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Child Custody Jurisdiction in California Family Court, Part II

 Brian Pakpour      May 26, 2015

child custodyWhere to file your California child custody case isn’t always as simple as it might seem, as I discussed in the last post on this blog: Child Custody Jurisdiction in California Family Court, Part I.

In Part II, I will explain the first and most common way in which parties establish the court’s jurisdiction over their child custody matter.

The first method of establishing child custody jurisdiction in California and almost all other states is via “Home State” jurisdiction.

“Home State” Child Custody Jurisdiction

Under Family Code section 3421(a)(1), California has jurisdiction over the child custody matter if it is “the home state of the child on the date of the commencement of the proceeding, or was the home state of the child within six months before the commencement of the proceeding and the child is absent from this state but a parent or person acting as a parent continues to live in this state.”

The conjunction “or” should key you to the fact that, under this statute, there are two ways in which you establish jurisdiction.

You must prove either (1) California is currently the home state of the child on the date of the commencement of the proceedings, or (2) California was the home state within the last six months.

You should be asking by now: What exactly is a “home state”?

Under Family Code section 3402(g), “home state” 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.”

If you’re wondering what happens if the child is not yet even six months old, or has never lived somewhere for six consecutive months, or at least not for a very long time, that will be addressed in another part of this series.

California is the Current Home State of the Child

Given the laws above, if your child has been living with you, the other parent, or someone acting as a parent for the six months proceeding commencement of the proceedings, California has jurisdiction over child custody. A period of temporary absence of any of the persons above is part of the period, under Family Code section 3402(g).

Here are some examples where California has jurisdiction under this law.

  1. Mother, Father and child live in California, and have lived here for the last two years. No one has moved, and Mother files for child custody orders.
  2. Mother, Father and child live in California, and have lived here for the last two years. Father moves to Nevada, but Mother and child remain in California. Child visits Father in Nevada frequently, but the child’s primary residence remains California. Mother then files for child custody orders.
  3. Mother, Father and child live in Nevada, and have lived there for the last two years. Father moves to California with child, but Mother remains in Nevada. Child visits Mother in Nevada frequently. Seven months after moving, Father files for child custody orders.

Here are some examples where California does not have jurisdiction under this law.

  1. Mother, Father and child live in Nevada, and have lived there for the last two years. Mother moves to California and lives there for seven months, however the child remains in Nevada with Father. Mother then files for child custody orders in California.
  2. Mother, Father and child live in California, and have lived here for the last two years. Father moves to Nevada and takes the child with him. Seven months later, Mother files for child custody orders in California.
  3. Mother, Father and child live in Nevada, and have lived there for the last two years. Father moves to California, but Mother remains in Nevada with the child. Seven months later, child visits Father in California for one week and, while there, Father files for child custody orders in California.
  4. Mother, Father and child live in South Dakota for two years. They then move together to Texas and live there for three months. They then move together to Oregon and live there for four months. Mother then moves to California with the Child and files for child custody orders. (California may have jurisdiction under another subsection of Family Code section 3421 however.)

California Was the Home State of the Child

The other prong of 3421(a)(1) that secures jurisdiction in California is when California was the home state of the child within six months before the commencement of the proceeding and the child is absent from this state but a parent or person acting as a parent continues to live in this state.”

The conjunction “and” should clue you to the fact that, in order to prove jurisdiction here, you must demonstrate two thing to be true: first, California qualified as the home state of the child within six months of commencing the court action, and the child is not here any longer, but at least one parent, or person acting as a parent, such as a guardian, still lives here.

Here are some examples where California has jurisdiction under this law:

  1. Mother, Father, and child live in California for two years. Father and child move to Nevada and live there for five months. At that point, Mother files for child custody orders in California.
  2. Mother, Father, and child live in Nevada for two years. Mother, Father, and child move to California and live here for five months. At that point, Mother files for child custody orders. (Nevada no longer has jurisdiction because no one lives there anymore. This is a case wherein there is no home state.)

Here are some examples where California does not have jurisdiction under this law:

  1. Mother, Father, and Child live in Nevada for two years. Mother moves to California with child and lives there for five months. At that point, Mother files for child custody orders in California. (Nevada still has jurisdiction because Father still lives there, and child has not yet lived in California for six months.)
  2. Mother, Father, and Child live in Nevada for two years. Mother moves to California and lives there for one year, but the child stays with Father in Nevada. The child then moves in with Mother in California and lives there for five months. At that point, Mother files for child custody orders. (Nevada still has jurisdiction because Father still lives there, and child has not yet lived in California for six months, even if Mother has.)
  3. Mother, Father, and Child live in California for two years. The family then moves together to Oregon for three months. The family then moves together to Colorado for four months. Mother then moves to California with the child, lives there for two months, and files for child custody orders. (California may have jurisdiction under another subsection of Family Code section 3421 however.)

Hopefully, the examples have been helpful in determining when California has “home state” jurisdiction over your child custody matter, and when it does not.

This is not a simple issue, and you would do well to have an attorney assist you with the process, should jurisdiction be in doubt. Keep in mind as well that, although California may not have jurisdiction under Family Code section 3421(a)(1), it may have jurisdiction under Family Code sections 3421(a)(2), (3), or (4), which will be examined in the next three blog posts over the next few weeks.

Call Pakpour Family Law today at to discuss date of separation and other divorce issues:
530-302-5444 (Davis)
925-998-7009 (Pleasanton)

We can assist you with any family law matter in the following counties:

Yolo County, Solano County, Placer County, and Sacramento County