Interstate Child Custody Proceedings
When a child is born to parents that reside in two different states, and those parents engage in a legal proceeding to control parental rights and custody of that child, there needs to be a determination as to which state will exercise jurisdiction over the case. Jurisdiction in this context means which state’s court system will make decisions regarding each parent’s parental rights and the amount of time the child spends with each parent (i.e. custody). Determining jurisdiction is important because each state has their own set of laws pertaining to parental rights and custody. Which state will exercise jurisdiction over a child custody case is not always a clear-cut answer, and sometimes the two competing states’ courts will have a “UCCJEA conference” to determine which state has the superior power to make legal decisions regarding custody of the child.
Uniform Law
Because laws regarding custody of a child may differ between one state to another, and two jurisdictions (state courts) may compete over which state exercises control over the child, the Uniform Law Commission (UCL) created the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) for states to follow, if they chose, to somewhat standardize or harmonize jurisdiction issues in child custody cases. This Act pertains to custody issues only; it does not pertain to child support cases – which can sometimes be controlled by a different jurisdiction. See § 61.503(3) Florida Statute and Keogh v. Keogh, 5D18-1080, 2018 WL 4168553, at *1 (Fla. 5th DCA Aug. 31, 2018). All but one state, Massachusetts, has adopted and implemented the UCCJEA.
The general purposes of the UCCJEA are to avoid jurisdictional competition and conflict with other courts in child custody matters; promote cooperation with other courts; ensure that a custody decree is rendered in the state which enjoys the superior position to decide what is in the best interest of the child; deter controversies and avoid re-litigation of custody issues; facilitate enforcement of custody decrees; and promote uniformity of the laws governing custody issues. See § 61.503(2) Florida Statutes and Arjona v. Torres, 941 So. 2d 451 (Fla. 3d DCA 2006).
Application of the UCCJEA
The UCCJEA deals with “child custody proceedings”, which are defined as proceedings in which legal custody, physical custody, residential care or visitation with respect to a child is an issue. This includes proceedings for divorce, separation, neglect, abuse, dependency, guardianship, paternity, termination of parental rights, and protection from domestic violence. This does not include proceedings involving juvenile delinquency or criminal proceedings, or contractual emancipation. See § 61.503(4) Florida Statute. Moreover, the UCCJEA is limited to children. A special needs child, over the age of 18, is not a child for purposes of the UCCJEA. See § 61.503(2), Florida Statutes and Gamache v. Gamache, 14 So. 3d 1236, 1237–38 (Fla. 2d DCA 2009).
Under the UCCJEA, jurisdiction over a child is based on the location of the child and the connections the child has with the state. Pursuant to Florida Statute § 61.514, for Florida to exercise jurisdiction to make an initial child custody determination 1 , regardless of where the child is physically located, and regardless of whether the parents were married at the time the child was born, the following criteria are required:
(a) Florida is the home state 2 of the child on the date of the commencement 3 of the proceeding or was the home state of the child within 6 months before the commencement of the proceeding and the child is absent from this state but a parent or person acting as a parent 4 continues to live in this state; or
(b) A court of another state does not have jurisdiction under paragraph (a), 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 s. 61.520 or s. 61.521, and:
1. 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 Florida other than mere physical presence; and
2. Substantial evidence is available in Florida concerning the child’s care, protection, training, and personal relationships; or
(c) All courts having jurisdiction under paragraph (a) or paragraph (b) have declined to exercise jurisdiction on the grounds that a court of Florida is the more appropriate forum to determine the custody of the child; or
(d) No court of any other state would have jurisdiction under the criteria specified in paragraph (a), paragraph (b), or paragraph (c).
Once a court in Florida has made an initial child custody determination, the same court in Florida has continuing jurisdiction over the child custody proceedings until either a) A court of this state determines that the child, the child's parents, and any person acting as a parent do not 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; or b) A court of this state or a court of another state determines that the child, the child’s parent, and any person acting as a parent do not presently reside in this state. See § 61.515 Florida Statute and Yurgel v. Yurgel, 572 So.2d 1327 (Fla.1990). (The Florida Supreme Court has ruled that a custody proceeding, properly begun in Florida, remains under Florida's jurisdiction until Florida determines otherwise, unless virtually all contacts with the state clearly have been lost.)
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(1) Initial determination means the first child custody determination regarding a particular child.
(2) “Home state” means the state in which a 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. In the case of a child younger than 6 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.
(3) Commencement means the filing of a first pleading in a legal proceeding.
(4) “person acting as a parent” means a person, other than a parent, who a) has physical custody of the child or has had physical custody for a period of 6 consecutive months, including any temporary absence, within 1 year immediately before the commencement of a child custody proceeding; and b) Has been awarded a child-custody determination by a court or claims a right to a child-custody determination under the laws of this state.
When Two States Compete for Jurisdiction
Under Florida Statute § 61.508, if a question of jurisdiction is raised by a party in Florida in a child custody proceeding, upon request of that party, the question of jurisdiction must be given priority on the court’s calendar and handled expeditiously. Once the issue of jurisdiction is raised, and the court is asked to rule on whether it will or will not exercise jurisdiction, an evidentiary hearing must be had with proper notice given to all parents involved, for the court to hear evidence and arguments. The court oftentimes has a conference with the court in the competing jurisdiction to confer regarding the facts of the case and to decide which state court will exercise power over the case. The parents must be given an opportunity to participate in the communication between the two courts.
Issues to Consider
There are certain requirements that must be met, including due process (proper notice to all parents) and proper service of process on the parents involved, that if not sufficient will nullify a Florida court’s order on jurisdiction. Additionally, the parents cannot concede to Florida exercising jurisdiction over the child custody case even if they agree. If Florida does not have subject matter jurisdiction, all of the work that you put in to obtaining a court order was for nothing. Another state’s court could exercise jurisdiction over the child custody proceedings if Florida lacked subject matter jurisdiction under the law. Finally, if a parent’s “hands are unclean” or that parent engaged in “unjustifiable conduct” in gaining jurisdiction in Florida, Florida’s court can refuse to exercise jurisdiction over the child custody case.
The laws are not always easy to navigate or understand. There are tools that attorneys have, including access to higher court decisions and case law, that can aid your attorney in procuring an appropriate ruling regarding jurisdiction over your child custody proceedings. Because certain aspects of your child’s life will be governed by the state that exercises jurisdiction, it is extremely important to have a competent family law attorney working with you on this issue.