Case Update (31 Jan 2024): Kemp v. Centeno; a child’s temporary absence from their home state is based on a totality of the circumstances in Nevada

The parties are parents to a minor child, age 4 at the time of trial, who was born in the Philippines in 2018 to an American father residing in Nevada, and a Filipina mother. The child traveled often to the USA to visit her father. When the parties’ relationship dissolved in 2022, the father filed for custody in the Nevada court. The mother sought to dismiss the custody suit for lack of jurisdiction. The trial court so dismissed it, and the Nevada Supreme Court, in an unpublished decision, affirmed.

The Uniform Child-Custody Jurisdiction and Enforcement Act determines whether Nevada can exercise jurisdiction over a child’s custody. The prioritized basis for doing so is held by the child’s home state. A child’s home state is where that child has resided with a parent, or a person acting as a parent, for the six months immediately preceding the filing the suit, minus any temporary absences. Only if the child has no home state, or if the home state declines to exercise its jurisdiction, will Nevada be able to assume jurisdiction. In this case, the trial court concluded, that the Philippines, not Nevada, was the child’s home state at the time of filing, with Nevada being a temporary absence from that home state, and because the Philippines had not otherwise declined to exercise its jurisdiction, Nevada’s case could not proceed.

The court based its analysis on the fact that it concluded that Nevada was the temporary absence, and not the other way around. It heard all evidence, including from the father who argued that the child’s home state has shifted to Nevada, shown by the mother’s tourist visa to the USA, her alleged intent to live and work in Nevada, the child’s enrollment in Las Vegas school and in dance classes. The court was unconvinced, and looked at the totality of the circumstances to conclude that Nevada was a mere temporary absence, including: of the 4 years that the child had been alive, 3 years and 5 months had been spent in the Philippines; and, she took sporadic vacations to Japan, Vietnam, and various U.S. states, but always returned to the Philippines to the same address.

The Supreme Court concluded that the trial judge did not commit clear error in weighing the facts.