultimate determination of jurisdiction is a question of law reviewed de novo. (Vons Companies, Inc. v. Seabest Foods, Inc. (1996).)