What is the test for determining custody of a child when the child is in the custody of the state where the child was born?

California, United States of America


The following excerpt is from Titus v. Superior Court, 100 Cal.Rptr. 477, 23 Cal.App.3d 792 (Cal. App. 1972):

The rationale of Sampsell and the Restatement is that custody is a question of status and hence is subject to the control of the state where the child is domiciled or physically present. The state of a child's domicile is usually 'the one most deeply concerned with his welfare,' and the state where the child is physically present 'has the most immediate concern with him.' (Rest.2d Conflict of Laws, 79; comment, p. 237; Sampsell v. Superior Court, supra, 32 Cal.2d 763, 778--779, 197 P.2d 739.) The Restatement, speaking of the basis of the child's physical presence in the state, observes [23 Cal.App.3d 798] that the courts of that state 'have direct access to the child and may be most qualified to decide what will best redound to his welfare.' (Rest., supra; see In re Kosh, 105 Cal.App.2d 418, 421--423, 233 P.2d 598.)

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