In Ocegueda v. Perreira (2015), the Third District Court of Appeal, in a matter of first impression, reversed a family court’s finding that California is the child’s home state for purposes of jurisdiction to make child custody and visitation orders. Under the Uniform Child Custody Jurisdiction and Enforcement Act (“UCCJEA”), the home state of a child born in Hawaii, who at 41 days of age traveled with his mother to California to permanently reside here, was Hawaii.
This matter arose out of an action to establish a parental relationship (paternity) filed in Yolo County on October 24, 2012, by Father. Mother was born in Hawaii and lived there until 2007, when she moved to California at the age of 22. Mother and Father began dating in December, 2010, and moved into Father’s home in Woodland, California. The relationship had “problems.”
In June or early July, 2012, after Mother became pregnant, she told Father she intended to move back to Hawaii. Father objected and they argued about it “for weeks.” The ended up reaching an agreement whereby Mother would travel to Hawaii for the birth of their child but would return to California two weeks after the child was born. Mother stated later she never intended to honor that agreement. She took a temporary leave of absence from her job at the Cache Creek Casino, and left for Hawaii on or about August 27, 2012.
Father was in Hawaii for the birth on September 14, 2012. Roughly six weeks later, on October 24, 2012, Mother traveled with the child to California. The following day, Father filed this action, and served the Summons and Petition to Mother five days later.
On November 1, 2012, the parties stipulated to a joint-custody parenting plan and agreed not to travel outside California without mutual agreement or an order of the Yolo County Superior Court.
On November 9, 2012, Mother notified the family court that she had or would be filing a competing paternity action in Hawaii.
On November 16, 2012, the Yolo County family court contacted the Hawaii court in a telephone call as required under the UCCJEA when there are competing jurisdictions, and then issued an order that the two competing courts had agreed California had jurisdiction over the child, but also said that decision was “made without prejudice,” meaning that the parties would be able to challenge that jurisdictional decision at a future hearing. The appellate court stated that no evidence supported a finding that Hawaii court had declined jurisdiction. The Yolo County family court then set an evidentiary hearing for November 29, 2012, to specifically address UCCJEA jurisdiction and custody.
On November 29, 2012, Mother testified she never intended to return to California with the parties’ child. She lied to Father so she could relocate to Hawaii with “less conflict” and raise their son there. The family court judge found her actual intent was consistent with the parties’ agreement that she would give birth in Hawaii and return to California, and thus that her stay and that of the child in Hawaii was only a “temporary absence” from California.
The family court judge also determined that he had jurisdiction to make an initial custody determination because California had the most significant connection to the child under Family Code section 3421(a)(2).
Mother appealed from the jurisdictional determination that California was the child’s home state under the UCCJEA.
Relevant family law
The UCCJEA is the exclusive method of determining subject-matter jurisdiction in custody disputes involving other jurisdictions. (Marriage of Sareen (2007).) Subject-matter jurisdiction either exists or does not exist at the time the action is commenced and cannot be conferred by stipulation [here, the custody stipulation entered into by the parties], consent, waiver, or estoppel. (In re A.C. (2005)[citations omitted].) The action is commenced when the first pleading is filed. (Marriage of Sareen (2007)[citations omitted].)
Family Code section 3421(a) confers jurisdiction on a California court “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 reside in this state.
(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).
“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 a part of the period. (Family Code section 3402(g).)
According to the plain language of Family Code section 3402(g), the period for determining the home state of a child of less than six months of age starts with the child’s birth. (See Haywood v. Super. Ct. (2000)[no home state because child was not yet born when custody proceedings were initiated in both Michigan and California].)
California cannot be the child’s home because he was born and lived (requiring physical presence of the child) in Hawaii following his birth. Subjective intent of the parent is irrelevant. The child’s fleeting appearance (24 hours before Father filed this paternity action) in California does not affect home-state jurisdiction.