Decision of Interest

The Family Court found that New York was the child's home state, based on his place of birth and place of residence prior to the New York filing. However, the court was disparaging toward the mother, accusing her of wrongfully taking her unborn child from California. The court therefore declined to exercise jurisdiction pursuant to the UCCJEA, ceding that authority to the courts of California.

On appeal, the First Department found that the father's Nov. 15, 2012, custody petition was not properly heard because, under the UCCJEA, courts cannot exercise jurisdiction over custody matters involving unborn children. See, e.g., Walternburg v. Waltenburg, 270 SW3d 308 (Tex.App. 5Th Dist 2008). The appellate court was also not convinced that the mother, by moving out of California, had engaged in “unjustifiable conduct” to gain the New York Family Court's jurisdiction.

In this regard, it noted that although “unjustifiable conduct” is not defined by statute, courts generally apply this provision only where a child has been removed contrary to an existing custody order. Such was not yet in place at the time of the mother's move. “We therefore, disagree with the Referee's finding that the mother's 'appropriation of the child while in utero was irresponsible' and 'reprehensible' and warranted a declination of jurisdiction in favor of the California court,” wrote the court. “Rather, the mother's conduct at issue here amounts to nothing more than her decision to relocate to New York during her pregnancy. Further, we reject the Referee's apparent suggestion that, prior to her relocation, the mother needed to somehow arrange her relocation with the father with whom she had only a brief romantic relationship. Putative fathers have neither the right nor the ability to restrict a pregnant woman from her constitutionally-protected liberty.”

'Reprehensible' Move to New York Was Nothing of The Kind

After finding that the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) required a different outcome, the Appellate Division, First Department, unanimously reversed the order of Family Court, New York County (Fiordaliza A. Rodriguez, Referee) that granted a father's motion to dismiss the mother's New York custody petition so that a California court's custody determination could stand.

The unmarried parents conceived their child in California, but their relationship did not last and the mother moved to New York while pregnant. The father sought and obtained an order granting physical custody to him through the California courts prior to the child's birth. The child was born in New York and resided there with his mother until she filed her own petition seeking custody. That petition was filed when the baby was two days old.

The Family Court found that New York was the child's home state, based on his place of birth and place of residence prior to the New York filing. However, the court was disparaging toward the mother, accusing her of wrongfully taking her unborn child from California. The court therefore declined to exercise jurisdiction pursuant to the UCCJEA, ceding that authority to the courts of California.

On appeal, the First Department found that the father's Nov. 15, 2012, custody petition was not properly heard because, under the UCCJEA, courts cannot exercise jurisdiction over custody matters involving unborn children. S ee, e.g., Walternburg v. Waltenburg , 270 SW3d 308 (Tex.App. 5Th Dist 2008). The appellate court was also not convinced that the mother, by moving out of California, had engaged in “unjustifiable conduct” to gain the New York Family Court's jurisdiction.

In this regard, it noted that although “unjustifiable conduct” is not defined by statute, courts generally apply this provision only where a child has been removed contrary to an existing custody order. Such was not yet in place at the time of the mother's move. “We therefore, disagree with the Referee's finding that the mother's 'appropriation of the child while in utero was irresponsible' and 'reprehensible' and warranted a declination of jurisdiction in favor of the California court,” wrote the court. “Rather, the mother's conduct at issue here amounts to nothing more than her decision to relocate to New York during her pregnancy. Further, we reject the Referee's apparent suggestion that, prior to her relocation, the mother needed to somehow arrange her relocation with the father with whom she had only a brief romantic relationship. Putative fathers have neither the right nor the ability to restrict a pregnant woman from her constitutionally-protected liberty.”