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9th District: Unborn baby has home state under UCCJEA
TRACEY BLAIR
Legal News Reporter
Published: July 9, 2020
The 9th District Court of Appeals recently found a Medina County Domestic Relations erred by determining an unborn baby did not have a home state under the Uniform Child Custody Jurisdiction and Enforcement Act.
Appellant Trish Veronie and Joseph Van Brocklin Mireles (“Father”) married on May 9, 2015, in Louisiana. Mother and Father lived in Ohio briefly. By the time that Father filed a complaint for divorce on Oct. 28, 2016, however, Mother had returned to Louisiana. Although Father’s employment was based in Louisiana, Father remained in Ohio.
Mother was pregnant with a daughter on the date of filing. O.V. was born on Feb. 11, 2017, in Louisiana. Genetic testing established Father’s paternity. On June 1, 2017, the magistrate determined that under the UCCJEA, Louisiana was O.V.’s home state and, as such, the trial court did not have jurisdiction to make an initial determination of the parties’ parental rights and responsibilities.
Father argued that because the trial court had jurisdiction over Mother, jurisdiction over the unborn child was automatically established with the filing of the complaint for divorce.
On Jan. 1, 2018, the trial court set aside the magistrate’s order without considering the jurisdictional issue presented under the UCCJEA. The trial court adopted the magistrate’s decision, concluding that O.V. did not have a home state as defined by the UCCJEA, and reasoning that she “had not lived with a parent in either Ohio or Louisiana for at least six consecutive months immediately preceding the commencement of the proceeding” because she had not been born when the proceeding commenced.
The trial court designated Father as the residential parent, awarded long-distance parenting time to Mother and ordered Mother to pay child support to Father.
In its analysis, the appellate court first had to determine whether O.V. had a home state and, if so, whether the home state was Ohio or Louisiana.
R.C. 3127.01(B)(7) defines the term “home state” 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 preceding the commencement of a child custody proceeding and, if a child is less than six months old, the state in which the child lived from birth with any of them. A period of temporary absence of any of them is counted as part of the six-month or other period.
Ninth District Judge Lynne Callahan noted in her opinion that the UCCJEA does not explicitly address when a proceeding is initiated before the birth of the child.
However, other courts have determined that because the plain language of the UCCJEA defines a child as “an individual who has not attained 18 years of age,” the UCCJEA does not authorize the exercise of jurisdiction over an unborn child.
“Instead, recognizing that the UCCJEA defines ‘home state’ for a child of less than six months old as the state in which the child has lived from birth with either parent, courts have concluded that under these circumstances, a determination of jurisdiction should be deferred until the date of the child’s birth,” Callahan wrote. “This result acknowledges that all parts of the UCCJEA should be read in such a way as to give meaning to the whole and recognizes the preference for a construction `that finds the existence of a home state, rather than the one that finds that [a child has] no home state.’
“It is also consistent with the only relevant Ohio precedent. In E.B. v. R.F., 6th Dist. Erie No. E-11-045, 2012-Ohio-388, the father of an unborn child filed a paternity action in Arizona before the child’s birth. After the child’s birth, the mother initiated a parenting proceeding in Ohio. The trial court determined that the court in Arizona had jurisdiction, and the mother appealed. Recognizing that R.C. 3127.01(B)(7) defines ‘home state’ as the state in which a child under six months of age has lived with either parent since birth, the court determined that `Arizona cannot be [the child’s] home state. Ohio is [the child’s] home state.’ In this case, the trial court concluded that E.B. is distinguishable because the parenting proceeding in that case arose under R.C. 3109.042. As noted above, however, the jurisdictional requirements of the UCCJEA apply regardless of the statute that governs the proceeding at hand. Although the facts are distinguishable in some respects, the principle espoused by the Sixth District applies with equal force in this case: O.V. was born in Louisiana and lived with Mother there from the date of her birth, so Louisiana is O.V.’s “home state” as defined by R.C. 3127.01(B)(7). Ohio cannot be her home state. “
The panel concluded that a determination of O.V.’s home state should have been deferred until her birth.
Appellate Judge Thomas Teodosio concurred, and 9th District Judge Donna J. Carr dissented.
“Mother has not demonstrated that the trial court erred in determining that Father and the child have a significant connection with Ohio and that substantial evidence is available concerning the factors in R.C. 3127.15(A)(2)(b),” Carr said in her dissenting opinion. “The parties both resided in Ohio from May 2015 through July 2016 and Father continues to reside here. The child was conceived during the parties’ time in Ohio. The trial court noted that even though the child had not yet been brought to Ohio, that was solely due to actions or inactions of Mother. Mother refused to allow Father to see the child and refused to name Father on the child’s birth certificate. Mother refused to follow a court order that required her to bring the child with her to Ohio. Moreover, Mother engaged in extremely deceitful behavior. Mother informed Father that she had placed the child up for adoption when she had not and also told Father that the child had a heart condition that required emergency surgery when the child did not.
“Essentially, it was Mother’s inappropriate conduct that caused the child to spend her entire life outside of Ohio. Such conduct should not be encouraged or rewarded.”
The case is cited Mireles v. Veronie, 2020-Ohio-3078.