Home State Jurisdiction

Paternity actions are often contentious, but when one parent has moved with the child, multiple factors must be considered. One major factor is determining which Court will have jurisdiction to rule on the matter. The case of Ocegueda v. Perreira (2015), Cal.App.4th, Jan. 5, 2015 – (Superior Court of Yolo County, Samuel T. McAdam, Judge) illustrates the complications that can arise when the home state jurisdiction is being disputed.

The UCCJEA’s description of “Home State Jurisdiction”, as codified in FC Section 3421, states:

(Other than as stated in FC 3424) “… 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 …”

Father and Mother lived together in California, where Mother became pregnant. After becoming pregnant, Mother said she intended to live in Hawaii, but Father disagreed and pointed out the couple planned to live in California. Mother temporarily relocated, gave birth in Hawaii and lived there for 41 days before returning to California. The day Mother returned to California, Father filed a parentage action.

In the action, they agreed to joint custody and Mother would not leave California with the baby without Father’s written consent or a Court order. Soon after, Mother filed another parentage action in Hawaii. At a subsequent hearing in California, Mother testified she never intended to return to California but lied because she felt doing so would make for less strife until she moved back to Hawaii. Nonetheless, the Court found evidence that her intent was consistent with Father’s testimony, in which they agreed Mother would give birth in Hawaii and then return with their son to live in California.

The Trial Court determined when Mother gave birth in Hawaii, the trip was only a temporary absence from California. Specifically, the Court found the evidence under Fam. Code, §3421(a)(1) of the UCCJEA, California was the child’s Home State at the time Father filed his action and that the California Court had jurisdiction. Mother then appealed, contending that finding California as the child’s Home State was an error.

Appellate Court reversed the Trial Court by deciding California was not a newborn’s Home State after the child was born in Hawaii. The Court of appeal determined that §3402(g) clearly provides that if a child is less than six months old at the time a case is filed, the child’s Home State is where they lived from birth and resided with a parent. As such, the Appellate Court reasoned California could not possibly be the Home State of the baby as before the commencement of the proceedings, he had only been in California for one day, he was born and “lived” in Hawaii for five weeks prior to traveling to California. Therefore, the Court held the child had “lived” in Hawaii for purposes of determining Home State jurisdiction under the UCCJEA.

In reaching its decision, the Court researched out-of-state cases decided under the UCCJEA. Those held that at the very least, a child must have been “physically present” in a state in order to find Home State jurisdiction. Rather pointedly, the California Appellate Court declined to apply a subjective test regarding the intent of parents when determining where they “live.” Note that the Hague Convention uses such a focus when deciding a child’s “Country of Habitual Residence”.

Accordingly, Mother’s intent to live in Hawaii was not the controlling factor, nor was it Father’s intent to live in California. The controlling factor is where the child was born and where he lived for at least six months prior to the commencement of the action. The state of birth was not just important, but according to the Appellate Court, essential to a determination of the child’s Home State.

Be careful to note when a parentage case is filed, as place of birth is the marker for determining a newborn’s Home State. Also note that periods of “temporary absence” from the child’s Home State, as here where Mother returned to California (or more commonly, such things as summer vacations) do not count towards the time for determining a child’s Home State.