Child Custody Disputes: What is My Baby's "Home State?"


By Don Schweitzer

Most parents are unaware that their children have a designated "home state" under the law of every state in this country. A child's home state determines which court has jurisdiction to decide important issues such as legal and physical custody, visitation schedules, and requests by parents to move far away.

To most parents who have child custody disputes, home state jurisdiction is never an issue. However, to some parents the issue of jurisdiction can make all the difference in the world. Imagine, for example, two parents living in different far away states. Further imagine that one of the parents blatantly violates the custody orders, which then requires the other parent to seek immediate relief with the court. Depending on which state has jurisdiction, there can be a huge advantage to one party and a huge disadvantage to the other under such circumstances.

In a recently published court decision*, the California Court of Appeal determined that the state in which the child was born and living in during the age of six months or less and prior to the proceedings would be the child’s home state jurisdiction.

In this case, the unmarried couple had a volatile relationship. The mother told the father she wanted to move with the unborn child to the state of Hawaii where she was from, but the father objected. The parties then agreed that the mother would give birth to the child in Hawaii and then move back to California.

The mother travelled to Hawaii where she gave birth to their child and remained in Hawaii for the following forty-five days. The mother and child then travelled back to California and the day after she arrived, she was served with a Summons and Petition for Parentage and Custody.

At the hearing, the trial court determined California had home state jurisdiction, partially based on the mother’s original intent to live in California after the child was born. However, the Court of Appeal disagreed with the trial court and reversed the ruling. The Court of Appeal held that based on the Family Code, home state jurisdiction for children under the age of 6 months is where the child was born and lived. In this case, the appellate court stated that the mother’s “fleeting appearance” in California did not confer jurisdiction to the California court. Further, the mother’s intent was not relevant.

The lesson learned from this case is that pregnant mothers have a big advantage over the determination of which state will have home state jurisdiction over their child. If a pregnant mother wishes to live somewhere other than California with the child, it would behoove the mother to give birth in the other state and continue to live there for at least six months.

*Ocegueda vs. Perreira