Application of the Statute to the Facts in This Case

Section 3421 discusses the [subject matter] jurisdiction of a California court to make a “child custody determination.” The statute defines a “child custody determination” as any “judgment, decree or other order” of a court “providing for the legal custody, physical custody or visitation with respect to a child” (Section 3402 (c)). Petitioner’s Request for a DVRO attaching requests for custody and visitation orders made it a “child custody proceeding” and Judge Darwin’s order awarding temporary custody on March 6 was a “child custody determination” as defined by the California UCCJEA.

The fact that the order awarding custody and denying visitation was not done as a result of the traditional initiation of a lawsuit for paternity, custody and child support is irrelevant because the California UCCJEA defines “child custody proceeding” broadly to include a proceeding for “protection from domestic violence, in which the issue [legal custody, physical custody or visitation with respect to a child] may appear. In other words, the fact that child custody was awarded and visitation denied as part of a request for a domestic violence protection order does not change the fact that it was a “child custody proceeding” under the UCCJEA and a California court does not have subject matter jurisdiction to make a “child custody determination” unless California is the home state of the child.

a. This is a Very Simple Case—Really ! Appellant and his attorneys have done their best to complicate this case, both at the trial level and now at the appellate level, but this case is very simple if this Court keeps two guide stars in mind: (1) My child was born in and lived in one state between birth and the commencement date of this proceeding (Utah). This is not a “two state” case where the child was born in one state and moved to another state before the commencement of the proceeding and the court has to try to determine which of the two states is the home state of the child; (2) The statute says the court must look at where the “child” lived in the period before the commencement date of the proceeding “with a parent.” The father always lived in California and the child never lived with him before the commencement date of this proceeding; therefore California cannot be the home state. Remember the statute requires the court to determine the home state of the “child,” not the home state of the “parent.”

b. The home state of the child is determined by an analysis of where the child lived before the “commencement” date of the child custody proceeding (Family Code 3402(g)). “Commencement” is defined as the filing of the first pleading in a proceeding—Family Code § 3402(e). In the case of a child less than 6 months old at the time of the commencement of the proceeding, it is the State where the child lived between the time of birth and the “commencement” of the “child custody proceeding” (Family Code § 3402 (g)) (In re Nurie, (2009) 176 Cal.App.4th

478 (“Under the UCCJEA, the state with absolute priority to render an initial child

custody determination is the child’s home state on the date of the commencement of the first custody proceeding” (p. 491)); In re Sareen (2007) 153 Cal.App.4th ₃₇₁

(2007) (child was not born in California and wife and child had lived in California

for less than 3 months before the commencement of the child custody proceeding; therefore, California was not the home state of the child and California did not have jurisdiction); ; In re A.C. (2005) 130 Cal.App.4th 854 (A child was born in Mexico

and the child and his parents lived in Tijuana, Mexico. The mother and child were involved in a serious automobile accident in Tijuana. The child was brought to

Sacramento, California for medical treatment. The Sacramento County child welfare agency filed a dependency petition to place the child with a foster family. The California Court of Appeals ruled California did not have jurisdiction even though the child was in California on the date of commencement of the child custody proceeding; Mexico was the home state of the child); ; Atkins v. Vigil, 59 P.3d. 255

(Sup. Ct. Alaska 2002) (A child’s home state is determined as of the time an action

commences); In re Calderon-Garza, 81 S.W.3d 899 (Tex. App. 2002) (Texas was home state of child born there and taken to Mexico the day before the proceeding was commenced).

The “child custody proceeding” was “commenced” on February 15, 2019 when Christoffer Thygesen filed his Request for a Domestic Violence Restraining Order attaching requests for sole custody and denying visitation to me. At the time of the commencement of the child custody proceeding, my child [K.W.] was 80 days old (not counting his day of birth), having been born in Utah on November 26, 2018 and having lived with me since birth in the home of my parents in Utah and who continued to live with me until March 7, 2019, (101 days) (legally released to Petitioner on March 18 =112 days) when my child was placed with Petitioner pursuant to Judge Darwin’s illegal custody order (see my Cross-Appeal at the end of this Brief).

c. Both California and other state cases have consistently held that the home state for a child under six months of age at the time of the commencement of the child custody proceeding is the state where the child was BORN. See: Ocegueda v. Perreira (2015) 232 Cal.App.4th _{1079 (2015) (Attached}

as Exhibit B) (Because the child was born in Hawaii and lived in Hawaii with his mother for six weeks following birth before the child was brought to California, Hawaii, not California was the child’s home state); In re Nurie, 176 Cal.App.4th 478 (2009) (Child was born in California and lived there with parents for 5 months

before mother took child to Pakistan for four years; California is the home state);

(“Since Jamie has never lived in California, it is manifest that home state jurisdiction has never been established in this case”); Accord:15 B.B. v. A.B., 916

N.S.2d 920 (Sup.Ct. New York 2011) (holding that the child’s home state was

Minnesota where child was born and continued to reside at time case was filed);

In re M.S., 176 A.3d 1124 (Sup.Ct. Vermont 2017) (“The child had never been

physically present in Vermont at the time the petition was filed and therefore Vermont was not his home state”).; Irving v. Irving, 682. S.W.2d 718 (Tex.App.1985) (Subject matter jurisdiction is based on where the child was born and lived prior to the commencement of the proceeding, not where the child lived after that time); In re S.A.H., 465 S.W.3d 662 (2014) (Child was born in Mexico and after two months the mother brought the child to Texas and filed a custody action. Despite the fact that the child had lived in Texas for longer than it lived in Mexico at the time the court was deciding the case, the Texas court ruled that Mexico was the home state); In re. D.T., 743 A.2d 108-81 (Sup.Ct. Vermont 1999) (Vermont was not the home state of ten-week old child born in Massachusetts and then brought to Vermont because the child had not lived in Vermont “from birth”); Huffaker v.

Huffaker, (Mich. Ct. App. 2013) (Child born in Missouri and taken to Michigan 3

months later. When custody proceeding was filed two months later, child had not lived in Michigan for six months, so home state of the child was Missouri). In Re

Burk, 252 S.W.3d 736, 741 (Tex.App. 2008) (The child was born in Texas and lived

with parents there for nearly three months and then the mother took the child to

15 _{In justification for my citing out-of-state cases I quote Appellant in his Opening Brief:} "Courts should consider out-of-state UCCJEA cases as persuasive authority. See section 3461 (“In applying and construing this Uniform Child Custody Jurisdiction and Enforcement Act, consideration shall be given to the need to promote uniformity of the law with respect to its subject matter among states that enact it.”) See also In re Marriage of Sareen (2007) 153 Cal.App.4th 371, 379 (“Cases interpreting the [UCCJA] including decisions of other states interpreting similar provisions . . . may be persuasive. . .”) See also PGA W. Residential Assn. v. Hulven International Inc. (2017) 14 Cal.App.5th 156, 176, n. 10 (“We are not bound by decisions of sister state courts . . . [h]owever, ‘[i]t is well settled that decisions of sister state courts are particularly persuasive when those decisions construe similar statutes or a uniform act.’”) (AOB, p. 42).

Colorado and lived there for nearly three months before the father filed a petition for custody in Texas. Texas Appeals Court confirmed Texas was the child’s home state because it had been born there and lived there with the parents prior to commencement of the child custody proceeding); Calderon v. Garza, 81 S.W.3d 899, 901 (Tex.App.2000) (Texas was the home state of a child born there and taken to Mexico the day before the commencement of the child custody proceeding in Texas).

d. The parent’s residence, domicile, home state, or intent is irrelevant for determining UCCJEA jurisdiction of the child: See Ocegueda v. Perreira, 232

Cal.App.4th 1079, 181 Cal.Rptr.3d 845, 852-53 (2015) (holding that parent's

subjective intent to remain in state is irrelevant to determining where child "lives" for home-state analysis); See also In Re M.S. (A.3d 176 A.3d 1124 (Vermont

Sup. Ct. 2017) (“We join several other states in holding that it is the child's physical

presence--not a parent or child's residence, domicile or subjective intent-that is relevant to determining a child's home state. Slay v. Calhoun, 772 S.E.2d 425 (2015) (explaining that "`home state' is not synonymous with the residence or domicile of the parent having legal custody"; Dekinderen v. Dekinderen, No.

293443, 2010 WL 99269 (Mich. Ct. App. Jan. 12, 2010) (holding that child's

physical location is central factor to determining home state, not residence or domicile of parent); Carter v. Carter, 276 Neb. 840, 758 N.W.2d 1, 9 (2008) (explaining that child's home state is separate from parents' or child's legal residence); In re Tieri, 283 S.W.3d 889, 893 (Tex. App. 2008) ("In determining where a child lived for the purposes of establishing home state jurisdiction, the trial court must consider the child's physical presence in a state and decline to determine where a child lived based on the child's or the parents' intent.").

3. The Relevant Time Period for Determining the Home State of the Child is From Birth to the Commencement of This Proceeding.

The UCCJEA statute defines the home state of the child as the place where the child lived from birth until the commencement of this proceeding (Family Code 3402 (g)). In the June 25 evidentiary hearing Judge Darwin correctly stated: I do want to hear from the Respondent [me] on these key issues of what was [K.W.]’s home state from date of birth to February 15. That’s what really matters” (4 RT 121: 9-11). The time period from the birth to the date of commencement of this proceeding (November 26, 2018 to February 15, 2019) is 80 days (not counting the day of birth). The time period from birth until the date when my child was illegally removed from me (November 26, 2018 to March 7, 2019) was 101 days. The time period from birth to the date when the Utah court released the child from Utah DCFS temporary custody and placed custody with Petitioner (March 18), was 112 days. Only the first time period is relevant for analyzing the home state of the child.

4. My New York Activities Were Outside the Relevant Time Period and are Irrelevant to Determining the Home State of the Child.

Petitioner/Appellant, in his Opening Brief, and during my cross-examination in the trial court made much of my activities in New York, alleging that I made representations in legal filings that my residence was in New York and that my child was with me in New York. That is simply not true (5 AA 1095-1096). These allegations are without merit nor significance in regard to the home state of my child for the following reasons:

(1) The New York application was for Governmental Child Support Services, not custody (5 AA 1049-1050)16,

16 _{The New York Paternity Pro Se Petition for Child Support Services clearly states:}

“I am hereby applying for child support services from the Support Collection Unit (the IV-D program pursuant to Title 6-A of the Social Services Law) through the filing of this Petition”. (5 AA 1049-1050)

Cal. Fam. Code § 3402 (“(c) "Child custody determination" means a judgment, decree, or

(2) The evidence is undisputed that I did not leave Utah to go to New York to find remote work for employment until February 16, 2019—after the commencement of this proceeding--and, therefore, outside the relevant time period for determining the home state of the child for this case. Both the overwhelming medical evidence in addition to my parents and I have testified to this fact (June 25 Transcript, 4 RT 157: 7-10; 164: 12-14; 5 AA 1112 (par. 11) and Appellant admits it (3 AA 641, lines 2-3). No evidence relating to those activities or any cross-examination in regard thereto should have been permitted at the June 25 evidentiary hearing, but Judge Darwin allowed it then determined that Utah was the home state of the child; (3) My residency in New York was temporary. I testified my trip to New York was to seek employment during tax season (as my previous work assignments in 2016 and 2017 had been) and my parents corroborated it (4 RT 152: 11-23; 164:12-22; 165:1-2; 5 AA 1109-117 (par. 11)). My trip to New York was a “temporary absence” from Utah (and, therefore, should have been ignored under Family Code § 3402 (g);

(4) I testified at the evidentiary hearing three times that my child had never been to New York (or out of the State of Utah, except for 2 days of genetic testing in California (and my medical records and parents corroborated it) (June 25 Transcript, 4 RT 137:6-8, 142:2-3, 162:12-19, 165:28, 166:9-17; 5 AA 1109-1117, pars. 4-11), so New York could not be the home state of the child; and

(5) Appellant now contends that California is the home state, not New York, so Appellant’s allegations that my residence was New York and the child was with me do not support Appellant’s theory that California is the home state of the child. 5. The Burden of Proof on the Home State Issue is on Petitioner [Appellant]

The burden of proof to establish UCCJEA jurisdiction in California is on the Petitioner (In re Baby Boy M (2006) 141 CA 4th 588, 599; 46 CR3d 196, 203

respect to a child. The term includes a permanent, temporary, initial, and modification order. The term does [not] include an order relating to child support or other

(2006), as Judge Darwin recognized (June 25 Transcript, 4 RT 106: 22-27, 110: 6-

7). Petitioner has not provided any affirmative evidence that the child was born outside of Utah or that the child lived in New York or California anytime before March 12, 2019 when my child was illegally removed to California. Indeed, Petitioner has admitted in the Brief filed for the June 25 trial court hearing he did not know where the child lived after birth: “Mr. Thygesen does not know [K.W.]’s [the child’s] whereabouts between the time he was born in November 2018 and the initiation of this case” (Petitioner’s Brief, p. 12, lines 26-27; 4 AA 931). Appellant’s entire argument in this case has been premised on speculation.

6. Petitioner Has Admitted the Child was Born in Utah and Lived There Until After this Child Custody Proceeding was Commenced; Therefore, California Cannot be the Home State of the Child.

In Petitioner’s Brief before the June 25 hearing, he said, “The child was born in Utah on November 26, 2018”. In Appellant’s Opening Brief in this Court he admits, “The parties’ son [K.W.] was born on November 26, 2018 in Utah” (AOB, p. 10; see also 4 AA 921: 17-18) and references the child’s birth certificate showing birth in Utah and the date (5 AA 970). He also admits that this child custody proceeding commenced on February 15 when he filed his Request for a Domestic Violence Order (AOB, pp. 15, 37). Petitioner represented in his original Request for Domestic Violence Restraining Order (DV-100) that the child had “lived with” the mother from “11/16/2018 [birth] to the present” [February 15, 2019] (DV-105, Item 5, 1AA21). In my Declaration filed with Judge Darwin on May 7 I declared under oath that [K.W.] had been born in Utah and lived there with me until he was removed on March 7 (3 AA 787-790). Therefore, under the California Appeals Court Ocegueda case (attached as Exhibit B), California cannot be the home state: There, the court said: “Because the child was born in Hawaii and lived in Hawaii with his mother following his birth, Hawaii is the child’s home state.” (p. 1081). “It is undisputed that here the child was born in Hawaii, not California, therefore, California cannot be the child’s home state.” (p. 1085).

Further, “On the contrary it [Baby Boy M case] expresses a clear view that when a child is less than six months old at the commencement of custody proceedings, where that child was born is not merely relevant in determining the child’s home state—it is essential. Here because the child was born in Hawaii, California cannot be the home state” (p. 1086).

7. The Errors in Judge Darwin’s March 6 Decision.

Despite the fact that Appellant is appealing Judge Darwin’s July 18 Order he argues in his Appeal Brief that Judge Darwin made the correct decision regarding home state in his previous March 6 ex-parte decision. This forces me to use valuable space in this Brief and word count to demonstrate that Judge Darwin’s original March 6 decision was erroneous and that he was fully justified in changing his decision in the June 25 evidentiary hearing.

a. Judge Darwin Made an Obvious Error in Assuming California was the Home State of the Child at the March 6 Hearing Because He Knew the Child Was Born in Utah and Was Under Six Months of Age at the Time of the Commencement of the Proceeding.

In the March 6 hearing, Judge Darwin relied on the misleading representations of Christoffer Thygesen’s attorneys and committed numerous errors in issuing the March 6 sole custody and denial of visitation order.

In Petitioner’s Memorandum of Points and Authorities filed on March 4, before the March 6 hearing, Petitioner argued that there was evidence that I was living in California (based on my address on the birth certificate and the fact that I had applied for child support in Los Angeles) and from that it can be “inferred” that the child is living with his mother in California (2 AA 329: 5-7, 13). Later, at the May 8 hearing, Petitioner’s attorney argued that “presumably” my child was living with me in California (May 8 Transcript, p. 7, lines 6-7, 2 RT 34: 6-7).

On March 6 Judge Darwin said there was not sufficient evidence the child was living in California necessary to exercise emergency jurisdiction under the

UCCJEA (March 6 Transcript, p. 12, lines 26-27, 1 RT 13: 26-27; p. 14, lines 6-28, 1 RT 15: 6-28; p. 15, lines 1-8, 1 RT 16: 1-8), but decided he had authority to issue an order to take physical custody of the child because California was the “home

state” of the child under the UCCJEA as follows:

JUDGE DARWIN: “Okay. I am going to grant part of what you are asking for. So I will reissue—we are going to continue the hearing to allow you to serve

the Respondent. I will modify the temporary restraining order to provide Petitioner sole legal and physical custody of the child on the evidentiary basis that you have just provided to me here: Number one, that he [the father] is the parent based on the genetic testing. And number two, that this is the child’s home state on the basis

of both the birth certificate, statements by the Respondent in the birth certificate, and her initiating of a parentage action in Los Angeles that is currently pending, which would require her to assert and show that this is the home state”. (March 6 Transcript p. 18, lines 14-25; 1 RT 19: 14-25).

It seems that Judge Darwin correctly did not rely on the residence of the father in California as a basis for determining that California was the child’s home state (since the child had never lived with the father), but he did rely on the apparent residence of the mother and her application for child support in California in deciding that California was the home state of the child. But the mother’s actual residence was not in California and electronically applying for child