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Ocegueda v. Perreira

California Court of Appeals, Third District, Yolo

January 5, 2015

JOSEPH M. OCEGUEDA, Plaintiff and Respondent,
v.
CHERISSE PERREIRA, Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Yolo County, No. SF121866 Samuel T. McAdam, Judge.

Page 1080

[Copyrighted Material Omitted]

Page 1081

COUNSEL

Frank E. Dougherty for Defendant and Appellant.

William D. Kopper for Plaintiff and Respondent.

OPINION

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 (mother), then traveled to California with his mother, where, within 24 hours of his arrival, custody proceedings were commenced by his father (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.

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BACKGROUND

Mother was born in Hawaii and lived there until 2007, when, at the age of 22, she moved to California. Mother and father began dating in December 2010; shortly thereafter, mother moved into father’s home in Woodland, California. The relationship was “troubled”; father often drank alcohol to excess, which resulted in “problems.” Mother described one incident when she was pregnant with their child: father was drunk; he took her phone away and punched her in the stomach. In January 2012 father threatened to “kick” mother out of the house. Father denied he ever “violently touched” mother but admitted he occasionally drank to excess.

In June or early July 2012, after she became pregnant, mother told father she intended to move back to Hawaii. Father objected and they argued “for weeks” about her plan. Ultimately they reached an agreement, which mother later said she never intended to honor, that mother would travel to Hawaii for the birth of their child but would return to California two weeks after the child was born. Mother took a temporary leave of absence from her job at Cache Creek Casino and left for Hawaii on or about August 27, 2012.

The child was born on September 14, 2012; father was in Hawaii for the birth. On October 24, 2012, mother traveled to California with the child. The following day, father filed a parentage action in Yolo County. On October 30, 2012, he served mother with the summons and petition. On November 1, 2012, the parties stipulated to joint custody, set a shared parenting plan, and agreed not to travel out of California without the consent of both parties or a court order.

On November 9, 2012, mother notified Yolo County Superior Court that she had filed, or would be filing, a parentage action in Hawaii. On November 16, 2012, Yolo County Superior Court held a UCCJEA telephone conference with the Hawaii court that was not recorded by a court reporter. That same day, the Yolo County Superior Court issued an order noting the two courts agreed California had jurisdiction over the child, but also said that decision was “made without prejudice” and the parties would have an opportunity to challenge that decision at a future hearing.[2] The court then set an evidentiary hearing for November 29, 2012, specifically to address the issues of UCCJEA jurisdiction and custody.

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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 Hawaii 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 stills

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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 ...


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