UIFSA/UCCJEA/ICARA/PKPA Flashcards
What is UIFSA?
Uniform Interstate Family Support Act. The purpose of UIFSA is to improve and extend the enforcement of duties of support so that once a foreign support order is registered in FL, it has the same effect as a Florida order. Chapter 88, Florida Statutes.
What does UIFSA govern?
The establishment, enforcement and modification of support orders.
What is considered a support order under UIFSA?
A judgment, decree, order, decision, or directive for the benefit of a child, spouse, or former spouse, which provides for monetary support, health care, arrearages retroactive support, or reimbursement for financial assistance in place of child support. The term may include related costs and attorney’s fees.
Does UIFSA have anything to do with child custody?
No, in fact, UIFSA expressly refuses to grant jurisdiction to render judgments, or issue orders, relating to child custody or visitation.
How is personal jurisdiction over non-residents conferred under UIFSA?
- Personal service in FL
- Consent or waiver
- Resided with child in FL
- Resided here and provided prenatal expenses or support
- The child resides here as a result of acts of individual
- Sex in FL results in kid
- Assert parentage in court or putative father registry
- Any other basis consistent with constitution
When does FL have continuing exclusive jurisdiction to modify a child support order under UIFSA.
Florida shall have continuing exclusive jurisdiction to modify its child support order if the order is the controlling order and:
a) at the time of filing the request for modification, this state is the residence of the obligor, the individual obligee, or the child for whose benefit the support order is issued; OR
b) even if FL is not the residence of the obligor, the individual obligee or the child for whose benefit the support order is issued, the parties’ consent inn a record or in open court that FL may continue to exercise jurisdiction to modify its order.
When doesn’t FL have continuing exclusive jurisdiction to modify a child support order under UIFSA?
FL court may not exercise continuing exclusive jurisdiction to modify a child support order if:
a) all of the parties who are individuals file consent in a record in FL that another state has jurisdiction over at least one of the parties or that is located in the state of residence of the child may modify the order and assume continuing exclusive jurisdiction; or
b) the order is not the controlling order.
What happens if there are two child support actions in other states at the same time (simultaneous proceedings) under UIFSA?
Under the UIFSA, if a case is filed in another state, a case must be filed in Florida within the time allowed for a responsive pleading challenging the jurisdiction of the first state, and a timely challenge must be made to the original filing in the other state.
If the matter is purely one of subject matter or personal jurisdiction, it should be resolved based upon prevailing jurisdictional law. In the event Florida and the other state both have subject matter and personal jurisdiction, the “home state” of the child will prevail.
Under UIFSA, can state courts modify out of state spousal support orders?
No. The issuing tribunal has continuing exclusive jurisdiction to modify a spousal support order.
Does continuing exclusive jurisdiction under UIFSA apply to enforcement actions?
No, only modification actions.
How is a controlling support order determined if there is more than one support order?
a) if only one of the tribunals would have CEJ, that order controls;
b) if more than one of the tribunals would have CEJ, an order issued by a tribunal in the current home state of the trial controls; or if an order has not been issued in the current home state of the child, the order most recently issued controls.
c) if none of the tribunals would have CEJ, the tribunal of this state shall issue a child support order, which controls.
Define “home state” under UIFSA.
The UIFSA defines “home state” as the state or foreign country in which a child lived with a parent or a person acting as parent for at least six consecutive months immediately preceding the time of filing of a petition or comparable pleading for support and, if a child is less than 6 months old, the state or foreign country in which the child lived from birth with any of them. A period of temporary absence of any of them is counted as part of the 6-month or other period. See § 88.1011(8), Fla. Stat. (2023).
What is the purpose of the UCCJEA?
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 laws governing custody issues.
Is personal jurisdiction required to impose financial obligation for on a person?
Yes.
Is personal jurisdiction required to make a custody determination?
No. But it’s binding effect can only be imposed on those who have been served or notified.
Under UIFSA, what is the continuing exclusive jurisdiction to modify a spousal support order?
a) FL has continuing, exclusive jurisdiction to modify the spousal support order throughout the existence of the support obligation.
b) FL may not modify a spousal support order issues in another state that has continuing, exclusive jurisdiction
What is the home state of a child pursuant to UCCJEA?
The state where a child lived with a parent or person acting as a parent for at least 6 consecutive months immediately before commencement of a child custody proceeding. If the child is younger than 6 months, the term means the state in which the child lived from birth.
When does a FL court have SMJ to make initial custody determinations?
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
Petition filed in State 1, a second pleading must be filed in State 2 within time allowed for responsive pleading challenging the jurisdiction of State 1, and a timely challenge must be made in State 1. If both states have JUR, who wins?
The home state.
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
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 FL exercise temporary emergency jurisdiction under 61.517?
(a) The child has been abandoned;
(b) It is necessary in an emergency to protect the child because the child, or a sibling or parent of the child, is subjected to or threatened with mistreatment or abuse; or
(c) It is necessary in an emergency to protect the child because the child has been subjected to or is threatened with being subjected to sex-reassignment prescriptions or procedures, as defined in s. 456.001. *New
How long is a child custody determination made pursuant to 61.517 (emergency) in effect?
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 Florida Statute Sections 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 Sections 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 Sections 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.
If there is a previous child custody determination entitled to be enforced or a child custody proceeding was commenced in the state having jurisdiction, the FL court must specify in the order a period that the court considers adequate to allow the person to obtain an order from the state having jurisdiction.
After FL enters an order pursuant to 61.517 (emergency jx), are they required to communicate with the other court?
A court being asked to make a temporary emergency child custody determination has to immediately communicate with the other court. See Section 61.517(4), Florida Statutes. Communication helps to resolve the emergency, protect the safety of the parties and the child, and determine a period for the duration of the temporary order. Edgar v. Firuta,100 So. 3d 255, 259 (Fla. 3d DCA 2012).
When a court decides to communicate with the court of another state, the parties must be allowed to participate, be given the opportunity to present facts and legal arguments before a decision on jurisdiction is made, a record must be made of a communication, the parties must be informed promptly of the communication, and must be granted access to the record.
Haugabookv. Jeffcoat-Hultberg, 219 So. 3d 65, (Fla. 4th DCA 2016).
When can FL modify a child custody determination made by another state? 61.516
A FL court may not modify a child custody determination made by a court of another state unless a court of this state has jurisdiction to make an initial determination under Florida Statute Section 61.514(1)(a) or (b) and:
(1) The court of the other state determines it no longer has exclusive, continuing jurisdiction under Section 61.515 or that a court of this state would be amore convenient forum under Section 61.520; or
(2) A court of this state or a court of the other state determines that the child,
the child’s parents, and any person acting as a parent do not presently reside
in the other state.
Can FL enforce a child custody determination entered in another state? 61.526
Section 61.526, Florida Statutes provides:
(a) A court of this state shall recognize and enforce a child custody determination of a court of another state if the latter court exercised jurisdiction in substantial conformity with this part or the determination was made under factual circumstances meeting the jurisdictional standards of this part and the determination has not been modified in accordance with this part.
(b) A court of this state may use any remedy available under other laws
of this state to enforce a child custody determination made by a court
of another state.
Does UCCJEA apply to child custody orders issues in foreign countries?
YES.
(1) A court of this state shall treat a foreign country as if it were a state of the United States for purposes of applying this chapter;
(2) Except as otherwise provided in subsection (3), a child custody determination made in a foreign country under factual circumstances in substantial conformity with the jurisdictional standards of this part must be recognized and enforced under this chapter;
HOWEVER,
(3) A court of this state need not apply this part if the child custody law of a foreign country violates fundamental principles of human rights.
What happens when there are simultaneous UCCJEA proceedings in 2 states?
FL may not exercise jurisdiction if at the time of commencement of the proceeding, a proceeding concerning the custody of the child had been commenced in a court of another state having jurisdiction unless that proceeding has been terminated or stayed by the other court because FL is a more convenient forum.
If FL learns that there is a proceeding in another state, FL shall stay the proceeding and communicate with the other state. If that other state has jurisdiction and does not determine that FL is more appropriate, FL shall dismiss.
In a modification, FL must determine if there is a proceeding to enforce in another sate and if so, FL may: (a) stay the proceeding for modification pending the conclusion of the enforcement action; (b) enjoin the parties from continuing with the enforcement proceeding int eh other state; or (c) proceed with the modification under conditions the FL court deems appropriate.
A court of this state which has jurisdiction 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?
UCCJEA INCONVENIENT FORUM FACTORS
(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 length of time the child has resided outside this state;
(c) The distance between the court in this state and the court in the state that would assume jurisdiction;
(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 ability of the court of each state to decide the issue expeditiously and the procedures necessary to present the evidence; and
(h) The familiarity of the court of each state with the facts and issues in the pending litigation.
What statute addresses the parties requirement to file a UCCJEA Affidavit?
61.522
What is the Hague Convention?
The Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction is a multilateral treaty which seeks to protect children from the harmful effects of abduction and retention across international boundaries. It provides a procedures to bring about the prompt return of wrongfully abducted children.
What is ICARA?
International Child Abduction Remedies Act -Congress implemented the Hague Abduction Convention Treaty by enacting the International Child Abduction Remedies Act - which vests concurrent jurisdiction over claims brought under the Convention in Federal and State courts.
What is wrongful removal?
The taking of a child from the person who was actually exercising custody of a child.
What is wrongful retention?
Keep the child without the consent of the person who was actually exercising custody.
What is required to establish a case under the Hague Convention?
The Petitioner must show by a preponderance of the evidence that:
a) a child under 16 has been retained in a country outside the child’s country of habitual residence
b) the habitual residence of the child immediately before the date of the alleged wrongful retention was in a foreign country;
c) the wrongful removal must be in violation of the Petitioner’s rights of custody
d) the rights of custody were actually being exercised or would have been exercised but for the removal.
What is a child’s habitual residence for purposes of a Hague proceeding?
Fact driven depending on the totality of the circumstances.
What are the defenses to a Hague Petition to return a child?
- 1 year since removal
- Now settled
- Not actually exercising custody rights
- consent or acquiescence
- grave risk
- Mature child objection
- PUBLIC POLICY
What is the burden of proof in defending a Hague action?
There are two different burdens when defending a Hague action:
Now Settled, Not Exercising Custody and Consent or Acquiescence must be proved by a preponderance of the evidence.
Grave risk and public policy must be proved by clear and convincing evidence.
What is each signatory of Hague required to do?
Designate a central authority that a left behind parent can contact.
What is the central authority in the US?
U.S. State department
How does the central authority assist the left behind parent?
- locating the child and abducting parent
- identifying local counsel for the left behind parent
- providing explanations and briefing on the operation
- corresponding with the abducting parent in such a way as to scare the parent into returning the child.
What does the Central Authority not do?
Hire counsel,
initiate legal proceedings
take legal positions.
What is the Hague Convention on the International Recovery of Child Support?
Ensures the effective international recovery of child support by:
(a) establishing a comprehensive system of co-operation between the
authorities of the Contracting States;
(b) making available applications for the establishment of maintenance
decisions;
(c) providing for the recognition and enforcement of maintenance decisions;
and
(d) requiring effective measures for the prompt enforcement of maintenance
decisions.
