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01/10/2014
RD- an actual child support client
"My case was handled quickly and with ease."
01/10/2014
“Prospective clients may not obtain the same or similar results.”
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Jurisdiction and Venue in Child Custody Proceedings

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Family in need of attorney

The Gainesville Child Custody Attorneys, of the Law Office of Alba & Yochim P.A., know that understanding the various provisions set forth under Florida law is not always easy for parents who do not have a background or formal training in the legal field. Interpreting the meaning, as well as application of the terms ‘jurisdiction’ and ‘venue,’ can be difficult in and of itself, let alone trying to understand their significance in a child custody or other family law proceeding. Knowing these terms—Jurisdiction and Venue—can be very important, particularly for parents who have moved or intend to move, whether to or from Florida, or to or from a different county within the state of Florida.

JURISDICTION

Defining Jurisdiction

The term ‘jurisdiction,’ in particular, is commonly misunderstood, because it can refer both to locational, as well as authoritative factors. In differentiating between the two, it can be helpful to consider the distinction between—a person being ‘IN’ a jurisdiction—and—a person ‘HAVING’ jurisdiction. Consider ‘removal from the jurisdiction’ (locational); and “the court has jurisdiction” (authoritative).

In family law proceedings involving the custody of a minor child, it is imperative that parents understand the term ‘jurisdiction’ in the authoritative sense. Generally speaking, having jurisdiction over something means having the power and legal authority to hear and determine causes of action. A court can have jurisdiction over (1) a person/party; (2) subject/issue/matter; and/or (3) particular decision/judgment.

Jurisdiction to make initial custody determination

Pursuant to Fla. Stat. 61.514, a court in Florida has jurisdiction to make an initial child custody determination if this state is the child’s home state on the date a proceeding is commenced—or—this state was the home state of the child within 6 months before commencement and the child is not in Florida, but a parent (or person acting as a parent) continues to live here.

However, parents must keep in mind that Florida’s ability to exercise jurisdiction will be dependent on whether another state already has jurisdiction over the child/issue/matter. In example, where a child is the subject of a pending proceeding in another state, or was the subject of a prior proceeding in another state, that state will generally continue to have jurisdiction, unless and until it is determined otherwise.

In some cases, the court of another state will decline to exercise jurisdiction on the grounds that it is more appropriate for the matter to be heard by a court in Florida. When this occurs, Florida has jurisdiction to make an initial custody determination if the child, and at least one of the child’s parents (or person acting as a parent), have a significant connection with this state—and—there is substantial evidence available in Florida concerning the child’s care, protection, training and personal relationships.

‘Significant connection,’ to a state requires more than mere physical presence, and can include things such as changing address/receiving mail in Florida, obtaining a Florida driver’s license, registering to vote in Florida, registering vehicles in Florida, and/or purchasing a home in Florida. Generally, the more ties that a parent can show that they have with a state, the more likely they are to establish a significant connection.

Where the child has never been subject to a prior custody proceeding, determining jurisdiction can be more complex, particularly where one or both parents have lived with the child in multiple states. Here, the court must determine the child’s home state, as well as evaluate whether there is a substantial connection, as well as substantial evidence demonstrating such connection, with any (other) state. If no other court in any other state would have jurisdiction, then Florida will (generally) have jurisdiction.

However, keep in mind that Florida courts, like the courts in other states, can also decline jurisdiction, in certain circumstances. For example, where a parent has engaged in ‘unjustifiable conduct,’ such as wrongfully removing the child, concealing a child’s whereabouts, and/or forum shopping, the court may decline to exercise jurisdiction.

Continuing & Exclusive Jurisdiction

When a child custody determination has been made by a Florida court, Florida shall have ‘continuing and exclusive jurisdiction’ over a matter unless and until:

  • The parent and child no longer have a significant connection with Florida
  • A court determines that that the parent and child do not presently reside in this state

However, parents should know that eliminating connections with Florida and/or moving out of the state, will not automatically alter which court has jurisdiction. Jurisdiction is determined in accordance with the UCCJEA, which has been adopted in every state except Massachusetts (although legislation to enact the UCCJEA is pending). Consequently, parents are advised to refrain from forum shopping. Further, because jurisdictional issues can be complex and confusing, parents are much better off seeking legal advice from a family law attorney that is experienced in handling child custody matters.

Temporary Emergency Jurisdiction

In some cases, it may be necessary for a Florida court to exercise what is referred to as ‘temporary emergency jurisdiction.’ This may occur regardless as to whether the court of another state currently has jurisdiction, or jurisdiction was not previously established. Florida has temporary emergency jurisdiction if:

  • The child is physically present in this state, and:
    • The child has been abandoned; or
    • 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

The effect of temporary orders that pertain to jurisdiction in child custody matters,will depend on whether or not there is a previous custody determination that can be enforced, as follows:

No previous child custody determination

When a court, under the authority of temporary emergency jurisdiction, makes a determination regarding child custody, that order shall remain in effect until an order is obtained from the court that does have jurisdiction. However, if an initial determination is entered by a Florida court that is based upon temporary emergency jurisdiction, and Florida thereafter becomes the child’s home state, the custody determination shall become final if either:

(1) a proceeding has not been commenced in a state having jurisdiction; or

(2) a proceeding is not subsequently commenced in a state having jurisdiction

Existing enforceable child custody determination

When there is an existing order, and Florida exercises temporary emergency jurisdiction in making a determination regarding custody, the order:

(1) 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; and

(2) remains in effect until:

(a) an order is obtained from the other state within the period specified; or

(b) the period expires.

In addition, where a Florida court is asked to exercise temporary emergency jurisdiction in making a child custody determination, but later learns that another court has or may have jurisdiction, the court shall, pursuant to statute, “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.” In other words, if a parent asks a Florida court to determine a custodial issue on an emergency basis, and the court is subsequently informed that a proceeding regarding the custody of a minor child has either been commenced or determined in another state, the courts will communicate with one another.

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VENUE

The term venue, also referred to as forum, is also commonly misinterpreted, and understandably so. Similar to jurisdiction, venue can refer a locational as well as authoritative factors. In general the term refers to the location of the court (i.e. which county in Florida), that a proceeding may be adjudicated. However, it is also necessary to consider venue in the authoritative sense, both in terms of a parties right to bring forth a matter in a particular county, and the court’s right to rule upon a matter in that county (i.e. is venue selected proper?).

Determining the appropriate venue will depend on a variety of factors including, the nature of the family law proceeding, the parties most recent and/or current residence, whether a matter is currently pending or previously decided in a particular county, as well as convenience of the parties involved.

In cases where the parents were never married, and paternity is disputed, such actions may be brought forth in the county in which either parent resides. Whereas, in cases where the parents of minor children are divorcing, the appropriate venue is generally where the parties last resided as husband and wife. However, if prior to filing for divorce, the parents have been separated for some time, and since have both relocated to a different, or separate counties, issues can arise over which venue is most appropriate. Further, if the parties have relocated to different states, there may be both jurisdictional and venue issues.

Selecting the proper venue, at the onset of a matter, can save parents both time and money, as well as assist in ensuring that the matter is handled in an expeditious matter. An experienced attorney can determine the venue most appropriate for your specific case. For some parent’s, their only question or concern is a venue-related issue, and in such cases seeking advice from an attorney can be highly beneficial, even if only in a limited-capacity basis.

Where venue has already been established, or there is a dispute over venue, it may be necessary to change/transfer venue. This may occur upon the court’s own initiative, one party’s request (motion) to the court, or an agreement between the parents. For more on this topic, see ‘Transfer of Venue.’