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California Family Law Report

 

 

Case of the Month (from CFLR Monthly)

March 2015
[Archive]

Child’s few hours in California before Dad filed suit do not affect home state . . .

 

In reversal, Third District holds that Hawaii is home state of child whose mother went there to give birth and who lived in Hawaii with her for six weeks before they came to California “1 day before” Dad filed his paternity suit

 

Ocegueda v. Perreira

(January 5, 2015)

California Court of Appeal 3 Civil C073176 232 Cal.App.4 th 1079, 181 Cal.Rptr.3d 845, 2015 FA 1672, per Raye, PJ (Hull and Mauro, JJ. Concurring). Yolo County: McAdam, J, reversed and remanded. For appellant: Frank Dougherty, CFLS, (916) 567-0990. For respondent: William Kopper, CFLS, (530) 758-0757. CFLP §H.46.

 

Cherisse Perreira, a 22-year-old lifelong resident of Hawaii, moved to California in 2007. She began dating Joseph Ocegueda in December 2010 and soon moved in with him. However, their relationship was marred by Joseph’s excessive drinking, during which he would become physically abusive. Sometime in the spring of 2012, Cherisse became pregnant with Joseph’s child. By July, she had decided to move back to Hawaii and told Joseph of her intention. When he vigorously opposed that move, Cherisse agreed that she would travel to Hawaii to give birth, but would return to California when the baby was two weeks old. She took a temporary leave from her job, and left for Hawaii on August 27.

 

Joseph was in Hawaii when Cherisse gave birth to their child on September 14. However, mother and child did not travel to California until October 24. On October 25, Joseph filed a paternity action, which he served on Cherisse on October 30. On November 1, the two stipulated to joint custody, set up a parenting schedule, and agreed not to travel from California without mutual consent or court order. On November 9, Cherisse notified the trial court that she had or would be filing a parentage action in Hawaii. A week later, the trial court had a UCCJEA conference call with the Hawaii trial court, after which it issued an order stating that they had agreed that California had UCCJEA jurisdiction, but that Cherisse and/or Joseph could challenge that decision at a later hearing. The trial court then set an evidentiary hearing for November 29 to address UCCJEA jurisdiction and custody issues.

 

At that hearing, Cherisse testified that she had lied to Joseph when she agreed to return to California with their child soon after his birth, that she never intended to return, and that she wanted to raise the boy in Hawaii in a less stressful environment. In a written decision, the trial court found that the evidence did not support Cherisse’s contentions regarding her intention to return to California, since she had decorated a room in Joseph’s house for the baby, had taken no steps to establish a Hawaiian residence, had not looked for work there, and had not quit her California job. Moreover, the trial court noted that Cherisse had stipulated to a parenting plan and restrictions on travel and had not filed her own action until “ ‘several weeks’ ” after she stipulated to joint custody in California. The trial court found that Cherisse’s time in Hawaii was “a temporary absence” and that the baby’s time there was similarly temporary. Thus, the court concluded that California was the baby’s home state because he had lived in this state for 42 days after his birth (his temporary time in Hawaii, plus an additional day before Joseph filed his paternity action). Alternatively, the court reasoned that California was the baby’s home state on the basis of significant connections and substantial evidence regarding his care, protection, training, and personal relationships.

 

Cherisse appealed, and the Third District reversed and remanded for further proceedings.

 

What it means to live . . .
Cherisse contended that the trial court erred by concluding that California was the baby’s home state for UCCJEA purposes. The justices noted that per Fam C §3402(g), the home state of a child who is younger than six months is the state where the child lived from birth with a parent or a person acting as a parent. That clearly means, they continued, that an analysis of the home state of a child less than six months old must begin with the child’s birth. In this case, the panel stated, the baby boy was born in Hawaii; thus, California could not be his home state. Besides being born in Hawaii, the justices went on, the baby also lived there with Cherisse until one day before Joseph filed his paternity action. The panel was aware that no prior California case had specifically “determined what it means ‘to live’ in a state for purposes of home state jurisdiction . . . .” However, in Powell v. Stover (Tex. 2005) 165 S.W.3d 322, the Texas Supreme Court reasoned that to live in that state “ ‘strongly connotes physical presence’ ” and that the analysis re living in the state was not the same as the analysis for determining whether a person resided in the state. In addition, that court believed that the determination of the child’s home state for UCCJEA purposes should be based on objective factors, not on the parents’ subjective intent. The justices here found the Texas court’s analysis re determining where a child lives to be persuasive and also, to be in line with the reasoning of other state courts that had considered the same issue.

 

Can’t live there without being there . . .
With that in mind, the panel disagreed with Joseph’s contention that living in a state means that a person intends to make that state his or her permanent residence, as well as with his assertion that Cherisse’s previously expressed intent to be in Hawaii only temporarily should determine where their son lived. They found In re Marriage of Nurie (2009) 176 Cal.App.4 th 478, 98 Cal.Rptr.3d 200, 2009 CFLR 11300, 2009 FA 1404, on which Joseph had relied, to be factually distinguishable because it had not addressed the issue of what it means to live in a state, and the other cases on which he had relied to be inapplicable. As for the child’s having spent 24 hours in California before Joseph filed his action, the panel determined that this time had no effect on the determination of his home state, since he was not physically present in this state for any appreciable amount of time and thus, could not be said to have lived here. Summing up, the justices reiterated that the child here was born in Hawaii, lived there with his mother for five weeks before coming to California, and was in this state only 24 hours before his father filed a paternity action. Given all that, the panel held that the child’s home state is Hawaii and the trial court there had UCCJEA jurisdiction, which it had not declined to exercise. Accordingly, the panel reversed the trial court’s orders regarding home state, UCCJEA jurisdiction, and custody, and directed that court to “conduct further proceedings consistent with the UCCJEA and this opinion.”

 

 

Comment

  

At a time in the past, attorneys (and others) were asked what the meaning of “is” is. Mercifully, that time has passed. Now, however, these justices were asked to determine the meaning of “lived” as it pertains to a child’s home state in a UCCJEA action. This question involves somewhat less drama than the question of the meaning of “is” (except for the parties involved), but it is an important one nevertheless. The justices tell us that living someplace is not the same as residing or being domiciled someplace. The latter requires a court to delve into the intent of the person to remain in that location, which necessarily involves the intent of the parent where the child is an infant. The panel does not believe that it is necessary to consider intent to remain in analyzing whether someone lives in a place. However, it does require that the person be physically present in the location. The justices recognize that the issue is a narrow one, but it is one that no prior opinion has addressed. This opinion now provides the answer to that issue.

 

 

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