Divorce Attorney Scott J. Stadler

    • 17 AUG 15
    Residency in Florida Under Six Months UCCJEA Jurisdiction of Minors

    Residency in Florida Under Six Months UCCJEA Jurisdiction of Minors

    TRIAL COURT ERRED IN FINDING HOME STATE OF MINOR CHILDREN TO BE COLORADO WHERE CHILDREN HAD RESIDED IN FLORIDA WITHIN SIX-MONTH PERIOD PRIOR TO FATHER’S FILING OF PETITION, THUS MAKING FLORIDA THEIR HOME STATE UNDER THE UCCJEA.

    The 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 a third child was born in 2012.

    In December 2011, the Father filed a verified petition for establishment of 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.

    In May 2012, a hearing was held on the Father’s second urgent motion for a child pick-up order and temporary parenting plan, at which time the Mother testified that she and the children had been Florida residents for ten months. The trial court denied the Father’s motion for a pick-up order, and found Colorado to be “the home state under the UCCJ[E]A for jurisdiction purposes.”

    The trial also stated as follows on the record:

    “In terms of factual findings, the Court finds that there is no court order determining the rights of custody that has been entered by any Court of competent jurisdiction. The Court finds that the mother had relocated to the State of Colorado on August 24th or August 25, 2011. The Court finds that the children had maintained continuous residency in the State of Colorado since that time.” Following a denial of the Father’s subsequent motion for rehearing, his appeal followed. Finding that the trial court erred by incorrectly applying the UCCJEA to the facts, the District Court reversed:

    1. “‘Under the UCCJEA, jurisdictional priority lies in the child’s home state.'”

    2. “The Florida circuit court has jurisdiction to make an initial child custody determination only if Florida is the child’s home state on the date of the commencement of the custody proceeding or was the child’s home state within six months before commencement of the proceeding and a parent or person acting as a parent continues to live in the state . . . .”

    3. “This court has concluded that ‘section 61.514(1)(a) permits the exercise of home state jurisdiction if, at any time during the six months preceding the filing of the custody proceeding, Florida qualified as the child’s home state.'”

    4. “[An earlier] case of is instructive . . . On appeal from the trial court’s ruling that Florida was not the home state of the child, the appellate court found: ‘Here, 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…. Based on the parties’ agreement on these dates, the mother lived in Florida with [the child] from January 3, 2010, until September 7, 2010, a total of eight consecutive months. September 7, 2010, is within the six-month period prior to the father’s filing of his petition. Thus, Florida qualifies as the home state under the UCCJEA and the South County court had jurisdiction to make the initial time-sharing determination.'”

    5. “In the present case…we look back to six months prior to the date of the Father’s petition, or June 8, 2011, and determine whether Florida qualified as the home state of the minor children at any time between then and December 8, 2011. On June 8, 2011 the parties’ two minor children had been living in Florida with both parents for approximately eight months. The Mother left Florida after living here with the two children for approximately ten months and within the six-month period prior to the Father’s filing of the petition, thereby making Florida the home state of the two minor children at the time of the petition.'”

    6. “Thus, the trial court erred in declining to exercise jurisdiction on the grounds that the home state of the minor children was Colorado under the UCCJEA. Barnes v. Barnes, 38 FLWD 2255, (Fla. 4th 2013).