Judgekaran.com
The Quagmire
UCCJA UCCJEA PKPA VAWA UIFSA ICARA IPKCA
Uniform Child Custody Jurisdiction Act Uniform Child Custody Jurisdiction Enforcement Act Parental Kidnapping Prevention Act
Violence Against Women Act Uniform Interstate Family Support Act International Child Abduction Remedies Act International Parental Kidnapping Crime Act
History of the UCCJEA
UCCJA first promulgated in 1968 UCCJA adopted in Florida in 1977 Enacted in all 50 states UCCJEA adopted in Florida in 2002
Interstate guidelines as to: Who can do What?
State Adoption of the UCCJEA
Source: StopFamilyAbductionsNow.org
Florida Statute 61.502
The purposes of the UCCJEA are:
(1) Avoid jurisdictional competition and conflict with courts of other states (2) Promote cooperation with the courts of other states (3) Discourage the use of the interstate system (6) Facilitate enforcement of custody decrees of other states.
(4) Deter abductions
(5) Avoid relitigation
(7) Mutual assistance between the courts of this state and those of other states concerned with the same child.
(8) Uniformity
On October 1 2002, Florida’s legislature repealed its Uniform Child Custody Jurisdiction Act (UCCJA) and replaced it with the current statute titled Uniform Child Jurisdiction and Enforcement Act (UCCJEA)
The Substance
Home State Priority Exclusive Jurisdiction Temporary Emergency Jurisdiction
– Basis where victims of abuse temporarily flee – Home state will eventually issue order – Courts communicate
Inter-court Communication
– Detailed procedures/record for appeal
Bases For Jurisdiction Under The UCCJEA
Home State
Significant Connection
More Appropriate Forum “Vacuum” Jurisdiction
Note: Under the UCCJEA, physical presence of, or personal jurisdiction over, a party or a child is not necessary or sufficient to make a child custody determination.
What is the Home State?
The state in which the child lived with one or both parents for at least 6 consecutive months immediately before the proceedings began.
Home State Jurisdiction
The UCCJEA gives home state jurisdiction priority in initial child custody proceedings.
A court has home state jurisdiction if:
1. It is located in the child’s home state (as of the date proceedings are commenced); or 2. It is located in the state that was the child’s home within 6 months of the proceedings’ commencement and the child’s parent (or a person acting as his or her parent) continues to love in the state even after the child has been removed.
Note: This extended home state rule allows a left-behind parent to commence a custody proceeding within 6 months of a child’s removal from the home state.
How do you determine ―Home State?‖
Defined under Fla. Stat. § 61.503 (2007)
– State in which the child lived with a parent or a person acting as a parent for at least 6 consecutive months immediately before the commencement of a child custody proceeding – If a child is less than 6 months old it means the state from which the child has lived since birth – A temporary absence is still part of the period
Other Definitions under Fla. Stat. § 61.503 (2007)
Child
– An individual that has not obtained 18 years of age
Child Custody Proceeding
– Proceeding in which legal custody, physical custody, residential care, or visitation with respect to a child is an issue
Commencement
– Filing of the first pleading in a proceeding
HOME STATE
DID THE CHILD LIVE IN FLORIDA FOR THE LAST 6 CONSECUTIVE MONTHS?
YES
NO WAS FLORIDA THE CHILD'S HOMESTATE SOMETIME WITHIN THE LAST 6 MONTHS? YES
WAS THE CHILD ABSENT BECAUSE OF A TAKING BY ONE PARENT WITH THE OTHER PARENT STILL RESIDING IN FLORIDA?
JURISDICTION
NO
NO JURISDICTION
YES
NO
In 1998, John and Mary married in Tennessee and had a son who is now three years old. They have resided in Florida for the past two years.
Four months ago, Mary and her son went back to Tennessee for what was supposed to be a month long visit. She petitioned for divorce and custody in Tennessee and refused to return the child. Subsequently, John petitioned for divorce and custody in Florida.
Which state is the child’s home state?
FLORIDA
Now suppose that John and Mary had lived in Tennessee until three months ago. At that time, Mary takes the child to Florida and petitions for divorce and custody in Florida. Which state is the child’s home state?
TENNESSEE
Home State Jurisdiction Hypothetical:
A two-year-old child, born and raised in Florida, is abducted by his mother before either parent has filed for custody. The boy and his mother move to New York. Where may the left-behind father file for an initial custody determination?
Home State Jurisdiction Answer:
The left-behind father may file for an initial custody determination in Florida (which has home state jurisdiction for 6 months after the child’s removal).
The child’s absence from Florida does not deprive the State of jurisdiction.
If the mother commences a custody proceeding in New York while Florida is the child’s home state under the UCCJEA, the father can seek dismissal of the New York proceeding based on lack of jurisdiction.
Note: Any valid order the father obtains in Florida is entitled to enforcement in New York.
Significant Connection Jurisdiction
Only in cases in which a child has no home State or the home State declines jurisdiction may another court exercise significant connection jurisdiction.
A court has significant connection jurisdiction if: 1. The child has sufficient ties to the State; and
2. Substantial evidence concerning the child is available in the State. A child need not be physically present in a State for the State to exercise significant connection jurisdiction.
More than one State may have jurisdiction on this basis, but only one State may exercise jurisdiction. Note: The UCCJEA resolves the conflict in favor of the first-filed proceeding.
How Significant are the Connections?
At least one parent lives in this state. Substantial evidence is available in this state concerning the child’s present or future care, protection, training and relationships.
SIGNIFICANT CONNECTIONS
IS THERE NO OTHER STATE THAT HAS HOME STATE JURISDICTION OR DID THE STATE HAVING HOME STATE JURISDICTION DECLINE TO EXERCISE IT BECAUSE FLORIDA IS A BETTER FORUM?
YES
JURISDICTION
DOES THE CHILD, THE CHILD'S PARENT, AND ANY PERSON ACTING AS PARENT PRESENTLY RESIDE IN FLORIDA?
NO
NO JURISDICTION
YES
YES
IS THERE SUBSTANTIAL EVIDENCE IN THIS STATE CONCERNING THE CHILD'S PRESENT OR FUTURE CARE, PROTECTION, TRAINING & PERSONAL RELATIONSHIPS?
NO
Seven years ago, Tony and Carmella were married in New Jersey. They had one child later that year. Six years ago, they moved to Florida. Four years ago, they moved to California. Finally, five months ago, they moved to New York. A few weeks after moving to New York, Carmella decided to leave Tony and move to Florida. She petitions for custody of the child claiming it is in the best interest of the child that Florida exercise jurisdiction because she resides here and, since most of the child’s past 4 years were spent in Florida, there is substantial evidence available here regarding the child’s past and future welfare.
Is there a basis for exercising jurisdiction?
YES, provided no earlier filing, and no other state claims home state status.
Now suppose Tony and Carmella lived in Jersey since they have been married. After separating 6 months ago, they agreed that Carmella could take the child to Florida for the remainder of the school year but that once school was over in June, the child would be returned to Tony. Carmella has petitioned for DOM and custody claiming it is in the best interest of the child that Florida exercise jurisdiction because she resides in the state and substantial evidence is available in Florida as the child’s current teachers, maternal grandparents and other witnesses are in Florida. Tony objects claiming New Jersey is the home state of the child and only Jersey has jurisdiction to determine custody. Does Florida have a basis for invoking jurisdiction?
New Jersey is the home state, and the home state takes priority, but Florida may have significant connections, and if the courts confer, New Jersey may (but is not required to) defer to Florida, since there may be significant connections here.
Is it Really an Emergency?
Physical presence of child REQUIRED Abandonment, Abuse or Neglect Temporary Only
EMERGENCY
IS THE CHILD PHYSICALLY PRESENT IN FLORIDA? YES HAS THE CHILD BEEN ABANDONED? YES
JURISDICTION
NO
NO
YES
IS IT NECESSARY IN AN EMERGENCY TO PROTECT THE CHILD BECAUSE HE HAS BEEN SUBJECTED TO OR THREATENED WITH MISTREATMENT, ABUSE OR IS OTHERWISE NEGLECTED?
NO JURISDICTION
NO
Temporary Emergency Jurisdiction
Courts have temporary emergency jurisdiction when a child in the State has been abandoned or when emergency protection is necessary because a child – or sibling or parent of the child – has been subjected to or is threatened with mistreatment or abuse.
Note: The UCCJEA’s definition of “emergency” excludes neglect cases.
Monica and Chandler were married in 1998. After giving birth to their first child, Chandler became abusive to Monica and the child. Monica decided she would move with the child and attempt to gain custody in Florida. Once in Florida, Monica files an emergency petition for temporary custody claiming the child has been severely beaten on numerous occasions. After a hearing on the matter, the court determines that Monica has presented competent evidence that the child may be abused. Does Florida have jurisdiction?
YES, EMERGENCY JURISDICTION, TEMPORARY ONLY.
Assume the same facts as the prior question, but that Monica does not bring the child with her to Florida and the child is not in Florida when she files her emergency petition. Can Florida still exercise jurisdiction?
NO, CHILD NOT PRESENT.
Jurisdictional Priority
If a question of the existence or exercise of Jurisdiction under the UCCJEA arises, and if a party requests, the jurisdiction issue must be given priority for hearing on the court’s calendar and must be resolved expeditiously Court’s must always resolve jurisdiction first unless under the UCCJEA there is a temporary emergency jurisdiction needed
When No One Else Wants Jurisdiction
Should only be resorted to if no other state could, or would, assume jurisdiction under one of the other three bases for jurisdiction.
NO OTHER STATE EXERCISING JURISDICTION
JURISDICTION
YES
DOES ANY OTHER STATE HAVE JURISDICTION BUT DECLINES TO NO EXERCISE IT ON THE JURISDICTION NO GROUND THAT FLORIDA IS A MORE APPROPRIATE FORUM TO DETERMINE CUSTODY OF THE CHILD? NO YES IS IT IN THE BEST INTEREST OF THE CHILD TO ASSUME JURISDICTION?
More Appropriate Forum Jurisdiction
Exists when both the home State and significant connection State(s) decline jurisdiction in favor of another, more appropriate State on grounds of inconvenient forum or unjustifiable conduct.
“Vacuum” Jurisdiction
If no court has home State, significant connection or more appropriate forum jurisdiction, an alternate court may fill the vacuum and exercise jurisdiction over an initial custody proceeding. Applies to situations in which children fail to remain in any State long enough to form attachments.
Note: Examples include homeless children, children of military personnel, or children sent from relative to relative for temporary care.
In 2000, Bogey and Bacall were married in New York. A year ago, they separated and agreed that their 5 year old daughter would stay with Bogey temporarily while Bacall moved to Florida to live with her parents. Two weeks after Bacall left New York, Bogey took their daughter to Illinois without telling Bacall. Bacall had no idea where her daughter was until Bogey filed for custody 7 months later in Illinois. Once Bacall learned that the child was in Illinois, she immediately filed for custody in Florida. The Illinois court determined that it should not exercise jurisdiction based on their version of the UCCJEA which provides that if the petitioner wrongfully takes the child from another state, the court may decline to exercise jurisdiction. Does Florida have jurisdiction?
SINCE ILLINOIS DECLINED, FLORIDA MAY BE APPROPRIATE.
Assume the same facts but that Bacall agreed to allow Bogey to take the child to Illinois and Illinois has agreed to exercise jurisdiction as the child’s home state because the child had lived in Illinois for over six months when Bogey filed his petition.
If Bacall files a petition for custody in Florida, does Florida have jurisdiction?
NO, HOME STATE WILL PREVAIL
Simultaneous Proceedings
Inquiry by Court Stay Proceedings Judges Communicate and Consider: Inconvenient Forum Unclean Hands Priority of Filing
What about Foreign Jurisdictions?
Child custody determinations made by foreign countries in substantial conformity with the jurisdictional standards of the UCCJEA must be recognized and enforced under the Act’s provisions regarding registration of child custody determinations and the enforcement of such determinations
– However, Florida does not have to recognize child custody determinations if the law of that country violates fundamental principles of human rights
Two Reasons Why a Court Can Decline Jurisdiction Under The UCCJEA
The first is because it determines that the forum is no longer convenient.
The other is based upon unjustifiable conduct of the party seeking the exercise of jurisdiction.
Note: If a court declines to exercise jurisdiction on inconvenient forum grounds the UCCJEA makes it clear that it must retain jurisdiction to transfer the case.
Inconvenient Forum
Used as basis for declining jurisdiction Can be determined at any time prior to issuing decree On motion by party or sua sponte Statutory Factors Recency of other state’s home state status Significance of connections Agreement of Parties Contravention of purposes of act Findings of fact supported by record
Are Their Hands Clean?
Jurisdiction Declined by Reason of Conduct
Applies to Petitioner ONLY Wrongful Taking Other Reprehensible Conduct Best Interest of Child
Fred and Ginger were married in 1985. Ginger filed for divorce and custody in Maine where the parties lived. After the Maine court assumed jurisdiction, Ginger subsequently took the parties’ child to Florida and initiated proceedings in Florida. She never informed the Florida court that proceedings were already pending in Maine. When Fred learned of the Florida action, he immediately informed the Florida court that Maine exercised jurisdiction prior to Florida.
1) What are the proper actions that the Florida court should take at this juncture?
JUDGES SHOULD CONFER BY PHONE TO DECIDE WHERE JURISDICTION LIES
Assume same facts but that Ginger never filed an action in Maine and Fred gave Ginger permission to take the child to Florida for a 9 month visit because he was going to be traveling around the world for business. After 6 months have passed, Ginger petitions a Florida court for custody believing Florida has become the child’s home state. When Fred returns from his trip and while the Florida proceedings are still pending, he petitions for custody in Maine. If after communication with each other, both courts believe that they have jurisdiction and both refuse to relinquish it to the other state, how should the conflict be resolved? FIRST TO FILE SHOULD TAKE PRECEDENCE
To Modify or Not To Modify
Generally, no modification allowed by new state Presumption of continuing jurisdiction in original state
CONSIDERATIONS: Inconvenient Forum Unclean Hands PKPA applies
HAVE BOTH PARENTS LEFT THE STATE WHERE THE INTIAL DECREE WAS RENDERED? NO YES DID THE COURT RENDERING THE INTIAL DECREE EXPRESSLY DETERMINE ON SOME BASIS OTHER THAN THAT STATE'S EQUIVALENT TO §61.517 THAT JURISDICTION WAS NO LONGER APPROPRIATE? NO HAS A STATUTE ENACTED IN THE OTHER STATE TERMINATED THAT STATE'S JURISDICTION? NO HAS JURISDICTION BEEN TERMINATED BY OPERATION OF THE PKPA?
MODIFICATION OF ANOTHER STATE'S CUSTODY DECREE
MODIFICATION ALLOWED DOES THIS COURT HAVE JURISDICTION UNDER FLORIDA LAW? YES
YES
YES NO MODIFICATION NOT ALLOWED NO
YES
Jurisdiction to Modify
Control is with the issuing court. The court may modify if: 1. No substantial connection with the issuing state. 2. None of the parties no longer reside in the issuing state. Only the issuing court can determine the connection.
In 1992, Fred and Wilma obtained a divorce in an Alabama court. Wilma retained custody of their two children. The custody arrangement provided that Wilma would be allowed to take the children to Florida to live with her during the school year but that the children would spend each summer with Fred in Alabama. In 1996, Fred moved to Georgia and continued summer visitation with the children there. After a particularly nasty fight with Fred, Wilma decided to petition a Florida court for sole custody. Fred objects claiming Alabama retains jurisdiction of its valid custody decree and any modification should be done by the Alabama court. Does the Florida court have jurisdiction?
Assume the same facts but that Fred never left Alabama. In addition, during the summer months that Fred had custody of the children, they would often travel throughout the country and rarely spend any time in Alabama. When Wilma filed the custody proceeding in Florida, Fred filed a similar petition in Alabama. However, the Alabama court determined that even though it rendered the initial custody decree, it would not exercise jurisdiction because the children had rarely, if at all, been in Alabama since the divorce and there was very little evidence of the child’s past or future welfare there.
May the Florida court exercise jurisdiction?
A Kentucky court granted Homer and Marge a divorce in 1998. Homer agreed to allow Marge to retain custody but he was granted weekend visitation. One year later, Homer became angry that he could not spend even more time with his children and decided to take them to Florida without Marge’s permission. Homer now seeks a modification of the prior custody decree in Florida claiming Florida is now the home state of the children. Marge remains in Kentucky and objects to the Florida court exercising jurisdiction to modify Kentucky’s valid decree. Does the Florida court have jurisdiction to modify Kentucky’s custody decree?
Recognition and Enforcement of The UCCJEA
A court of this state shall accord full faith and credit to an order issued by another state and consistent with this part which enforces a child custody determination by a court of another state unless the order has been vacated, stayed, or modified by a court having jurisdiction to do so.
Recognition and Enforcement of The UCCJEA Hypothetical:
Jack and Jill met and married in New York. The couple then moved to Florida where their child (Jack Jr.) was born. Jack, Jill and Junior lived in Florida until Junior was ten. At that time, Jack took Junior to New York in an effort to divorce Jill and raise Junior himself. When Jack went to court in New York and requested custody, his request was denied because Florida is Junior’s home state, the state with which he has significant connections, and Jack removed Junior from Florida in an effort to create home state jurisdiction in New York. Jill should go to court in what State and request custody?
Recognition and Enforcement Of The UCCJEA Answer:
Jill should go to court in Florida and request custody, even though Junior is in New York. Having the same law in all states helps achieve consistency in the treatment of custody decrees.
Note: The UCCJEA requires states to give full faith and credit to custody decisions rendered in other states.
Recap of the Ways in Which The UCCJEA Improves Interstate Child Custody Practice
Clarifies where child-custody proceedings should be brought, substantially reducing the number of competing proceedings in sister states. Avoids potential jurisdictional conflicts by making the child’s home state the priority ground for original jurisdiction. Home state court orders will be enforced by all other states.
Provides for continuing exclusive jurisdiction by the original state and temporary emergency jurisdiction by any state. Details interstate enforcement procedures with a range of options, including registration, expedited enforcement, and civil remedies by prosecutors and law enforcement.
Highlights the Safety Needs of Parents and Children Who Are the Victims of Domestic Violence.
First time litigation, the contestants are in Florida. There are no other states involved. Where is jurisdiction?
FLORIDA
Wife is in Florida, the home state. Husband and child disappear from Florida; there is no prior custody order and no action pending in any state. Where is jurisdiction? FLORIDA
Child and husband are in Florida; there is no prior custody order. The wife is in Georgia and Georgia is the home state. Where is jurisdiction? GEORGIA Child and wife are in Florida; there is a custody order in Georgia. Husband is in Georgia which is child’s home state. Where is jurisdiction? GEORGIA
Child and wife are in Florida for the past nine months. Husband is in Georgia; there is a custody order in Alabama. Where is jurisdiction? ALABAMA, UNTIL IT RELINQUISHES, THEN MAYBE FLORIDA
Ricky and Lucy get divorced in Florida and custody is awarded to Lucy. Lucy moves to Georgia and Ricky exercises visitation with Little Ricky in Florida. Lucy files to modify custody in Georgia where Lucy and Little Ricky have lived for several years. Florida has not relinquished jurisdiction.
Should Georgia modify?
NO, FLORIDA RETAINS JURISDICTION.
What if Ricky has moved to Alabama and has exercised visitation with Little Ricky in Alabama over the last three years?
Is Florida still the appropriate jurisdiction? MAYBE IT DOES NOT SEEM APPROPRIATE, BUT FLORIDA RETAINS JURISDICTION UNTIL IT DEFERS TO ANOTHER STATE (Here, probably Alabama, under forum non conveniens)
Giventer
Mother and Father, residents of Florida, enter into a mediated settlement agreement in Broward County for divorce. Mother and minor children then move to Colorado, Father moves to Texas. After experiencing difficulties in visitation rights, Father files motion in Broward court to enforce visitation in accordance with agreement. Mother seeks to prohibit Broward court from exercising further jurisdiction.
Giventer v. Giventer, 863 So. 2d 438 (Fla. 4th DCA 2003). Court held:
– Broward court did have continuing subject matter jurisdiction to enforce visitation. – Under UCCJEA,
Broward Court entered visitation order at a time when it had continuing jurisdiction to enter a modification order. Since no-one still lived in Florida, Colorado could issue a temporary order enforcing visitation provisions.
– Although Father could have initiated proceedings in a Colorado court, Broward court had jurisdiction.
Hirvonen
Mother violates Florida court order prohibiting removal of her child from Broward County. Mother flees to Finland, then secretly makes her way to Texas to reside permanently. Under UCCJEA Enforcement Provisions, mother is arrested, and child is turned over to Father. Mother obtains Texas court order giving her temporary custody. Mother claims Florida lacks jurisdiction over custody of child.
Hirvonen v. Filsinger, 866 So. 2d 1273 (Fla. 4th DCA 2004).
Court held:
– Florida had jurisdiction over custody in the dissolution proceedings, prior to the Mother fleeing to Finland. – Texas court could not have exercised jurisdiction until and unless the jurisdiction in Florida had been relinquished or declined. – The UCCJEA also gives a Florida court ―temporary emergency jurisdiction‖ to protect a child from ―mistreatment.‖ – The mother’s actions constitute ―mistreatment.‖
Sanchez
Mother files petition for adjudication of paternity and an award of custody and child support. Child was born in Colombia and Mother and Child reside in Colombia. Father agrees Mother has custody, therefore no dispute. Trial court dismissed Mother’s petition with prejudice for lack of subject matter jurisdiction under UCCJEA. Mother appeals.
Sanchez v. Fernandez, 915 So. 2d 192 (Fla. 4th DCA 2005)
Court held: – Where the parties did not dispute that the mother retained custody of the minor child, the UCCJEA does not prohibit Florida courts from maintaining subject matter jurisdiction. – The trial court would have been correct in dismissing Mother’s petition had custody been in dispute, invoking the UCCJEA. – In a custody dispute, since Florida was never the home state of the child, Florida would be able to have jurisdiction only if: No other State is the home state of the child or If another State is, it has declined to exercise jurisdiction because this state is a more appropriate forum. Colombia would have to decline to exercise jurisdiction.
Steckler
Mother and Father separate; Mother and three children move to North Dakota. Florida DOM final judgment provides that Mother is primary residential parent; Father has visitation during summers. When Father has trouble exercising his visitation rights, Florida court modifies custody order allowing Father visitation over Christmas 2004 as compensation. Father visits children during Thanksgiving 2004.
Steckler
Following Thanksgiving visit, Mother files petition for protection against DV in N. Dakota claiming abuse by Father during visit. North Dakota court issues two-year domestic violence protection order against husband. Father purchases tickets for children to visit him during Christmas pursuant to Florida modified visitation order; Mother does not send them. Father files motion to enforce visitation order; Mother files motion to stay enforcement proceedings under UCCJEA.
Steckler v. Steckler 921 So. 2d 740
(Fla. 5th DCA 2005).
Court held:
– Since alleged abuse occurred in North Dakota, courts of that state had jurisdiction to issue an order for protection under temporary emergency jurisdiction of the UCCJEA. – Under UCCJEA, Florida retains exclusive, continuing jurisdiction over child custody issues as long as Father is a resident of Florida unless and until Florida relinquishes jurisdiction. – Florida and North Dakota trial court judges should have contacted one another immediately upon finding out about conflicting orders. – Case remanded with instructions for judicial communication and make-up visitation for Father if appropriate.
The Uniform Child Custody Jurisdiction and Enforcement Act treats Indian Tribes the same as other states.
TRUE FALSE
TRUE
CORRECT! Under Florida Statute section 61.505(2), “A court of this state shall treat a tribe as if it were a state of the United States for purposes of applying sections 61.501 – 61.523.”
If the child moves from the state that issued the initial custody decree, a parent may file a petition to modify custody in a court where s/he now resides, even if the other parent has remained behind.
TRUE FALSE
FALSE
CORRECT!
Staats v. McKinnon, 924 So. 2d 82 (Fla. 1st DCA 2006). Where a trial court made an initial custody order over the parties' minor child in the judgment of dissolution, and thereafter, the child went to live with the husband in Tennessee, jurisdiction to modify was still within the Florida trial court's jurisdiction.
The Tennessee trial court erred in exerting jurisdiction over the matter and in making its own custody determinations as it was required to decline jurisdiction under the circumstances.
Physical presence of a child is not necessary to make a child custody determination.
TRUE
FALSE
FALSE
Correct!
See Fla. Stat. 61.514(3) (2006).
The law is well settled that a Florida court has jurisdiction to entertain a petition for dissolution of marriage where the petitioner meets the residency requirements and properly serves process by publication; however, the court does not thereby obtain personal jurisdiction over the out-of-state spouse and child with regard to issues of child custody and support. Cook v. Cook, 524 So. 2d 1100 (Fla. 1st DCA 1988) (citing to Carnes v. Carnes, 256 So. 2d 550 (Fla. 4th DCA 1972); Adams v. Adams, 218 So. 2d 777 (Fla. 1st DCA 1969)).
Hypo 1
Ken and Barbie get married. Everything is great until Ken cheats on Barbie and they get divorced. Barbie in fear of losing the kids takes off to Georgia with the kids and commences child custody proceedings. Ken knowing that she has taken off quickly files in Florida. What state has jurisdiction?
Answer
Florida
– The state who is the home state of the child which means they’ve lived there for the last six months is the state which has jurisdiction. – One of the purposes of the UCCJEA is to eliminate or deter abductions of children
Exactly what Barbie is trying to do here
Hypo 2
Bo Jangles just had a nasty divorce from his wife. They have a new born baby that is only 3 months old. Bo Jangles brings action in his home state of Texas. Meanwhile his wife petition for custody in Florida where Bo Jangles Jr. was born. What result?
Answer
Since the child is only 3 months old the 6 month rule requires you look to where the child was born. In this case Bo Jangles Jr. was born in Florida. Therefore, under the UCCJEA Florida would have subject matter jurisdiction over the proceeding
HYPO 3
Ozzy wants to modify a child custody order that was set in New Hampshire where Lauren lives with the children. Ozzy wants to have visitation rights granted in Florida and claims that Lauren is abusing the children. The children are in Florida for vacation. New Hampshire does not have the UCCJEA. What result?
Answer
This could be an example of Temporary Emergency Jurisdiction.
– If Florida deemed it proper, they may be able to exercise jurisdiction because the children might be in danger with Lauren. The fact that New Hampshire has not adopted the UCCJEA should not have any effect because Florida has adopted the UCCJEA and will follow its rules. – If Florida does not deem emergency jurisdiction proper, then it will give full faith and credit to New Hampshire’s child custody order.
FLORIDA LAW
Florida allows for additional remedies.
– It is a third degree felony to interfere with custody. Fla. Stat. § 787.03 (2006). – It is a third degree felony to remove a minor from the state or conceal a minor contrary to a state agency order or court order. Fla. Stat. § 787.04 (2006).
These offenses have varying punishments.
– First time offenders
Maximum 5 years in prison – see Fla. Stat. § 775.082(3)(d) (2006). $5,000 fine – see Fla. Stat. § 775.083(1)(c) (2006).
– Habitual offenders
Prison term not to exceed 10 years – see Fla. Stat. § 775.084(4)(a)(3) (2006). Prison term not to exceed 10 years, not eligible for release for 5 years – see Fla. Stat. § 775.084(4)(b) (2006). Mandatory 5 year prison term for 3-time offenders – see Fla. Stat. § 775.084(4)(c)(4) (2006).
PARENTAL KIDNAPPING PREVENTION ACT
The United States Congress enacted the Parental Kidnapping Prevention Act (PKPA) in 1980 (28 USC § 1738A).
The PKPA
Provides priority jurisdiction to the child’s home State in parental abduction cases where conflicts arise between two States, Provides for civil remedies, Triggers FBI involvement, and Authorizes the use of the Federal Parent Locator Service.
Prior to PKPA
Traditional child custody law allowed a non-custodial parent to take his or her child from the custodial parent and petition another state for sole custody. This led to a widespread practice of parental kidnapping.
The PKPA provides
“Exclusive continuing jurisdiction” to modify a previous custody decree in the original home state as long as the child or one of the contestants remains in the state. The issue of continuing jurisdiction over the custody of a child then turns on whether a contestant or the child continues to reside in the state.
Family abduction is defined as
“The taking, retention, or concealment of a child or children by a parent, other family member, or their agent, in derogation of the custody rights, including visitation rights, of another parent of family member.”
Some Statistics
According to a study conducted by the Juvenile Justice Bulletin, “In 2004 an estimated 30,500 parental abduction cases were reported to law enforcement agencies.” In 82% of the cases, “a parent was responsible for the abduction;” 12% of the cases “a family member other than a parent was the abductor;
Statistics Cont.
and in only 6%, non-family members were the perpetrators.” Of approximately 4,500 cases of parental abduction, “only 15 percent of all reported cases resulted in arrest.”
Hopper v. Hopper, 559 So. 2d
403 (Fla. 1st DCA 1990),
Hopper v. Hopper is a typical case which illustrates
how parents forum shop (usually by kidnapping their own children) to gain custody of their children and how the PKPA attempts to prevent such abuses.
The Hopper marriage was dissolved in 1984 by a Colorado court providing each parent share joint custody.
Texas (Dad) v. Florida (Mom)
The Father moved to Texas and was provided summer visitation.
The Father kept the children and sought custody of them in Texas.
The Mother petitioned in Florida to establish the Colorado order as a Florida judgment, and also alleged that Father had failed to return the children after their summer visitation The lower Florida court modified the Colorado dissolution order, placing the children in Texas with the Father and giving Mother visitation.
Facts Cont.
Father then filed in Texas for an emergency temporary order alleging that there is a serious and immediate threat of danger to the children during their periods of visitation in Florida.
The Texas court declared that they had “exclusive jurisdiction,” and that the children were to remain in Texas until a proper investigation took place.
Mother filed a motion requesting that Father be held in contempt of court for refusing to allow summer visitation provided in the Florida order.
The Florida court then declared Father in contempt of court for failure to comply with Florida’s custodial order.
Facts Cont
The Father argued that he was not able to bring the children to Florida because of the emergency Texas order which declared that the children remain in Texas.
Holding
“The Federal Parental Kidnapping Protection Act provides for continuing jurisdiction in accordance with state law as long as one of the contestants remains a resident of the state.” Jurisdiction remains in the State of Florida so long as one of the contestants is a resident of the state, or the child resides in the state. The court also stated that the Father could not assert the defense that he could not bring the children to Florida without violating the Texas order because he never should have sought relief in Texas.
What Does it Mean?
“Custody Determination" means a judgment, decree, or other order of a court providing for the custody of a child, and includes permanent and temporary orders, and initial orders and modifications;
“Home State" means the State in which, immediately preceding the time involved, the child lived with his parents, a parent, or a person acting as parent, for at least six consecutive months, and in the case of a child less than six months old, the State in which the child lived from birth with any of such persons. Periods of temporary absence of any of such persons are counted as part of the six-month or other period; “Modification" and “Modify" refer to a custody or visitation determination which modifies, replaces, supersedes, or otherwise is made subsequent to, a prior custody or visitation determination concerning the same child, whether made by the same court or not;
“Physical Custody" means actual possession and control of a child
But…
A child custody or visitation determination made by a court of a State is consistent with the provisions of this section only if— Such court has jurisdiction under the law of such State; and One of the following conditions is met: (i) It is the home State of the child on the date of the commencement of the proceeding, or (ii) had been the child's home State within six months before the date of the commencement of the proceeding and the child is absent from such State because of his removal or retention by a contestant or for other reasons, and a contestant continues to live in such State;
But wait, there’s more…
(B) (i) it appears that no other State would have jurisdiction under subparagraph (A), and (ii) it is in the best interest of the child that a court of such State assume jurisdiction because (I) the child and his parents, or the child and at least one contestant, have a significant connection with such State other than mere physical presence in such State, and (II) there is available in such State substantial evidence concerning the child's present or future care, protection, training, and personal relationships;
Another wrinkle
(C) the child is physically present in such State and (i) the child has been abandoned, or (ii) it is necessary in an emergency to protect the child because the child, a sibling, or parent of the child has been subjected to or threatened with mistreatment or abuse; (D) it appears that no other State would have jurisdiction under subparagraph (A), (B), (C), or (E), or another State has declined to exercise jurisdiction on the ground that the State whose jurisdiction is in issue is the more appropriate forum to determine the custody or visitation of the child, and (ii) it is in the best interest of the child that such court assume jurisdiction; or (E) the court has continuing jurisdiction pursuant to subsection (d) of this section.
So how does it work?
Home State Determined by the Court Judgment Entered
Full Faith & Credit
In addition to its provisions for Full Faith and Credit, the PKPA explicitly provides that a State cannot modify the child custody decree of another state without complying with the terms of the PKPA. SO, if a State modifies a previous child custody order without compliance with the PKPA, the modification is not entitled to Full Faith and Credit in other states.
The Supremes Speak
Susan and David’s marriage is dissolved in California. They have an infant son, Matthew. The California court awarded the parents joint custody, but that became moot when the mother moved to Louisiana. The California court then entered an order awarding the mother sole custody. When she arrived, she sought enforcement in Louisiana state court, of the California order awarding her sole custody. Court granted it. After review, California awarded custody to the father. What result?
Certiorari Granted
Held: “The PKPA does not provide an implied cause of action in federal court to determine which of two conflicting state custody decisions is valid. The context in which the PKPA was enacted . . . suggests that Congress’ principal aim was to extend the requirements of the Full Faith and Credit Clause to custody determinations, and not to create an entirely new cause of action. [T]he Act is an addendum to, and is therefore clearly intended to have the same operative effect as, the federal full faith and credit statute, . . .” Thompson v. Thompson, 484 U.S. 174, 108 S.Ct. 513 (1988).
What about Florida?
Jurisdiction of state court to alter its own custody orders does not automatically terminate simply because children may have resided outside state for more than six months, when it appears that children maintained significant contact with the state.
Lets see how this works…
Rohlfs v. Rohlfs, 666 So. 2d 568 (Fla. 3d DCA.1996).
In 1981, William and Pamela, were married in Nevada. They were both in the military. From June 1983 until August 1986 they lived in Japan when they were reassigned to Virginia. They lived there with their two children until June 1987. At that time, they were reassigned and lived in California until December 1989 when the parties were stationed in Monroe County, Florida where they established residency. They filed for a dissolution of marriage in 1994. The judgment awarded the wife primary residential custody of the children; the court ordered shared parental responsibility. On visitation to California, the father kept the children. Father served mother with a temporary restraining order preventing either party from leaving California with the children, claiming abuse and neglect. So who has custody, and does Florida still have jurisdiction?
In Florida…
The mother still has custody, and Florida still exercises its jurisdiction. WHY? In this case, in light of the legal fiction of the mother’s residency, the court in Florida still has “continuing jurisdiction” over the children. The court noted that the children’s home state continually changes with the mother’s military service, but that does not prevent Florida from continuing to exercise jurisdiction. As far as the abuse allegations, the proper forum to address those issues still remains with the Florida courts.
What about if the kids went to Hawaii?
S.N. and D.N. were living in Hawaii. They had two children. In January 2001, father obtained a temporary restraining order against the mother and asked her to vacate the marital home. The order also gave the father both legal and physical custody of the children. Mother left the state with the children and was subsequently arrested in Florida. The children were placed into child protective services. When the father attempted to have the children returned to his custody, The Department of Children and Family Services intervened stating that custody should be determined in Florida Courts. In a case where the welfare of the children is at stake, can a Florida court modify an existing valid custody order from Hawaii?
Where is the home state?
It is clear from the record that Hawaii was the home state of the two children when the order was entered giving the father temporary legal custody. Therefore Hawaii entered the order consistent with the provisions of the Parental Kidnapping and Prevention Act. In Re D.N., 858 So. 2d 1087 (Fla. 2d DCA 2003). Further, there is nothing to indicate that Hawaii declined to exercise jurisdiction. (Remember provision (D) which states in part that another State has declined to exercise jurisdiction on the ground that the State whose jurisdiction is in issue is the more appropriate forum).
Back to the beautiful beaches …
Essentially, the PKPA preempts state law on the question of modifying another state’s custody order.
Can a parent leave the country?
What if the mother filed an emergency motion to have the children returned from Panama after the father left the country with them and did not return? Can Florida exercise jurisdiction to bring the children back?
What criteria for jurisdiction?
Unless the Panamanian court determined that it no longer had jurisdiction, or that Florida would be a more convenient forum, pursuant to either the state UCCJEA or the PKPA, jurisdiction could not be invoked. Loud v. De La Espriella Medina, 899 So. 2d 1242 (Fla. 4th DCA 2005). Remember that pesky rule, here it is again: …another State has declined to exercise jurisdiction on the ground that the State whose jurisdiction is in issue is the more appropriate forum…
Hold on, I have another question
Mother and father lived in Florida with their two children. In 1999 their marriage was dissolved. The dissolution awarded joint custody. Mother maintained substantial contact with the minor children until September 2000 when the father removed them to Texas, then Arkansas without notice or agreement of the Mother. She now seeks to modify the final judgment of dissolution of marriage and changing primary residential responsibility of her minor children. Since the family now lives in Arkansas, (which is now the home state of the children,) the trial court dismissed for lack of jurisdiction over the supplemental petition for modification. What do we do now?
Not so fast
The court held that a petition to modify a custody order should be addressed to the court (that is Florida) that rendered the original decree, even if the second state has become the home state of a child. Miles v. Hyman, 836 So. 2d 1097 (Fla. 5th DCA 2003). Here the mother had substantial contacts with the children after the award of joint custody, but the father removed the children to Arkansas and deprived the mother of contact.
Lets wrap this up
If a court has jurisdiction and makes a ruling as to custody, the only way to modify it is if: the court has jurisdiction, Another state court that had jurisdiction declines to exercise it, It is in the best interest of the child for the court to exercise jurisdiction, The child is physically present in the state and has been abandoned, or it is necessary in an emergency to protect the child because they are subject to abuse or mistreatment.
One Last Shot
Ex-wife filed petition seeking modification of visitation and permission to move to New York, Ex-husband filed counterpetition seeking to change custody. The Circuit Court for the Fifteenth Judicial Circuit, Palm Beach County, entered temporary order allowing ex-wife to relocate, establishing temporary visitation schedule, and denying ex-husband's counterpetition, and subsequently denied exhusband's motion to vacate temporary relief order and to dismiss for lack of subject matter jurisdiction. Ex-husband sought common law certiorari. Held that trial court lacked subject matter jurisdiction over petition pursuant to Uniform Child Custody Jurisdiction Act (UCCJA). Why?
Here’s why
The fact that trial court entered judgment of dissolution, in and of itself, does not provide basis for jurisdiction over child custody determination pursuant to Uniform Child Custody Jurisdiction Act (UCCJA). Once jurisdiction to determine custody is validly acquired under Uniform Child Custody Jurisdiction Act (UCCJA), jurisdiction continues up until Florida court expressly determines on some basis other than Act that jurisdiction is no longer appropriate, until virtually all contacts with Florida have ceased, until some other Florida statute terminates jurisdiction or jurisdiction is terminated by operation of Parental Kidnapping Prevention Act (PKPA).
And in this case
Mother and child lived in Pennsylvania for approximately three years, Father lived in Georgia for more than one year, and mother failed to allege that there was an emergency, that no other state would have jurisdiction, or that another state declined jurisdiction on ground that Florida was more important forum. In the present case all contacts with Florida have ceased. The court rejected the mother's argument that the participation of the parties and involvement of the court which followed her filing the petition for modification in 1996 create the requisite contact with Florida. Snider v. Snider, 686 So. 2d 802 (Fla. 4th DCA 1997).
Any more questions?
PKPA can be found at 28 U.S.C.A. § 1738A