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  1. #1
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    Default How to Modify UCCJEA Jurisdiction in a Child Custody Case

    My question involves a child custody case from the State of: FLORIDA

    Child was born in Florida and at 5 months moved overseas with parents. Father decided to return to Florida and a year later, divorce was filed in Florida. Physical custody remained with mother overseas, court ordered shared custody and visitation. Child has lived overseas for the past 6 years with mother and have no ties to Florida anymore, father still lives in Florida.
    Father is now suing for custody. Can mother request FLORIDA to release jurisdiction to be changed to the foreign country under UCCJEA as nor child or mother live in FL any longer? FL has no evidence of child's care or wellbeing as stated in UCCJEA.

  2. #2
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    Default Re: Can the Jurisdiction Under Uccjea Be Modified in a Child Custody Case

    Quote Quoting vale007
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    My question involves a child custody case from the State of: FLORIDA

    Child was born in Florida and at 5 months moved overseas with parents. Father decided to return to Florida and a year later, divorce was filed in Florida. Physical custody remained with mother overseas, court ordered shared custody and visitation. Child has lived overseas for the past 6 years with mother and have no ties to Florida anymore, father still lives in Florida.
    Father is now suing for custody. Can mother request FLORIDA to release jurisdiction to be changed to the foreign country under UCCJEA as nor child or mother live in FL any longer? FL has no evidence of child's care or wellbeing as stated in UCCJEA.
    Florida had absolutely no jurisdiction to make any orders regarding custody or visitation for the child as the child was not a resident of Florida. Mom needs to immediately file for custody in her country, and needs an attorney to challenge Florida's jurisdiction.

  3. #3
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    Default Re: Can the Jurisdiction Under Uccjea Be Modified in a Child Custody Case

    llworking, thank you for your response.

    So, even if the divorce and parenting plan were initially filed in Florida (mistakely so apparently), can this issue be challenged? Or will Florida invoke the "exclusive and continuous jurisdiction" under UCCJEA?

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    Default Re: Can the Jurisdiction Under Uccjea Be Modified in a Child Custody Case

    Quote Quoting vale007
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    llworking, thank you for your response.

    So, even if the divorce and parenting plan were initially filed in Florida (mistakely so apparently), can this issue be challenged? Or will Florida invoke the "exclusive and continuous jurisdiction" under UCCJEA?
    The UCCJEA doesn't apply at all. It is not an international law, it is a US law. The laws of mom's country apply as that is the country of the child's legal residence. Any US court order is unenforceable in mom's country unless dad takes the order to the courts in mom's country and the courts in mom's country uphold the US court order.

    That is unlikely to happen if mom defends herself in her country. Mom need to hire an attorney in FL to challenge Florida's jurisdiction. The reason why mom must challenge the jurisdiction is because if dad gets a custody order in FL, and the child subsequently visits the father in FL, dad could keep the child and refuse to send the child back to the child's home country.

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    Default Re: Can the Jurisdiction Under Uccjea Be Modified in a Child Custody Case

    While UCCJEA in itself is not enforceable in another country, a US court order which exercises jurisdiction over custody of a child who is a US citizen MAY be enforceable in that country.

    Problem here is Florida's initial jurisdiction over a child custody Order that is now almost five years old was never challenged. And we do not know to what extent a court of another country will invoke jurisdiction over a child who is a US citizen, or how moms citizenship may affect this, or what that country's residency requirements were at the time suit was filed in Florida. So the question of jurisdiction may not be as cut and dry as if this was between states.

    A proper response to the Florida petition may be to move to change jurisdiction to the child's new "home state". Aside from raising any points on who should have had original jurisdiction, in this instance Florida may very well cede jurisdiction based upon a duly raised claim of Inconvenient Forum, which certainly appears to be the case here.

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    Default Re: Can the Jurisdiction Under Uccjea Be Modified in a Child Custody Case

    Quote Quoting vale007
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    Father is now suing for custody. Can mother request FLORIDA to release jurisdiction to be changed to the foreign country under UCCJEA as nor child or mother live in FL any longer? FL has no evidence of child's care or wellbeing as stated in UCCJEA.
    Quote Quoting llworking
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    Florida had absolutely no jurisdiction to make any orders regarding custody or visitation for the child as the child was not a resident of Florida. Mom needs to immediately file for custody in her country, and needs an attorney to challenge Florida's jurisdiction.
    Depending upon the full facts, Florida could have properly exercised jurisdiction over the child - for example, if the parents were overseas due to military service and maintained their legal domicile in Florida, or if the extended absence otherwise did not involve the abandonment of domicile in Florida (e.g., a sabbatical or extended trip to perform research, again without abandoning Florida domicile). I'm not going to assume that such facts existed, and am simply noting that cases can arise when a full year's absence from the state won't prevent a state from being accurately described as the child's home state. The issue of waiver of any objection to the court's original jurisdiction would also be a potential issue at this point, as would a challenge to that exercise if the pleadings submitted by the parties and/or testimony in support of the divorce judgment and custody order recited that the child was domiciled in Florida. Given the likely complexity of a challenge to the court's original exercise of jurisdiction at this late date, if that is to be attempted it would be a good idea to work with a lawyer.
    Quote Quoting gator1
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    While UCCJEA in itself is not enforceable in another country, a US court order which exercises jurisdiction over custody of a child who is a US citizen MAY be enforceable in that country.
    Agreed. And if the other nation does not recognize U.S. custody and support orders, it will be all the harder to convince a Florida court that it should surrender jurisdiction. If the Florida court upholds its original exercise of jurisdiction, or deems the issue waived, it will be necessary to establish that the foreign nation has laws that are substantially similar to the jurisdictional provisions of the UCCJEA:
    Quote Quoting Florida Statutes, Sec. 61.506 International application of part.
    (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 ss. 61.501-61.523.

    (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 ss. 61.524-61.540.

    (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.
    That inherently means that it would respect the jurisdiction of the Florida Court over a continuing custody matter. See Fl. Stat. Sec. 61.519.
    Quote Quoting gator1
    A proper response to the Florida petition may be to move to change jurisdiction to the child's new "home state".
    If you're doing that, assuming the facts support it, it may be appropriate to challenge whether the court ever had jurisdiction over custody issues. But no matter what challenge is filed, it would be sensible to be prepared to document the foreign nation's respect for U.S. custody orders and custody jurisdiction.

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    Default Re: Can the Jurisdiction Under Uccjea Be Modified in a Child Custody Case

    Quote Quoting gator1
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    While UCCJEA in itself is not enforceable in another country, a US court order which exercises jurisdiction over custody of a child who is a US citizen MAY be enforceable in that country.

    Problem here is Florida's initial jurisdiction over a child custody Order that is now almost five years old was never challenged. And we do not know to what extent a court of another country will invoke jurisdiction over a child who is a US citizen, or how moms citizenship may affect this, or what that country's residency requirements were at the time suit was filed in Florida. So the question of jurisdiction may not be as cut and dry as if this was between states.

    A proper response to the Florida petition may be to move to change jurisdiction to the child's new "home state". Aside from raising any points on who should have had original jurisdiction, in this instance Florida may very well cede jurisdiction based upon a duly raised claim of Inconvenient Forum, which certainly appears to be the case here.
    Actually that is also incorrect. Assuming that the country in question is a Hague Convention country, jurisdiction automatically changes as soon as the child has been a legal resident of the new country for two years. It absolutely does not matter what the child or mother's citizenship is. This child has been a legal resident of the new country for six years. Since the US signed that treaty, the US has to abide by its terms.

    If the country in question is NOT a Hague Convention country, then its not going to honor US court orders, period. The country in question would re-try the matter under its own laws if the father attempted to enforce any US court orders in his country.

    Again though, I have to emphasize that a state court judge, if unfamiliar with International law or who is lied to about the residence of the child could give dad a custody order (possibly by default if mom doesn't act) and therefore dad could refuse to return the child if the child enters the US. Mom would then have to mount a Hague Convention Case to get the child back, which could be very expensive. Its far better that mom respond to dad's current suit by invoking the Hague Convention NOW...which will force the judge to dismiss the suit.

  8. #8
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    Default Re: Can the Jurisdiction Under Uccjea Be Modified in a Child Custody Case

    The definition of a child's nation of habitual residence is not provided in the Hague Convention on the Civil Aspects of International Child Abduction, and different member nations have very different interpretations of what that term means. There is authority in the U.S. for jurisdiction not being established after two years in a foreign nation. Some of those cases are listed in Mozes v. Mozes, 239 F.3d 1067, 1070 (9th Cir.2001). Also, that convention relates to the return of children to their nation of habitual residence when taken from that nation by a parent, not to the overruling of a valid, foreign child custody order. Were a Florida court exercising its exclusive, continuing jurisdiction to order a modification of custody, it would not be enough to defeat jurisdiction to simply claim that the child had lived in the (foreign nation presumed to be a signatory to the Hague Convention) for two or more years. See, e.g., the discussion in Pieri v. Superior Court (1991) 1 Cal.App.4th 114, 122. Also, were the child retained pursuant to a Florida court order, the court would be justified in finding the Convention inapplicable to a subsequent effort to have the child returned to (presumed member nation) because the Convention only applies when removal and retention is wrongful.

  9. #9
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    Default Re: Can the Jurisdiction Under Uccjea Be Modified in a Child Custody Case

    Sorry for the delay in responding.

    I wanted to share some more info to clarify the picture. The country in question in Bolivia, who is not a "member" of the Hague but is a party state that has signed the intercountry agreement of protection of children and intercountry adoptions.

    Both child and I have dual US/Bolivian citizenship. Relocation to Bolivia was not temporary or military.

  10. #10
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    Default Re: Can the Jurisdiction Under Uccjea Be Modified in a Child Custody Case

    Quote Quoting vale007
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    Sorry for the delay in responding.

    I wanted to share some more info to clarify the picture. The country in question in Bolivia, who is not a "member" of the Hague but is a party state that has signed the intercountry agreement of protection of children and intercountry adoptions.

    Both child and I have dual US/Bolivian citizenship. Relocation to Bolivia was not temporary or military.
    Florida absolutely should not have jurisdiction. Mom needs to file for custody in Bolivia.

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