UCCJEA/PKPA/HAGUE/3RD PARTY RIGHTS & KINSHIP CUSTODY Flashcards
What is the definition of “home state” within the UCCJEA
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 the proceeding.
If the child is younger than 6 months of age, the home state is the state where the child lived from birth with a parent or a person acting as a parent
What are the rules about communication between courts under 61.511
Court may communicate with another state concerning UCCJEA proceeding
If it does, it MUST give parties opportunity to participate in the communication and present facts and legal argument before decision on jur is made BUT
Court need not include parties on communication RE scheduling
There shall be a record of communication between courts accept scheduling
Absent an emergency under 61.516, when does FL have jurisdiction to make an initial child custody determination
ONLY IF:
1. FL is the home state on date of commencement of action OR was home state anytime within 6 months before action and child is absent BUT parent continues to live here
- A court of another state does NOT have jur or a court of the home state of the child has declined jur on grounds that FL is more appropriate forum AND
- the child’s parents or at least one parent has significant
connection with FL other than a mere presence AND
-substantial evidence is available in FL concerning child’s
care, protection, training and personal relationships
- the child’s parents or at least one parent has significant
- All courts that had jur under 1 & 2 have declined jur bc FL is more appropriate to determine custody
- No court of any other stat would have jur under the criteria in #1, #2 or #3
What is the exclusive jurisdictional basis for making a child custody determination in FL
UCCJEA
Is physical presence of or personal jur over a party or a child necessary for child custody determination
NO - physical presence of or personal jurisdiction over a party or a child is no necessary or sufficient to make a child custody determination
If a FL court has made a child custody determination in accordance with 61.514 or 61.516 (absent emergency), the Court has exclusive continuing jurisdiction over the determination until
(a) A court of this state determines that the child, 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.
When can a court of this state modify that determination?
A court of this state which has made a child custody determination and does not have exclusive, continuing jurisdiction under this section may modify that determination only if it has jurisdiction to make an initial determination
When can FL modify a child custody determination made by another state?
Not unless FL made the initial determination and
1. the other state determines it no longer has exclusive continuing jur or that FL would be more convenient
2. FL court or court of another state determined that child child’s parents or any person acting as a parent do not reside in the state
When can FL exercise temporary emergency jur under 61.517
(1) If child is present in FL and has been abandoned OR it is necessary in an emergency to protect child bc child or sibling or parent to child is subjected to threat with mistreatment or abuse
(2) If there is no previous child custody determination that is entitled to be enforced under this part, and a child custody proceeding has not been commenced in a court of a state having jurisdiction under Fla. Stat. 61.514-61.516, a child custody determination made under this section remains in effect until an order is obtained from a court of a state having jurisdiction under Fla. Stat. 61.514-61.516. If a child custody proceeding has not been or is not commenced in a court of a state having jurisdiction under Fla. Stat. 61.514-61.516, a child custody determination made under this section becomes a final determination if it so provides and this state becomes the home state of the child
(3) If there is a previous child custody determination that is entitled to be enforced under this part, or a child custody proceeding has been commenced in a court of a state having jurisdiction under Fla. Stat. 61.514-61.516, any order issued by a court of this state under this section must specify in the order a period that the court considers adequate to allow the person seeking an order to obtain an order from the state having jurisdiction under Fla. Stat. 61.514-61.516. The order issued in this state remains in effect until an order is obtained from the other state within the period specified or the period expires.
(4) A court of this state which has been asked to make a child custody determination under this section, upon being informed that a child custody proceeding has been commenced in, or a child custody determination has been made by, a court of a state having jurisdiction under Fla. Stat. 61.514-61.516, shall immediately communicate with the other court. A court of this state which is exercising jurisdiction under Fla. Stat. 61.514-61.516, upon being informed that a child custody proceeding has been commenced in, or a child custody determination has been made by, a court of another state under a statute similar to this section shall immediately communicate with the court of that state to resolve the emergency, protect the safety of the parties and the child, and determine a period for the duration of the temporary order.
A court of this state which has jurisdiction under this part to make a child custody determination may decline to exercise its jurisdiction at any time if it determines that it is an inconvenient forum under the circumstances and that a court of another state is a more appropriate forum. The issue of inconvenient forum may be raised upon motion of a party, the court’s own motion, or request of another court. What must court consider before deciding its an inconvenient forum
(a) Whether domestic violence has occurred and is likely to continue in the future and which state could best protect the parties and the child;
(b) The ability of the court of each state to decide the issue expeditiously and the procedures necessary to present the evidence
(c) The familiarity of the court of each state with the facts and issues in the pending litigation
(d) The relative financial circumstances of the parties;
(e) Any agreement of the parties as to which state should assume jurisdiction;
(f) The nature and location of the evidence required to resolve the pending litigation, including testimony of the child;
(g) The distance between the court in this state and the court in the state that would assume jurisdiction
(h) The length of time the child has resided outside this state;
If court rules FL is an inconvenient forum, what shall it do
Stay the proceeding upon condition that a child custody proceeding be promptly commenced in other state and impose any other condition that is just and proper
When may court decline to exercise the jur under this part
If child custody determination is incidental to an action for divorce or another proceeding while still retaining jur over divorce or other proceeding
Is conceiving a child in FL sufficient to give FL subject matter jur
No - it doesn’t fall within UCCJEA. That only corners personal jur
Mother conceived child while visiting Florida, although she permanently resided in New Hampshire. Prior to the child’s birth, father filed in Florida a petition to establish paternity and a parenting plan. Less than a month later, mother gave birth to the child in New Hampshire, where the child has resided ever since. Does FL have jur?
No - no subject matter jur under UCCJEA bc kid never set foot in FL
Child was adjudicated dependent and the child was placed in the father’s care. Father then moved to Virginia with the child and the child was in Virginia for 10 years. Father was later arrested for child abuse in Virginia and mother filed an emergency motion in the Florida court seeking to have the child returned to Florida and placed in her custody. Florida court entered a temporary emergency order requiring the child’s return. Virginia court conducted a hearing to register and enforce the Florida temporary court order, ultimately finding it was in the child’s best interest to stay in Virginia with a paternal aunt. Florida transferred jurisdiction to Virginia as a more convenient forum after participating in the Virginia hearing by phone. Was this proper?
The 4th DCA held the Virginia court was authorized to exercise emergency jurisdiction under the UCCJEA to modify Florida’s custody determination in the child’s best interest and the Florida court did not abuse its discretion in transferring the case to Virginia as a more convenient forum.
Child was born on November 3, 2009. It is undisputed that on approximately January 3, 2010, the mother moved to Florida with the child. Mother claims she moved to North Carolina on September 7, 2010 (Father claimed she was in Florida longer). On December 9, 2010, father filed his Petition to Determine Paternity and for Related Relief in Sarasota, Florida. The trial court ultimately dismissed the father’s petition, concluding Florida was not the home state of the child. Was this error?
The District Court concluded that the trial court failed to look back to June 9, 2010, six months prior to the filing of the father’s petition, to determine if Florida qualified as the home state at any time between June 9, 2010 and December 9, 2010, the date he filed his petition. As the mother admitting having lived in Florida from January 3, 2010 until September 7, 2010, a period totaling eight consecutive months, and September 7, 2010 is within the six-month period prior to the filing of the father’s petition, Florida qualifies as the home state under the UCCJEA and Sarasota, Florida had jurisdiction to make the initial timesharing determination.
*Section 61.514(1)(a) provides for jurisdiction if this state “…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 continues to live in this state.”
Mother and Father moved with their two minor children from Colorado to Florida in October 2010. In August 2011, the Mother moved back to Colorado with the children, and the third child was born in 2012. In December 2011 (i.e. 4 months after the mother and children moved back to Colorado), the Father filed a verified petition for establishment of a parenting plan, child support, and determination of parental responsibility and timesharing. The Mother’s answer asserted that she had filed a petition for divorce in Colorado, but failed to contest the alleged duration of time the minor children lived in Florida. At a hearing in May 2012 on Father’s request for a pick-up order, the trial court found Colorado to be the home state under the UCCJEA. Which State has jurisdiction?
Father’s Petition was filed on December 8, 2011, the court looks back to six months prior to the date of the Father’s petition (June 8, 2011) to determine whether Florida qualified as the home state of the minor children at any time between June 8, 2011 and December 8, 2011. Considering the children resided in Florida from October 2010 until August 2011, a period of 8 months, Florida became the home state of the children and was the home state within six months prior to the filing of the Petition
What is PKPA?
Short version of the federal UCCJEA
Is PKPA a multistate statute
No - it is a single FEDERAL statute
What is PKPA
For purposes of full faith and credit clause, it defines when a court has child custody jur, prohibits courts that don’t have jur from having their actions given full faith and credit and lays down rules for when modifying child custody determinations with proper PKPA jur will be recognized.
What is the actual title of the “PKPA” fed statute
Full Faith and Credit Given to Child Custody Determination
What is the concept of PKPA’s continuing jur?
Once court properly invokes child custody jur under PKPA, it keeps jur until both parents and kid lead unless court subsequently declines to exercise cont’ jur
If there is a conflict between PKPA and FL law, which controls
PKPA - federal law trumps state law under supremacy clause of US Const.
What is the Hague Convention
A convention that provides remedies for a parent to seek the return of their child who was abducted back to parent’s country
What countries are NOT signatories to Hague Treaty
Africa & Asia
