Jurisdiction shopping while pregnant

Posted Sunday, November 3rd, 2019 by Gregory Forman
Filed under Child Custody, Jurisdiction, Not South Carolina Specific, Of Interest to Family Court Litigants, Of Interest to Family Law Attorneys

I recently handled a marital dissolution case in which my client had hightailed it while pregnant to another state. Her husband’s motion for temporary relief sought to have her return to South Carolina in an attempt to force her to bear their child in South Carolina–and thus insure South Carolina had subject matter jurisdiction to address custody.

While the family court can order a party to bring or return a child to South Carolina, it does not have authority to order a party to live in South Carolina. Since my client’s child had not been born yet, the family court could not order her to return. Her child will be born elsewhere and custody will be fought elsewhere.

South Carolina’s determination of paternity statute, S.C. Code § 63-17-10, et. seq, allows paternity actions to be brought prior to the child’s birth. S.C. Code § 63-17-10(D). Fathers in other states have attempted to use similar statutes to establish jurisdiction for child custody in the state where the child was conceived when the mother has left the jurisdiction prior to the child’s birth. So far, they have all failed.

The legal issue is whether a determination of paternity is a custody determination for purposes of the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA). Under the UCCJEA, the home state of the child–which is the state of the child’s birth if the child is a newborn, has priority on jurisdiction for an initial custody determination. Under South Carolina’s version of the UCCJEA, home states is defined as “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.” S.C. Code § 63-15-302 (7). It would appear to require the child’s birth to apply.

Under the UCCJEA, where the child has a home state, home state jurisdiction has priority in any initial child custody proceeding. S.C. Code § 63-3-330(A)(1). However, if one parent still resides in the state where custody was initially determined, that state has continuing jurisdiction to determine custody until it decides to relinquish jurisdiction. S.C. Code § 63-3-332. Thus, if a paternity determination is an initial custody determination, the state where paternity is determined–which can be the state of the child’s conception–can also determine custody if the child is subsequently born in another state. If it’s not, then that state cannot determine custody. Further, some fathers have tried to argue that an unborn child can have a “home state,” thus (in theory) enabling the parties’ last state of residence to determine child custody even if the mother moves prior to the child’s birth.

So far the arguments that paternity determinations qualify as custody determinations or that an unborn child has a “home state” have been uniformly rejected. See Gray v. Gray, 139 So.3d 802 (Al. Ct. App. 2013) (Alabama was not home state for UCCJEA jurisdiction where mother moved to Michigan prior to child’s birth); Arnold v. Price, 365 S.W.3d 455, 461 (Tex.App.2012) (concluding that a homestate determination could not be made at the commencement of a child-custody proceeding when the child was yet unborn and that the state in which the child was later born would become his home state at the time of his birth); B.B. v. A.B., 31 Misc.3d 608, 916 N.Y.S.2d 920 (Sup.Ct.2011) (determining that the home state of a child born in Minnesota after the mother decided not to return to New York after a visit to her childhood home in Minnesota was Minnesota and not New York, where the mother and father had resided as a married couple); Waltenburg v. Waltenburg, 270 S.W.3d 308, 318 (Tex.App.2008) (deciding under the Texas version of the UCCJEA that the UCCJEA “does not authorize jurisdiction over a child custody claim concerning a child before its birth”); In re Custody of Kalbes, 302 Wis.2d 215, 733 N.W.2d 648 (Ct.App.2007) (determining that Idaho did not have jurisdiction under the UCCJEA of a child who was not born at the time the Idaho action was instituted and who was later born in Wisconsin); see also In re Marriage of Tonnessen, 189 Ariz. 225, 227, 941 P.2d 237, 239 (Ct.App. 1997) (determining under the Uniform Child Custody Jurisdiction Act [“UCCJA,” a precursor to the UCCJEA] that Arizona was the home state of a child born in Arizona and stating that “[t]he statute does not contemplate the in utero period of time in determining … home state; it contemplates a postnatal child”); and In re Marriage of Tonnessen, 937 P.2d 863 (Colo.Ct.App.1996) (concluding under the UCCJA that Arizona was the home state of the children born in Arizona after the institution of an action in Colorado).

The rational was best expressed in the Texas Waltenburg case:

[R]eading the UCCJEA to authorize jurisdiction over a custody matter concerning an unborn child would defeat the clear purpose underlying the legislature’s enactment of the UCCJEA — to prioritize home-state jurisdiction. Under such a reading, a party could file suit pre-birth under the UCCJEA provision authorizing jurisdiction when “no other court has jurisdiction,” and use the “simultaneous proceeding” provision to control, post-birth, whether the child’s home state can ever exercise that “priority” jurisdiction. We reject this reading of the UCCJEA.

The upshot is that a pregnant woman, even a married one, who does not wish to litigate child custody in the state where the father lives appears to have the unbridled right to move anywhere else and have child custody determined in the jurisdiction where she lives at the time of the child’s birth. The right to shop for jurisdiction while pregnant appears to be absolute.

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