A question was raised today about how a putative father might protect his parental rights to an unborn child when the mother moves to another state prior to birth in an effort to thwart the father's attempts to assert his rights. As I've earlier written, in Michigan the best way a putative father can protect against a mother giving a child up for adoption without his knowledge or consent is to file an intent to claim paternity. [See "How can a man protect his paternity rights if the mother wants to place the child for adoption?"] However, in the absence of a national putative father registry, this is not much of a safeguard.
The issue raised was whether a putative father can file a pre-birth complaint for custody in the state where the child was conceived. Michigan and some other states allow pre-birth paternity suits, but other states do not allow them. Interestingly, there are some state appellate courts that have addressed pre-birth custody suits. The issue is: Does the father have jurisdiction under the UCCJEA to file such a suit? Here is how some states have addressed this issue:
Waltenburg v Waltenburg, 270 SW3d 308 (TX 2008): Father filed in Arizona prior to birth; Mother had moved to Texas and gave birth there. The Texas court said:
“We also conclude the Arizona court had no such jurisdiction because the UCCJEA, as enacted in Arizona, does not apply to an unborn child. [The Court then found TX to be the infant’s home state.] Waltenburg cited with approval In re Brown, 20,3 S.W.3d at 891-92 (Tex.App.-Fort Worth 2006, orig. proceeding). The court noted that as applicable here, in the case of a child less than six months of age, "home state" means "the state in which the child lived from birth with a parent...." TEX. FAM. CODE ANN. § 152.102(7); In re McCoy, 5,2 S.W.3d at 305 (Tex.App.-Corpus Christi 2001, orig. proceeding [mand. denied])
Regarding Arkansas Department of Human Services v. Cox, 349 Ark. 205, 82 S.W.3d 806, 812-13 (2002), the Walternburg court stated:
“The Arkansas Department of Human Services (DHS), under the authority of a Florida court order, seized a child born in Arkansas and, in disobedience of a subsequent Arkansas court order to return the child to her grandmother, delivered the child to Florida authorities. DHS argued the Arkansas court should have given full faith and credit to the Florida order to pick up the child. Id. at 808. The Arkansas Supreme Court disagreed, concluding that Florida did not have jurisdiction in substantial conformity with the UCCJEA because the UCCJEA did not apply to unborn children. Id. at 812-13 (citing UCCJEA's definition of "child").
The Waltenburg Court found the reasoning of Cox, Anselmo, and In re Starks supportive of its conclusion that the text of the UCCJEA precludes its application to unborn children. The court criticized attempts to use vacuum jurisdiction to support pre-birth filing in the mother’s former state where she has moved and will give birth in another state.
Specifically, the court “disagree[d] with the logic set forth Gullett v. Gullett, 992 S.W.2d 866 (Ky. Ct.App.1999). There, a child-custody suit was filed in Kentucky prior to the child's birth in Ohio. The court applied the "no other court has jurisdiction" statutory provision in the Kentucky version of the UCCJEA, and held that Kentucky had jurisdiction because "no other state ... appeared to have custody jurisdiction over the unborn child at the time the dissolution petition was filed." Id. at 870. The Waltenburg court stated:
"Moreover, reading the UCCJEA to authorize jurisdiction over a custody matter concerning an unborn child would defeat the clear purpose underlying the legislature's enactment of the UCCJEA —to prioritize home-state jurisdiction. See Powell, 165 S.W.3d at 325. Under such a reading, a party could file suit pre-birth under the UCCJEA provision authorizing jurisdiction when "no other court has jurisdiction," and use the "simultaneous proceeding" provision to control, post-birth, whether the child's home state can ever exercise that "priority" jurisdiction. We reject this reading of the UCCJEA.
See also, Washington State unpublished opinion In re Marriage of Madison, No 59962-3-1 (2007): Divorce filed in Washington. Wife moved to Illinois and gave birth there. Washington Court declined to exercise custody jurisdiction because Illinois was the child’s home state.
Wisconsin: In re Custody of Kaitlyn Marie Kalbes, 733 NW2d 648, (WI 2007): [Idaho cannot adjudicate custody over child conceived in Idaho, but born in Wisconsin, which is the child’s home state.]