Ocegueda v. Perreira

Decision Date05 January 2015
Docket NumberC073176
Citation181 Cal.Rptr.3d 845,232 Cal.App.4th 1079
CourtCalifornia Court of Appeals Court of Appeals
PartiesJoseph M. OCEGUEDA, Plaintiff and Respondent, v. Cherisse PERREIRA, Defendant and Appellant.

OPINION TEXT STARTS HERE

Reversed.

See 10 Witkin, Summary of Cal. Law (10th ed. 2005) Parent and Child, § 165.

APPEAL from a judgment of the Superior Court of Yolo County, Samuel T. McAdam, Judge. Reversed. (Super. Ct. No. SF121866)

Frank E. Dougherty for Defendant and Appellant.

William D. Kopper, Davis, for Plaintiff and Respondent.

RAYE, P.J.

The Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), adopted by California as Family Code section 3400 et seq., prescribes when a state court has jurisdiction to make an initial custody determination. Family Code section 3402, subdivision (g) provides with respect to a child less than six months of age that jurisdiction rests in the state in which the child “lived” from birth with a parent or a person acting as a parent.1 That state is denominated the child's “home state.” While other jurisdictional options are provided, home state jurisdiction is paramount.

In this case of first impression, we are asked to decide whether California is the home state of a child who was born in Hawaii, remained in Hawaii for six weeks with his mother, then traveled to California with his mother, where, within 24 hours of his arrival, custody proceedings were commenced by his father in a California court. The answer depends on whether the term “lived,” as it is used in the statute, means simple physical presence in a state or, as father insists, requires an intent to remain in that state.

The trial court determined that mother, who lived and was employed in California prior to the child's birth, went to Hawaii to give birth but intended to return to California. The court thus concluded that mother and the child “lived” in California, and their time in Hawaii was merely a temporary absence from California.

We disagree. We conclude the child lived in Hawaii by virtue of the child's presence in Hawaii for the six weeks following his birth, leaving the state and traveling to California only 24 hours before father initiated these proceedings. We further conclude this fleeting presence in California prior to commencement of these proceedings does not alter the conclusion the child lived in Hawaii.

Because the child was born in Hawaii and lived in Hawaii with his mother following his birth, Hawaii is the child's home state.

The order of dismissal from the Hawaiian court also is not evidence the Hawaiian court refused to exercise home state jurisdiction over this custody dispute because that order was not issued until February 2013, more than two months after the California trial court found California was the child's home state.

At the hearing on November 29, 2012, mother testified she never intended to return to California with the parties' child. Rather, she lied to father so that she could relocate to Hawaii with “less conflict” and raise their son there. The trial court found, however, there was a wealth of evidence that mother's original intent was consistent with the parties' agreement—that she would give birth to their son in Hawaii, then return to California to raise him.

In a written decision, the trial court noted mother never applied for a Hawaiian driver's license, never changed her cell phone coverage, did not move any furniture or personal belongings to Hawaii, did not quit her job in California until after father filed this action, did not seek work in Hawaii, had not begun to look for her own residence in Hawaii, and had decorated the child's room at father's house in California. The court also noted that after father filed this action in California, mother stipulated to a parenting plan and agreed not to travel out of California without father's consent or an order of the court, and she did not file her own action in Hawaii until “several weeks” after she stipulated to joint custody in California.

The trial court thus concluded that mother's stay in Hawaii was only a temporary absence from California: “The fact is that the child lived [in] Hawaii from birth until 1 day before the Court hearing. He lived temporarily 41 days in Hawaii and 1 day permanently in California.” Accordingly, the court ruled: “Here, the child lived in both Hawaii and California prior to the filing of the petition. The mother's stay in Hawaii, however, was a temporary absence. Thus, the time in Hawaii should count towards determination of the home state status. In that case, at the time the action commenced, the child lived in California for all 42 days. Pursuant to Family Code sec. 3421(a)(1), California is the home state of the child and this Court has jurisdiction to make an initial custody determination.”

The trial court also determined that California had jurisdiction to make an initial custody determination because it was the state with the most significant connection to the child under section 3421, subdivision (a)(2). In reaching its decision, the court found father “produced substantial evidence at the hearing concerning the child's care, protection, training and personal relationships.” The court noted that father's whole life” is in California, including his family. The court also found it relevant that mother was still employed in California at the time father filed the petition to initiate these proceedings, and she claimed disability leave insurance benefits from the State of California for her time off work after the child was born. Moreover, many of mother's personal belongings remained in father's home, mother was still welcome to live in father's home, and the child had a nursery in father's home (decorated by mother).

Mother appeals from this order.

DISCUSSION

The only issue on appeal is mother's claim that the trial court erred in finding California was the child's home state under the UCCJEA.

I. Legal Principles

“It is well settled in California that the UCCJEA is the exclusive method of determining subject matter jurisdiction in custody disputes involving other jurisdictions. [Citations.] ( In re Marriage of Sareen (2007) 153 Cal.App.4th 371, 376, 62 Cal.Rptr.3d 687 ( Sareen ).)

We are not bound by the [trial] court's findings regarding subject matter jurisdiction, but rather ‘independently reweigh the jurisdictional facts.’ [Citation.] [S]ubject matter jurisdiction either exists or does not exist at the time the action is commenced’ [citation] and cannot be conferred by stipulation, consent, waiver, or estoppel [citations].” 3 ( In re A.C. (2005) 130 Cal.App.4th 854, 860, 30 Cal.Rptr.3d 431.) “The action is commenced when the first pleading is filed [citations]: here, October 25, 2012. ( Sareen, supra, 153 Cal.App.4th at p. 376, 62 Cal.Rptr.3d 687.)

Section 3421, subdivision (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 live 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).”

Section 3402, subdivision (g) provides the definition for the term “home state” as used in section 3421: ‘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.” (Italics added.)

II. Hawaii is the Child's Home State
A. California cannot be the home state because the child was born in Hawaii.

The statute is clear: “In the case of a child less than six months of age, the term [home state] means the state in which the child lived from birth with [a parent or a person acting as a parent].” (§ 3402, subd. (g), italics added.) Thus, according to the plain language of the statute, the period for determining the home state of a child who is less than six months of age starts with the child's birth. (§ 3402, subd. (g); see Haywood v. Superior Court (2000) 77 Cal.App.4th 949, 955, 92 Cal.Rptr.2d 182 ( Haywood ) [no home state because child was not yet born when custody proceedings were initiated in both Michigan and California].) It is undisputed that here the child was born in Hawaii, not California. Therefore, California cannot be the child's home state.

Father relies on the decision in In re Baby Boy M. (2006) 141 Cal.App.4th 588, 46 Cal.Rptr.3d 196 ( Baby Boy M.) to support his claim that [t]he place of birth is not significant to determine home state jurisdiction.” Father is wrong.

Baby Boy M. was a dependency proceeding in which the whereabouts of the infant child were unknown....

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