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Filed 6/29/21 Thygesen v. Wang CA1/4

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for 

publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or 

ordered published for purposes of rule 8.1115. 

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FOUR

CHRISTOFFER STANFORD THYGESEN,

Plaintiff and Appellant,

v.

KAILIN WANG,

Defendant and Appellant.

A158691

(City & County of San Francisco

Super. Ct. No. FDV-19-814465)

In this custody dispute between Christoffer Stanford Thygesen (father) and Kailin 

Wang (mother), father appeals an order finding that the child’s home state under the

Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), Family Code 

section 3400 et seq.,

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is Utah. Father contends the court erred by reconsidering its prior 

determination that California is the child’s home state and by failing to make the 

necessary findings in support of the changed determination. He also argues that the court 

violated his due process rights by peremptorily terminating his examination of mother

and his presentation of evidence at the UCCJEA trial. Mother has filed a cross-appeal 

challenging the court’s reentry of its prior order granting father custody of the child under 

the emergency jurisdiction provision of the UCCJEA. We conclude that the trial court’s 

initial jurisdictional finding under the UCCJEA was binding on mother under section 

3406 so that the court erred in considering mother’s subsequent untimely objection to 

jurisdiction. The order must be reversed and the matter remanded for further proceedings, 

1 All statutory references are to the Family Code unless otherwise noted.
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so we do not reach father’s remaining arguments nor do we address the merits of 

mother’s cross-appeal.

Background

Many of the facts at issue in the underlying proceedings are contested. This 

appeal, however, does not require this court to resolve those factual disputes. We rely 

only on those facts not reasonably subject to dispute.2

The parties’ son was born in November 2018 in Utah. It is undisputed that father 

was residing in San Francisco, California at the time of the child’s birth. Mother testified

that she was residing in Utah at the time of the child’s birth but paperwork completed for 

the birth certificate by mother states that her home address was in Los Angeles, 

California. 

Immediately following the child’s birth, mother initiated a claim with the local 

child support agency in Los Angeles, California, which filed a child support action 

against father in Los Angeles Superior Court. Subsequent testing in that proceeding 

established father’s paternity.

Shortly after commencing the child support action in Los Angeles, mother emailed

father’s counsel suggesting that the parents agree to have the action proceed in San 

Francisco. She explained that she travels between Utah, New York, and California and 

that the child has been between these states since birth.

On February 15, 2019, father initiated the present action under the Domestic 

Violence Prevention Act, section 6200 et seq., in San Francisco, requesting protective 

orders as well as sole legal and physical custody of his son. In support of his request for a 

protective order, father submitted documents evidencing mother’s repeated online 

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In addition, this court will not consider any documents filed in other court 

proceedings or documents filed in the present action after entry of the order on appeal. 

Accordingly, the parties’ requests for judicial notice of these documents are denied. 

Mother’s request for judicial notice of an additional volume of her appendix containing 

such documents is also denied. Father’s motion to strike the “new contentions and legal 

arguments” asserted for the first time in mother’s reply brief is denied as unnecessary.
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cyberstalking and harassment of father. Much if not all of the threatening and harassing 

behavior alleged in the petition involves the child and the petition alleges that the child is 

at risk as a result of mother’s “compulsive, obsessive and abusive behaviors.” The

petition also alleges that mother has a criminal history of domestic violence and at that 

time in Utah was facing electronic harassment charges involving a different victim.

On the same day, father obtained a temporary restraining order against mother. 

The court denied father’s request to make a custody determination at that time, noting in 

the order that the “issue of child custody can be addressed at the hearing [on the 

permanent restraining order set for March 6] if [the] court has jurisdiction.”

On February 19, mother filed a paternity action in New York seeking child support 

and a restraining order against father. Mother did not disclose in her New York petition

the existence of the action she had filed in Los Angeles or the domestic violence action 

pending in San Francisco. Instead, she attested under oath that no prior application had 

been made for the same relief.

On March 4, in the San Francisco proceedings, father submitted a memorandum of 

points and authorities in support of the court’s jurisdiction under the UCCJEA and a 

declaration detailing his unsuccessful attempts to serve mother with the temporary 

restraining order and notice of the March 6 hearing. The declaration explains that after 

investigators located mother with her parents in Utah, father attempted through the Office 

of the Utah County Constable to serve mother at her parents’ home. Affidavits signed by 

constables detail their unsuccessful attempts at service. On three occasions no one 

answered the door. On seven additional occasions, the grandparents told the person 

attempting service that mother did not live there and that they had no contact information 

for her. On February 19, a constable attempted service through mother’s criminal defense 

lawyer, but was refused based on mother’s instructions that her attorney not accept 

service on her behalf. On February 20, father’s attorney emailed mother’s criminal 

defense attorney a copy of the temporary restraining order, which included notice of the 

March 6 hearing. Father’s declaration also states that service was attempted twice at the 
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New York address given to father’s counsel by mother but the process server was 

informed by the manager of the building that mother does not live there.

On March 6, the court continued the hearing on the permanent restraining order 

but issued an amended temporary restraining order awarding father sole custody of the 

child and authorizing him to retrieve the child, with the assistance of local authorities,

from wherever the child might be. Based on mother’s statement on the birth certificate 

and her filing of the paternity action in Los Angeles, the court found that it had 

“jurisdiction to make child custody orders in thiscase under the Uniform Child Custody 

Jurisdiction and EnforcementAct.” The court found further that mother was “given 

reasonable notice and an opportunity to be heard as provided by the laws of the State of 

California.”

At the conclusion of the hearing, the court stated on the record that mother had 

called the court clerk during the course of the hearing. The court asked the clerk whether 

mother had asked to remain on the line for the hearing or indicated a preference regarding 

the date for the continued hearing on the permanent restraining order. The clerk 

responded that she had not, but indicated she would call back. The court found that 

mother’s phone call was not sufficient to excuse service of notice of the date for the 

hearing on a permanent restraining order but “clearly” reflected that she was aware of the 

proceedings.

On March 7, father retrieved his son from the grandparents’ home in Utah. He was 

then required to attend a shelter hearing before a Utah court on March 18. At that hearing, 

at which mother was represented by counsel and was present “at court, but not in the 

courtroom,” the Utah court issued an order finding that “[t]here is a substantial danger to 

the physical health and safety of the child based upon the mother’s social media posts, 

which are found to be irrational and histrionic, the mother’s pending criminal charges, 

and the mother’s threat of killing herself and the child. The court finds that the mother’s 

behaviors are evidence of the mother’s mental instability and immediate risk of harm to 

the child. The child’s physical health or safety may not be protected without removing 
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the child from the custody of the mother.” Since then the child has resided in California 

with his father.

On March 15, mother filed a paternity petition in Utah. In the petition she stated 

under penalty of perjury that her son had resided with her in Utah since his birth. The 

Utah court stayed the case based on California’s prior exercise of custody jurisdiction. At 

the same time, mother’s parents filed a petition for custody or grandparent visitation in 

Utah, in which they alleged, under penalty of perjury, that mother had moved to New 

York and that the child had lived with them in Utah since his birth. The Utah court stayed 

that case as well.

In her response filed on April 5 and at a hearing on May 8 in the San Francisco 

action, mother objected to the court’s jurisdiction over the child and requested an

evidentiary hearing under the UCCJEA. Father argued that the March 6 determination 

was final and not subject to reconsideration under section 3406 of the UCCJEA. 

On June 25, the court held an evidentiary hearing on mother’s objection to 

jurisdiction. Initially, the court concluded that mother’s objection was timely and that the 

prior determination was not binding because it was not made at a contested proceeding.

The court explained, “I can’t see how due process is served if a jurisdictional decision 

under UCCJEA can be made and considered to be final with only evidence presented by 

one side. . . . I know how it played out here, and it just so happened she called in. But 

literally anybody can file a [domestic violence restraining order] request, and they are 

always heard. I hear them every day. They land on my desk, and they are uncontested. 

It’s just the application and a request for a temporary restraining order and whatever 

evidence they presented. [¶] And that would be whether it happened the way it did here 

or even in that situation where I say, ‘Okay.’ ‘Looks like the kid is in California or born 

here,’ and I check the box saying you get your custody visitation orders, and that’s done, 

that’s a done deal, even though if you look at the papers that respondents are served with, 

they get the notice of hearing, they get something called a DV-120 information packet 

that says if you disagree with these orders here is how you come in and contest it. [¶] And 

they would say, ‘Okay. Well, clearly the judge got it wrong on that custody part; so I will 
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come in and follow the directions of my papers I just got served with and then to be told 

‘Sorry. You’re too late on that one issue. You had to do something completely different 

that is not mentioned in these papers.’ [¶] And that’s why I struggle with this idea that my 

determination on March 6 with one side here and the other side not was a final 

determination, and at this point it’s final forever absent an appeal that she would not even 

know to make.”

Mother was the sole witness during the evidentiary portion of the hearing. She 

testified that, other than some “temporary absences,” she had lived in Utah since 2017. 

She has a Utah driver’s license. She files taxes in Utah. She has received public benefits 

in Utah including food stamps and Medicaid since April 2018. In the summer of 2018 she 

enrolled at Utah Valley University paying “in-state” tuition. On cross-examination, 

mother was impeached with her numerous contradictory statements contained in her 

filings in the New York and Los Angeles actions. Over father’s objection, the court cut

his cross-examination short, indicating that the court was out of time. Following a few 

minutes for redirect, the court issued its ruling. The court stated, “[H]aving taken 

everything into account and having listened to respondent’s testimony, while I have some 

difficulty with her credibility on a number of issues, I do find that Utah is the home state.

I think [the child] was born there. He lived there for, by my count, about 70 days out of 

80, between his birth and the date that this action was initiated in mid February. There 

was some indication that he -- from emails -- that he was back and forth between other 

states, but none of the other evidence suggests that. [¶] So my conclusion is that custody 

and visitation issues will have to be litigated and decided by a Utah court. [¶] So as I 

mentioned earlier, again, I make that determination based on everything that I heard and 

notwithstanding some concerns I have about the credibility of the respondent’s testimony 

and some contradictory emails and communications, I think a great weight of the 

evidence supports that the child was in Utah almost continuously up until the day he was 

-- when this action was initiated.”

A written order confirming the ruling was filed on July 18. The order provides in 

relevant part: “On the threshold question of whether procedurally the court can properly 
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revisit the finding of home state made in March, that finding was issued without evidence 

from one side, which is typical for [domestic violence restraining orders]. Like almost all 

orders issued on an ex parte basis and certainly those under the Domestic Violence 

Prevention Act, the order issued was temporary, pending a contested, evidentiary hearing. 

With mother’s first appearance in this case, through her response filed on April 5th, she 

raised a challenge to, among other things, the jurisdictional basis of the court’s custody 

orders included in the March 6th TRO. [¶] . . . Because mother is able to challenge the 

request for a permanent restraining order on any basis, the court finds that she did not 

waive her right to challenge any part of the TRO issued on March 6th by failing to file a 

motion to reconsider or to appeal. This includes the issue of custody jurisdiction, and the 

underlying custody and visitation orders.” The court’s written order also provides under 

the emergency custody jurisdiction of the UCCJEA that “the current custody orders, 

awarding sole legal and physical custody . . . to father, will remain in place until this 

matter is taken up by the court in Utah.”

Father timely filed a notice of appeal challenging the home state determination and 

mother timely filed a notice of cross-appeal challenging the emergency custody order.

Discussion

1. The UCCJEA

The UCCJEA provides the exclusive means for determining the proper forum and 

subject matter jurisdiction for child custody proceedings involving two states. (§ 3421.) 

“The UCCJEA is designed to avoid jurisdictional conflicts between states and relitigation 

of custody decisions, promote cooperation between states, and facilitate enforcement of 

another state’s custody decrees.” (In re R.L. (2016) 4 Cal.App.5th 125, 136, disagreed 

with on other ground by In re J.W. (2020) 53 Cal.App.5th 347, 366–367.)

As relevant here, jurisdiction is proper in California if California is the “home 

state of the child” or alternatively, if no other state qualifies at the child’s home state and 
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the child and at least one parent have a “significant connection” with California. (§ 3421, 

subd. (a)(1), (a)(2).)3

“Home state” under the UCCJEA means “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. In the case of a child less than 

six months of age, the term means the state in which the child lived from birth with any 

of the persons mentioned. A period of temporary absence of any of the mentioned 

persons is part of the period.” (§ 3402, subd. (g).)

A court without jurisdiction under section 3421, subdivision (a), may exercise 

“temporary emergency jurisdiction” when a “child is present in this state and . . . it is 

necessary in an emergency to protect the child because the child . . . is subjected to, or 

threatened with, mistreatment or abuse.” (§ 3424, subd. (a).)

An initial custody determination under the UCCJEA becomes binding on all 

parties duly served with a copy of the order who had notice and an opportunity to 

3 Section 3421, subdivision (a) reads in relevant part: “[A] court of this state has 

jurisdiction to make an initial child custody determination only if any of the following are 

true: [¶] (1) This state 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. [¶] (2) A court of another state 

does not have jurisdiction under paragraph (1), or a court of the home state of the child 

has declined to exercise jurisdiction on the grounds that this state is the more appropriate 

forum under Section 3427 or 3428, and both of the following are true: [¶] (A) The child 

and the child’s parents, or the child and at least one parent or a person acting as a parent, 

have a significant connection with this state other than mere physical presence.

[¶] (B) Substantial evidence is available in this state concerning the child’s care, 

protection, training, and personal relationships. [¶] (3) All courts having jurisdiction 

under paragraph (1) or (2) have declined to exercise jurisdiction on the ground that a 

court of this state is the more appropriate forum to determine the custody of the child 

under Section 3427 or 3428. [¶] (4) No court of any other state would have jurisdiction 

under the criteria specified in paragraph (1), (2), or (3).”
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participate in the hearing. (§ 3406.)4 The “[n]otice required for the exercise of jurisdiction 

when a person is outside this state may be given in a manner prescribed by the law of this 

state for service of process or by the law of the state in which the service is made. Notice 

must be given in a manner reasonably calculated to give actual notice but may be by 

publication if other means are not effective.” (§ 3408, subd. (a).) As such, section 3408 

authorizes the giving of UCCJEA notice by a method that would not suffice for formal 

service of process so long as that method is reasonably calculated to give actual notice. 

(See In re Marriage of Nurie (2009) 176 Cal.App.4th 478, 494 [notifying mother’s

attorney of record in open court “clearly satisfied” section 3408 requirement], disagreed 

with on other ground by Schneer v. Llaurado (2015) 242 Cal.App.4th 1276, 1283 & 

fn. 2.)

Once a court has made a child custody determination consistent with section 3421, 

that court has “exclusive, continuing jurisdiction over the determination until either of the 

following occurs: [¶] (1) A court of this state determines that neither the child, nor the 

child and one parent, nor the child and a person acting as a parent have a significant 

connection with this state and that substantial evidence is no longer available in this state 

concerning the child’s care, protection, training, and personal relationships. [¶] (2) A 

court of this state or a court of another state determines that the child, the child’s parents, 

and any person acting as a parent do not presently reside in this state.” (§ 3422, 

subd. (a).) 

An order determining jurisdiction under the UCCJEA is an appealable order. (See

Schneer v. Llaurado, supra, 242 Cal.App.4th at p. 1279 [reviewing family court order 

finding California lacks jurisdiction under the UCCJEA to make an initial child custody 

4 Section 3406 provides: “A child custody determination made by a court of this 

state that had jurisdiction under this part binds all persons who have been served in 

accordance with the laws of this state or notified in accordance with Section 3408 or who 

have submitted to the jurisdiction of the court, and who have been given an opportunity 

to be heard. As to those persons, the determination is conclusive as to all decided issues 

of law and fact except to the extent the determination is modified.”
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determination regarding daughter], disagreed with on other ground by In re J.W. (2020) 

53 Cal.App.5th 347, 366–367; In re Marriage of Sareen (2007) 153 Cal.App.4th 371, 

376 [reviewing order granting motion to quash jurisdiction under the UCCJEA], 

disagreed with on other ground by Schneer v. Llaurado (2015) 242 Cal.App.4th 1276, 

1283 & fn. 2.)

2. Father’s Appeal

In its March 6 order, the court expressly found that it had “jurisdiction to make 

child custody orders in thiscase under the Uniform Child Custody Jurisdiction and 

EnforcementAct” and that mother was “given reasonable notice and an opportunity to be 

heard as provided by the laws of the State of California.”5 On appeal, father contends 

mother’s subsequent objection to jurisdiction was untimely and that the court erred in 

reconsidering its jurisdictional finding. We agree.

Initially, we reject mother’s argument that a challenge to jurisdiction under the 

UCCJEA “may be raised at any time.” The statutory scheme clearly provides that the 

initial jurisdictional finding is binding on those with notice of the proceedings and an 

opportunity to be heard and grants continuing jurisdiction to the California courts until 

certain changes in circumstances are established. (See also In re J.W., supra,

53 Cal.App.5th at p. 365 [UCCJEA does not implicate fundamental jurisdiction and 

challenge to jurisdiction is subject to rules regarding forfeiture].) 

To the extent the trial court’s order suggests that jurisdiction under the UCCJEA is 

subject to reconsideration at a hearing on a permanent restraining order, we disagree.

5 The court did not, as mother suggested at oral argument, refuse to make any 

findings regarding the child’s home state. Mother misreads the portion of the transcript in 

which the court states, “I am going to take off the extra sections on these findings 

because this is being done on an ex parte basis. So I am not making any findings at this 

point other than he’s established, and the court already did that, found that there was 

domestic abuse sufficient to issue a temporary restraining order. I don’t want to make it 

that we’ve done anything beyond that. I haven’t made any findings. There’s been no 

evidence, there has not been an evidentiary proceeding. I don’t want to imply there has.” 

The findings to which the court refers, and which were stricken from the draft order 

presented to the court, were findings regarding mother’s “defaming” father.
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While the custody determination itself is subject to reconsideration, jurisdiction under the 

UCCJEA once established at a hearing for which the opposing party had proper notice 

and an opportunity to be heard persists and remains exclusive until the conditions for 

termination have been met. Mother made no attempt to demonstrate, nor could she, that 

those requirements specified in section 3422, subdivision (a) had been met.

A “child custody proceeding” includes a proceeding for “protection from domestic 

violence.” (§ 3402, subd. (d).) A “child custody determination” includes “a judgment, 

decree, or other order of a court providing for the legal custody, physical custody, or 

visitation with respect to a child. The term includes a permanent, temporary, initial, and 

modification order.” (§ 3402, subd. (c).) Accordingly, when the court issues a temporary 

restraining order awarding custody of the child to a parent, the court makes a “child 

custody determination” at a “child custody proceeding” within the meaning of the 

UCCJEA. To do so, the court is required to determine its jurisdiction—which it did in 

this case. The court is likely correct that a restrained party under a temporary restraining 

order would in the usual circumstances not have notice and an opportunity to be heard 

until the hearing on the permanent restraining order, thus the determination would not be 

binding. The facts in this case, however, are unusual. The relevant question is whether 

mother was given notice and an opportunity to be heard as required by section 3408

before the jurisdictional finding was made.

Mother unquestionably had actual notice of the hearing. While she testified at the 

evidentiary hearing that she randomly called courts in Los Angeles, New York, and San 

Francisco and just happened to reach the San Francisco court during the hearing, the 

court reasonably found her testimony lacked credibility. At oral argument, mother 

acknowledged making the call and admitted that she knew that the hearing was taking 

place because she had searched the court docket. She asserted, however, that she did not 

know that custody of the child was being addressed at the hearing. Mother could not have 

obtained access to the docket in the family law department without knowing the case 

number, which strongly suggests that although avoiding service, she had received the 

father’s notice of the hearing. The notice contained in the temporary restraining order 
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emailed to the attorney representing her in her pending criminal case in Utah expressly 

stated that the court intended to determine its jurisdiction over the child at the hearing.

The docket, of which we take judicial notice, indicated the scheduled hearing and that 

father was requesting “domestic violence protective orders and custody orders.” Mother’s 

failure to take any action in the face of this actual notice renders the court’s jurisdictional 

finding binding. (See In re Marriage of Nurie, supra, 176 Cal.App.4th at p. 494 [where 

mother had actual notice of hearing but failed to appear, “[t]rial court properly found that 

[mother] had an opportunity to be heard and simply failed to avail herself of it”]; In re 

Marriage of Torres (1998) 62 Cal.App.4th 1367, 1380 [court’s jurisdictional finding 

upheld where mother was given notice of the impending custody determination by 

overnight mail and record reflects mother had actual notice of hearing].)

Moreover, mother was served on March 18 with the amended temporary 

restraining order, which included the express finding that she had been given notice and 

an opportunity to be heard before the custody order was entered. Mother took no action to 

appeal or seek to have the trial court revise that order. Rather, on April 5, mother 

submitted a response challenging jurisdiction on the ground that Utah was the child’s 

home state, and on May 18 her attorney appeared at a hearing and argued that mother was 

entitled to challenge jurisdiction at any time. 

While perhaps arising from an unusual procedural circumstance, the result is 

entirely consistent with the purpose of the UCCJEA. The UCCJEA is designed to prevent 

“ ‘ “ ‘the harm done to children by shifting them from state to state to relitigate 

custody.’ ” ’ ” (In re Marriage of Nurie, supra, 176 Cal.App.4th at p. 497.) Exclusive, 

continuing jurisdiction provides certainty and consistent judicial oversight of custody 

determinations. (Id. at p. 501.) Mother’s attempts at forum shopping are entirely 

inconsistent with the purposes of the UCCJEA and all the more reason that one court 

should provide consistent oversight of the child’s custody.

Accordingly, the order finding that Utah is the child’s home state is reversed and 

the matter remanded for further proceedings.
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Disposition

The order is reversed. Father is to recover his costs on appeal.

POLLAK, P. J.

WE CONCUR:

STREETER, J. 

BROWN, J.