Understanding the Procedural Rules and Complexity of Interstate Custody Disputes
Published in 1997, the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) sets out to bring uniformity among child custody disputes. Prior to 1997 interstate child custody disputes were governed by the Uniform Child Custody Jurisdiction Act (UCCJA). After it became apparent that the UCCJA created more problems that it resolved, the National Conference of Commissioners on Uniform State Laws drafted the UCCJEA to close the gaps in the UCCJA and help prevent the loopholes available to parents who engaged in unlawful conduct in child custody disputes.
The purpose of the UCCJEA is accomplished by a fairly straight-forward set of rules and procedures. So why after nearly twenty years are there still cases being litigated in every single state? After experiencing first-hand the difficulties practitioners face in UCCJEA cases, it became apparent to me that in order to prevent misinterpretations of the UCCJEA, and to ensure compliance with the complex rules, a step-by-step guide was needed. Reading a state’s UCCJEA for the first time will probably seem overwhelming, as it should. There are so many factors to consider, and it is not organized in an easy-to-follow format. My goal with this guide is to break the UCCJEA down in simple steps, creating a distinct how-to process of the type of situation that you may be facing. Each step can be considered a chapter; once you determine your factual situation, you should carefully follow the steps as outlined in this guide, with reference back to Florida’s UCCJEA statutes.
STEP ONE: Filing a Petition
Before a petition is filed, the petitioner should determine the home state of the child. This will ensure that the parties are contesting their case in the correct court. The home state is generally always given priority over the other types of jurisdiction. Prioritizing home state jurisdiction makes sure that there are no jurisdictional disputes, and is the very reason why the UCCJEA exists.
Home State Jurisdiction
The home state is the state in which a child lived with a parent or person acting as a parent for at least six consecutive months immediately before the commencement of a child custody proceeding. In the case of an infant under six months old, the home state is the state in which the child lived from birth with a parent or person acting as a parent.
Sometimes, however, the child has no home state. For instance, a situation may arise where a child has not spent at least six months in any one state. In those situations, a court must evaluate the facts of the case to determine whether it can exercise jurisdiction based on the child not having a home state. The legal residence or domicile of the child is irrelevant in determining physical presence in a state for at least six months. The only factor to be considered is where the child actually, physically lived. In cases involving an initial or modification child custody proceeding, however, the court must determine the residency of the parents to the issuing state by factoring in the intent to reside in the issuing state. Additionally, temporary absences are included in the six month home state requirement, and will be addressed in more detail in the last chapter of this guide.
When faced with a situation where a child has frequently moved, it is a good idea to make a timeline of the child. This will allow you to better evaluate where the child has lived in the six months preceding the commencement of the case.
Commencement and Required Information
A case is commenced under the UCCJEA when the first pleading is filed. In order for the court to recognize an enforcement petition, the petitioner must comply with the registration procedures of Fla. Stat. § 61.528. The UCCJEA imposes very specific pleading requirements. A petitioner must file a document requesting registration of the out-of-state order with the circuit court, along with two copies of the child-custody determination to be registered and a statement that the order has not been modified. Additionally, the name and address of both the petitioner and the respondent must be filed with the circuit court.
The petitioner, under oath, is required to provide information regarding the children’s present address, the places the children have lived during the last five years, the names and present addresses of the persons with whom the children have lived during that period, and the existence of other custody proceedings.
Once the court has the proper documents, the clerk is to file the petition as a foreign judgment and serve notice on the parties listed in the pleadings along with a notice that the parties can contest the registration under the criteria outlined in Fla. Stat. § 61.528(4). However, if a respondent fails to challenge the registration order, it becomes enforceable after twenty days.
Simultaneous Child Custody Proceedings
If another state has already commenced a child custody proceeding in substantial conformity with the UCCJEA, the Florida court must stay their proceedings and communicate with the other court. This communication is mandatory under Fla. Stat. § 61.519 in order to determine if the other state wishes to relinquish jurisdiction under a theory of inconvenient forum. If the other state does not relinquish jurisdiction, then a Florida court must dismiss the child custody proceeding currently pending in their court.
STEP TWO: Determining Whether Florida Has Jurisdiction to Make an Initial Child Custody Determination
The ability of a court to make an initial custody determination is one of the biggest factors in a UCCJEA analysis. A child custody determination is a judgment, decree, or other court order providing for custody or visitation of a child. The UCCJEA only deals with the custody and visitation of children; therefore, issues regarding child support are not UCCJEA actions and are not covered under this Act. Child custody determinations are the result of child custody proceedings; they are the orders that come out of the contested proceedings. Child custody proceedings are cases where custody or visitation is the issue in the case. These proceedings include divorce, separate maintenance, separation, neglect, abuse, dependency, guardianship, paternity, termination of parental rights, and domestic violence protection orders. However, proceedings involving juvenile delinquency, emancipation, and stand-alone enforcement orders (Step Three) are not child custody proceedings.
No Prior Child Custody Determination
To determine if Florida can make an initial child custody determination, the first question you must ask is whether there has ever been a child custody determination concerning the child. If the answer is no, then Florida can make an initial child custody determination so long as Florida is the home state of the child on the date of commencement. Jurisdiction to proceed is determined as of the date of commencement, and nothing that happens after the date of commencement is relevant in determining whether, on the date of commencement, Florida was the home state of the child. Under Fla. Stat. § 61.514, Florida has jurisdiction to make an initial child custody determination if:
(a) Florida is the home state of the child on the date of commencement, or was the home state of the child within six months before the commencement and the child is absent from the state but a parent or person acting as a parent continues to live in Florida, or;
(b) Another state does not have jurisdiction, or the home state has declined jurisdiction because the home state determined that Florida was a more appropriate forum, and Florida finds that:
(i) The child and the child’s parents, or the child and at least one parent or person acting as a parent, have a significant connection with Florida other than mere physical presence, and;
(ii) Substantial evidence is available in Florida concerning the child’s care, protection, training, and personal relationships.
Florida can make an initial child custody determination if it can satisfy the elements of Fla. Stat. § 61.514 and no other courts have jurisdiction, or have declined to exercise that jurisdiction because of an inconvenient forum. The six-month residency requirement is the determining factor under the UCCJEA, mere physical presence or personal jurisdiction is not enough to have jurisdiction in an interstate child custody dispute.
Prior Child Custody Determination
However, if there has been a previous child custody determination, the next question to ask is whether the petition seeks to enforce or modify that previous child custody determination. If the petition seeks to merely enforce the previous child custody determination, then you would want to move on to Step Three: Enforcement Petitions. However, if the petition seeks to modify the previous child custody determination, then you would want to analyze the status of the parties under Step Four: Modification Petitions.
Furthermore, Fla. Stat. § 61.514(1)(a) addresses a situation where Florida was the home state of the child “within six months” of the commencement date. This easily overlooked provision comes into play when the child moves to another state and a parent is left behind. The new state would not be the child’s home state for six months, so while the child is absent from Florida, Florida would continue to be the child’s home state for that interim six-month period. Another instance where this provision is used is when the child moves out of state, and the left-behind parent is still able to pursue a custody proceeding in Florida. This provision is referred to as the “extended home state rule” or “look back rule.”
STEP THREE: Enforcement Petitions
One of the most important questions to ask in this step is whether the petitioner seeks to merely enforce an out-of state custody determination or whether they would like to simultaneously modify the out-of-state determination. The answer to this question helps the court determine which factors it must analyze to determine whether it has jurisdiction to modify the order. Generally, any state can enforce an out-of-state child custody determination based on the Full Faith and Credit Clause. If the petition seeks to modify the registered petition, then move on to Step Four: Modification Petitions.
If the petitioner seeks only to enforce the out-of-state child custody determination, the court must determine which type of order has been registered for enforcement purposes. Under Fla Stat. §§ 61.525 and 61.529 a Florida court can only enforce an out-of-state child custody determination or an order made under the Hague convention for the return of a child in an international child abduction case. Under the Full Faith and Credit Clause, a Florida court is required to recognize and enforce an out-of-state child custody determination so long as the foreign order was made in substantial conformity with the UCCJEA. The law requires substantial conformity with the UCCJEA, not just mere conformity. Since the UCCJEA is a purely procedural statute, practitioners should ensure that they have complied with each procedural and jurisdictional step of the UCCJEA, or face a collateral attack in another jurisdiction based on the fact that the order was not made in substantial conformity with the UCCJEA.
At the time of filing the enforcement petition, the petitioner must comply with the filing requirements outlined in Step One to ensure that the enforcement petition is properly registered. Additionally, the petitioner must state whether the court that issued the child custody determination identified the jurisdictional basis it relied upon in exercising jurisdiction, and if so, what the basis was. This ensures that the previous court’s order was made in substantial conformity with the UCCJEA. The petitioner must also provide a statement to the court that the foreign order has not been vacated, stayed, or modified by another court. This guarantees to the Florida court that the order being registered for enforcement is the last controlling order pertaining to the child in the custody dispute.
Once registered, the court must send notice to the parties listed in the petition. The notice must let the respondent know that they can contest the validity of the registration, and under what circumstances. If the respondent cannot establish that the order being registered is not in substantial conformity with the UCCJEA, has been altered by another court, and that the respondent never received proper notice, then the Florida court will enforce the foreign order as if it was one of their own, giving the foreign order Full Faith and Credit under Florida law. Additionally, if Florida determines that the petitioner is immediately entitled to the physical custody of the child, the court must order the child delivered to the petitioner. Keep in mind that the registration order is effective immediately upon commencement of the case, and can also be enforced immediately.
A petition is required to be registered pursuant to Fla. Stat. § 61.529, whether or not the petitioner is seeking to enforce or modify a previous child custody determination. Remember, however, that, a Florida court can only modify a registered child custody determination if they have jurisdiction to do so under the jurisdictional provisions of Fla. Stat. § 61.514.
STEP FOUR: Modification Petitions
A modification petition means a child custody determination that somehow changes a previous child custody determination. A modification petition has a somewhat trickier analysis; factors such as whether a parent still resides in the issuing state plays a key role in determining whether a Florida court can modify another court’s order.
In a modification petition, the home state of the child is given less priority than the issuing court’s exclusive, continuing jurisdiction to modify their orders. The home state of the child is generally given top priority in determining which state has jurisdiction, unless the petition is seeking a modification order. This is because when one parent continues to reside in the issuing state, that state is still considered the home state of the child for modification purposes. The only other way to get around exclusive, continuing jurisdiction is to have the issuing court decline to exercise their jurisdiction on a theory of inconvenient forum and lack of a significant connection to the state. With the ability of parents to easily relocate to another state in today’s day-and-age, it is important to keep a close eye of the very specific procedural rules required in a modification proceeding.
The very first step in analyzing a modification petition is to determine where the foreign order came from, in other words, who is the issuing state. Next, the court must determine where the parents (or persons acting as parents) and child reside. A Florida court cannot modify a child custody determination made by the court of another state unless Florida has jurisdiction to make an initial child custody determination, meaning Florida is the child’s home state as the child has lived in Florida for at least six months on the date of commencement, and at least one of the following applies:
(a) The issuing court determines it no longer has exclusive, continuing jurisdiction;
(b) The issuing court determines that Florida would be a more convenient forum, or;
(c) The issuing court or the Florida court determines that neither the child, the parents, nor a person acting as a parent presently reside in the issuing state.
Exclusive, continuing jurisdiction of the issuing court is a factual determination that the court must consider in a modification proceeding pursuant to Fla. Stat. § 61.515. An issuing court retains this top-level jurisdiction until either one of the following occurs:
(a) Florida determines that neither the child, the parents, nor a person acting as a parent have a significant connection with Florida and that substantial evidence is no longer available in Florida concerning the child’s care, protection, training, and personal relationships, or;
(b) Either Florida or the issuing state determines that neither the child, the parents, nor a person acting as a parent presently reside in Florida.
As you can see, the modification requirements can be tricky. The best way to analyze a modification proceeding is to break each step down, and analyze each factor individually. The first question you must ask is does the child or at least one parent (or person acting as a parent) still reside in the issuing state. If the answer is no, then Florida can modify the out-of-state order because the issuing state no longer has exclusive, continuing jurisdiction under Fla. Stat. § 61.515(b) because no party remains in the issuing state.
However, even if a party remains in the issuing state, the issuing state can still decline jurisdiction on the basis that Florida would be a more convenient forum for the new child custody determination. If the issuing state declines jurisdiction, Florida can proceed with the modification as the issuing state has relinquished their jurisdiction to the Florida court. This process is explained in more detail in Step Five: Declining Jurisdiction.
This brings us to our last analysis of the modification petitions. We have determined that a Florida court can only modify an out-of-state child custody determination if no party remains in the issuing state, thus the issuing state no longer retains exclusive, continuing jurisdiction, or if the issuing state declined to exercise their jurisdiction based on the fact that Florida would be a more appropriate forum and the parties have no significant connection with the issuing state. If neither of these have occurred, and a party still remains in the issuing state, the analysis focuses on the exclusive, continuing jurisdictional requirements of Fla. Stat. § 65.515.
Pursuant to Fla. Stat. § 65.515(1)(a), if Florida determines that no party has a significant connection with the other state and that there is no longer substantial evidence available in the other state concerning the child’s care, protection, training, and personal relationships, then the other state will lose their exclusive, continuing jurisdiction. This is a two-part test that requires a factual determination of significant connection and substantial evidence concerning the child. Both requirements must be met for the issuing state to lose its exclusive, continuing jurisdiction if one party remains in the issuing state.
Temporary Jurisdiction When There Is No Modification Jurisdiction
So long as all of the jurisdictional requirements are met, Florida can proceed with a modification of an out-of-state custody determination. However, even if Florida lacks the jurisdiction to proceed on a modification proceeding, it may be able to exercise temporary jurisdiction under Fla. Sta. § 61.527. Under this statute, Florida can exercise this temporary jurisdiction if it is merely enforcing visitation provisions of another state’s order, or giving visitation to a parent because the out-of-state order does not provide for a specific visitation schedule. These types of orders are only temporary, and must have an expiration date. That is, the court order must specifically state the date in which the temporary order will expire. This temporary order gives the party a chance to go back to the issuing state that still has jurisdiction and proceed with a modification order.
Another temporary exercise of jurisdiction is if a child is physically present in Florida, then Florida can enter a temporary emergency jurisdiction order if it is necessary in an emergency to protect the child. If there is an emergency, you would need to move on to Step Six: Temporary Emergency Jurisdiction.
STEP FIVE: Declining Jurisdiction
A Florida court as well as the issuing court have two ways in which they can decline to exercise jurisdiction. The first way, and the most common, is on the basis of that the issuing state is an inconvenient forum. The next way is on the basis of unjustifiable conduct in a Florida court.
Understanding that Florida may not always be the most appropriate forum for a child custody proceeding, the UCCJEA allows for a Florida court to decline to exercise their jurisdiction based on inconvenient forum. An inconvenient forum analysis is always done by the issuing state. This is because the issuing state is the one relinquishing their exclusive, continuing jurisdiction. The first question to be asked in an inconvenient forum analysis is whether it appears that another state would be a more convenient forum to address the child custody dispute. If the answer to this question is yes, then the Florida court can decline jurisdiction to proceed with the child custody proceeding subject to the factors outlined in Fla. Stat. § 61.520(2).
Before Florida can fully relinquish its jurisdiction to another state on the theory of inconvenient forum, the Florida court must address all factors as outlined in their state-specific statutes addressing inconvenient forum. In Florida there are eight factors outlined in Fla. Stat. § 61.520(2). Those factors include:
(a) Whether there has been any domestic violence between the parties and if so, which state is better equipped to protect the parties and the child.
(b) The length of time the child has resided outside of Florida.
(c) The distance between the Florida court and the court in the state that would assume jurisdiction.
(d) The financial circumstances of the parties.
(e) Any agreements between the parties as to which state should have jurisdiction.
(f) The nature and location of the evidence necessary to litigate the child custody proceeding, including the child’s testimony.
(g) The ability of both courts to decide the case in a timely manner.
(h) Each court’s familiarity with the facts and issues in the child custody proceeding.
Hence, if the Florida court is going to decline to exercise their continuing, exclusive jurisdiction based on the fact that another state is a more convenient forum, the Florida court must also address the significant connection/substantial evidence factors as well. This is done by evaluating the factors necessary to determine that, based on all of the facts, another court is not only more convenient, but has all of the necessary and required information to make an equitable decision regarding the custody of a child.
If a party to the child custody proceeding has engaged in unjustifiable conduct in order to secure jurisdiction in Florida, the Florida court must decline to exercise that jurisdiction unless one of the following applies:
(a) The parents or persons acting as parents have acquiesced to Florida’s exercise of jurisdiction.
(b) The other state determines that Florida is a more appropriate forum.
(c) No other state has jurisdiction to make an initial or modification child custody determination.
If Florida declines to exercise jurisdiction based on the unjustifiable conduct of one of the parties, the aggrieved party can seek any and all remedies available under the UCCJEA. If a party is seeking remedies for a case involving unjustifiable conduct, move on to Step Seven: Remedies.
STEP SIX: Temporary Emergency Jurisdiction
In order for Florida to exercise jurisdiction based on a temporary emergency, the child must be physically present in Florida and must have been abandoned or subjected to or threatened with mistreatment or abuse.
If there has been no prior child custody determination, and Florida does not have jurisdiction, the Florida child custody determination remains in effect until a child custody proceeding is commenced in the state that has jurisdiction. However, if no child custody proceeding is ever commenced in the state having jurisdiction, and Florida becomes the home state of the child, the temporary order becomes a final child custody determination.
If there has been a previous child custody determination, Florida’s exercise of emergency jurisdiction will remain temporary, and the Florida order must specifically state a date upon which the order will expire. This period of time allows the parties to commence a proceeding in the state that has jurisdiction to proceed.
Upon the commencement of another proceeding in a temporary emergency situation, the Florida court and the court having jurisdiction are required to communicate with one another in order to resolve the emergency, protect the safety of the parties and the child, and determine a period for the duration of the temporary order. Failure to comply with this requirement would render the Florida temporary emergency order not in substantial compliance with the UCCJEA and open it up for a collateral attack.
STEP SEVEN: Remedies
The courts allow for a number of remedies in child custody disputes. Generally, these remedies are only available to a petitioner who is seeking the return of a child unlawfully removed from their care and custody.
Upon the proper registration of an enforcement petition, the petitioner can file for the issuance of a warrant to take physical custody of the child if the child is likely to suffer serious imminent physical harm or be removed from Florida. The court can also issue this warrant on its own, without a request from the petitioner.
In a case involving unjustifiable conduct, Fla. Stat. § 61.521 allows a Florida court to stay the proceeding until a child custody proceeding can be commenced in the other state having jurisdiction. This ensures the safety of the child and prevents a repetition of the unjustifiable conduct. A Florida court can also charge the offending parent with expenses incurred by the petitioning parent in bringing the petition forward.
Finally, Florida courts have the authority to award expenses to the prevailing party to a child custody dispute, regardless of whether there was unjustifiable conduct.
While Florida’s version of the UCCJEA does address instances where a child may be temporarily absent from the state, it does not actually define what a temporary absence is, or how long before an absence is no longer temporary.
Temporary Absence Based on Misconduct
In cases where a child has been wrongfully removed from their home state, most states allow this absence to be considered part of their continued residence in the home state. It will almost always be the case that in instances of wrongful removal, the home state of the child will be the state in which the child was removed from.
Temporary Absence Based on Court Order
If the only reason a child is in a state is based on another state’s court order, it might be wise to gather all the facts in order to determine whether or not there is jurisdiction to proceed on a child custody dispute. Most of the time, the facts will lay themselves out to fall in line with one of the other types of jurisdiction. While this may not always be the case, let the facts determine where the jurisdictional puzzle pieces should fit.