San Diego Divorce Lawyer Blog
Child custody issues typically arise within the confines of a divorce or legal separation proceeding. But couples who have never married and have a child together could still face legal obstacles if they separate and cannot agree to a parenting plan governing child custody or visitation. In such a situation, there could also be matters of paternity to address. California family law dictates in large measure the procedures to follow when trying to sort through any custody and visitation issue. Fortunately, an experienced San Diego family law attorney can help parents resolve any legal issues resulting from a divorce or related proceeding.
California, like many states in the country, has adopted the Uniform Child Custody Jurisdiction and Enforcement Act, widely known as the “UCCJEA.” It is codified at section 3400 et seq, and it sets forth when a state court has jurisdiction to render an initial child custody determination. While the statutory provisions may appear to be somewhat straightforward, there are times when the court must intervene to interpret the language, depending on the particular circumstances or facts before the court. A good example of this is a recent case where the California appellate court was called upon to resolve a dispute between two parents over the custody of their very young child.
Here, the mother was born in Hawaii, lived there until she was 22 years old, and moved to California in 2007. She and the father began dating in 2010 and within a short time, she moved into his home. The relationship was described as “troubled.” The mother alleged that the father drank too much and was abusive. In 2012, the mother became pregnant and advised the father that she planned to move back to Hawaii. The two argued about this issue but ultimately agreed that the mother would go to Hawaii to give birth and would return to California two weeks after the baby was born. She left for Hawaii on August 27, 2012.
The mother gave birth on September 14. On October 24, the mother traveled to California with the baby. The very next day, the father filed a parentage suit in California and served the mother with the documents. On November 1, the parties agreed to joint custody and a shared parenting plan. They also agreed not to travel out of the state without the consent of both parties or by court order. A little over a week later, the mother notified the California county court that she was filing a parentage action in Hawaii. The court held an evidentiary hearing to determine which court had jurisdiction to decide the child custody issues.
The trial court concluded that the mother’s stay in Hawaii was only a “temporary absence” from California, and ultimately found a “wealth of evidence” that her original intent was consistent with their agreement that she would give birth in Hawaii and return to California. In accordance with section 3421 of the statute, the court concluded that California is the home state of the child, and therefore this court has jurisdiction to make the initial custody decision. The mother appealed.
The court of appeals reversed the decision, concluding that the plain language of the statute is clear that the home state of a child who is less than six months of age is the one in which he or she lived from birth with a parent. As a matter of first impression, the court looked at what it means for a child to “live” within the meaning of the statute governing home state jurisdiction. Specifically, the court was asked to decide whether the child’s physical presence in Hawaii from his birth until the day before the proceedings were commenced constitutes where the child “lived” for purposes of determining home state jurisdiction.
The court looked to other jurisdictions for assistance, since no California court has addressed the issue, and it ultimately determined that the mother’s intent is irrelevant for purposes of making this decision. The court held that Hawaii has home state jurisdiction, and the child’s appearance in California for 24 hours prior to the commencement of the parentage proceedings does not affect that decision.
This case nicely illustrates the complicated nature of child custody proceedings, whether or not it is part of a larger divorce case. An experienced family lawyer can help parties sort through the legal disputes and protect one’s rights every step of the way. Roy M. Doppelt is a seasoned divorce attorney who has more than 20 years of experience assisting clients in San Diego and throughout the State of California with all of their family law needs. To schedule a free confidential consultation, call Doppelt and Forney, APLC toll-free at (800) ROY IS IT (769-4748) or contact us through the law firm’s website.
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