Judge Darwin Did Make a Finding of Where the

Back to the Lower Court for Further Hearings.

Appellant argues that Judge Darwin made no finding of how many days I was in Utah. I disagree. This issue was briefed before Judge Darwin (3 AA 781-83, 787-790; 4 AA 934, 6 AA 1419-1422). Based on the briefs that covered this issue and the evidence at the hearing Judge Darwin found that I was in Utah with my child for “70 out of 80 days” of the relevant time period. It is true that Judge Darwin did not indicate how he calculated that number, but as we shall see it is irrelevant how he calculated it.

The child was born on November 26, 2018. I testified that I had lived continuously at my parents’ home from October, 2017 to the present [June 25, 2019] except for some temporary absences (4 RT:122:22-28; 123:1-8). I testified at the

hearing that I was absent from Utah around January 1 for about “four to seven” days for a New Year’s vacation (June 25 Transcript, 4 RT 156:2-15). I also testified that my parents and I temporarily took the child to California for genetic testing for two days (because I could get an appointment there more quickly than in Utah) (4 RT 137:6-8, 165:28, 166:1-17). I also testified that beginning February 16, 2019 I traveled to New York to see if I could obtain temporary tax accounting work during the tax season (June 25 Transcript, 4 RT 157:7-11) and that I returned to Utah on March 7 when I learned that Christoffer Thygesen was taking my baby by force. Judge Darwin’s calculation was simply that the statutory relevant time period for determining the home state (from birth, November 26, 2018, to the commencement of the child custody proceeding, February 15, 2019) was 80 days (not counting the date of birth). During the relevant time period, around New Years, 2019 I went on a vacation for 4-7 days (June 25 Transcript, 4 RT 156:2-15). My absence from Utah in New York began on February 16, so it was outside the relevant time period for determining the home state (the child custody proceeding had already been commenced on February 15). Thus, if you count my two absences of 2 days and 7 days, I was actually in Utah with the child for 71 days out of the 89 days of the relevant time period. If you disregard the two absences as being temporary, I was in Utah with my child all 80 days of the relevant time period.

Second, there was no evidence introduced at the hearing that the child had ever been outside of Utah except for two days for genetic testing in California. My parents saw [K.W.] “every day, all day, 24 hours a day” from his birth until February 15, (4 RT 137:27-8). That was because the child was in their home with me. So, there was no question in Judge Darwin’s mind where the child was during the relevant time period. Judge Darwin recognized that when he said that the child was “in Utah almost continuously up until the day he was -- when this action was initiated”,20 so when he was making his calculation it is clear he was

calculating how many days I was in Utah with my child.

When Judge Darwin made the statement “70 out of 80” days it is obvious that he did not intend to be precise, but it is equally obvious that he was thoroughly convinced that California was not the home state and Utah was the home state of the child. This Court should not conclude that he made no finding of how much time the child and I were together in Utah, but even if he did not he did make a clear finding that based on the “great weight” of the evidence Utah was the home state.

Appellant tries to make a big deal that the statute requires the child to “live with a parent” [or a person acting as a parent] during the relevant time period; therefore, this court has to know where I lived at all times. First, the child never lived with the father in California at any time (the father’s Declaration was that “he did not know” where the child lived between birth and the commencement of this proceeding”), so California cannot be the home state; Second, under the UCCJEA statute we are trying to determine the home state of the child, not the home state of the parents; Third, where I had lived before the birth of the child (Utah for 2 years) or where I actually lived or intended to live after the commencement of the child custody proceedings (that might depend on where I was able to get a job and whether the job was temporary tax season work, as my jobs for the previous years had been), is absolutely irrelevant under the statute. Ocegueda v. Perreira (Attachment at p. 852-853) and cases collected at Issue 2, subpar. 2d, pp. 47-48 of this Brief); Accord: Powell v. Stover, 165 S.W.3d 322, 326 (Tex. 2005) (quoting

Escobar v. Reisinger,2003-NMCA-047, ¶ 16, 133 N.M. 487, 64 P.3d 514).

a. Under the Statute It is Not Necessary I Live With My Child Every Single Day in Order for the State We Lived in To Be the Child’s Home State.

Appellant argues that I “could not have lived in Utah throughout the time period” (AOB, p.43). Does the statute require that I be with the child for all 80 days of the relevant time period in order for Utah to be the child’s home state? First, the statute expressly excludes temporary absences (Family Code § 3421 (g)). My

vacation of four to seven days was certainly temporary. Can anyone believe I would go on vacation with no job or place to live, without much money, with a round-trip ticket, and not intend to come back to my child. So, even though it appears that Judge Darwin did not treat my vacation as a temporary absence under the statute, he still found that the child and I lived together in Utah for “70 of the 80 days” after birth to the commencement of this proceeding. Second, the statute does not say the child has to be with the parent “continuously” between birth and the commencement date of the child custody proceeding—it only says “lived with from birth.” Judge Darwin had no problem with the fact that I had not been with my child everyday of the 80-day relevant time period. Judge Darwin’s finding of “70 out of 80” day period is conclusive as far as determining the home state of the child is concerned.

b. As Long as My Child’s Stay in Utah Was More Than Just Being Born in a Hospital, Being Born in Utah and Living There With Me For Any Significant Period Makes Utah the Home State of the Child.

Under the statute it is irrelevant whether the child lived with me in Utah after his birth for 10 days or 50 days or 70 days or 80 days (Brewer v. Carter (2013) 218 CA4th 1312, 1317 (Child had been out of state for 72 days); In re Marriage of

Torres (1998) 62 CA4th 1367, 1374 (child out of California for 77 days); Baker v. Tunney, 201 So.3d 1235 (Child was born in Florida and lived there less than two

weeks before mother relocated to New York: Florida was the home state under the UCCJEA).

The fact is the child lived with me in Utah after birth and never lived with the father in California or any other state for any amount of days before February 15—the commencement date of this proceeding. If the child had lived in two different states between birth and the commencement of the proceeding, Appellant might argue that another state (California) had become the home state, but the child lived in only one state and the child was less than six months old when this case was commenced. That makes Utah the home state.

is Irrelevant. Petitioner makes an extensive argument (AOB, pp. 41-43) that my parents do not qualify as a “person acting as a parent” under the definition in the UCCJEA (Family Code §3402(m)) and that since I went to New York when I was in New York the time that the child was with my parents cannot be counted toward Utah jurisdiction. While Respondent does not concede that her parents were not “acting as a parent”, Petitioner’s argument is beside the point. Petitioner has admitted that I was in New York from February 16 to March 15 (and I have testified that I went to New York on February 16 and my parent’s filed a Verified Petition that I went to New York on February 16 to seek employment (Admitted into evidence as Exhibit Z to Petitioner’s Request for Judicial Notice dated June 20, 2019 4 RT 116:5-14; 5 AA 1112 (par. 11). As has been repeated so many times already, the only relevant time period for determining home state UCCJEA subject matter jurisdiction is between the birth of the child and the commencement of this proceeding on February 15. During the relevant time period, my child was in my care, except for a temporary absence New Year’s trip, when the child was in my parents’ care in Utah.

14. Home State Analysis Takes Precedence Over Significant Contact Analysis