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Mara Law, P.A.
Mara Law, P.A.

UNHAPPY WITH YOUR OUT-OF-STATE CUSTODY ORDER?

Tue, Jul 05, 2016 at 10:20AM

You are a recent transplant from the North and you have landed in our great and most-of-the-time, hot state of Florida. You are getting adjusted to the facts of life here. You can't leave unsealed food on the kitchen counter. Bread has to go in the fridge. And if you haven't figured it out already, you really shouldn't be sitting in the grass for too long (Is there any cosmic reason for fire ants to exist?). Mildew grows at an alarming rate and every day is pretty much a bad hair day. Don't worry, you will be glad you are here when November hits and you are still able to wear shorts.

But there's this other non-heat/bug-related problem that has arisen since you moved to Florida. It's your out-of-state divorce judgment and the custody and visitation order that is contained therein. It's just not working now because the situation has changed.

Let's say for example, your Massachusetts judgment (we call it a "foreign judgment") stipulates that the minor children are to be with Dad during the school year and with you, Mom, over the summer. This worked well while Dad was living in Massachusetts with the children and you were here in Florida. Timesharing (visitation) with the children on a weekly basis was not practicable, so this was a decent solution.

Subsequently, Dad and the children moved to Florida. They now live in close proximity to you and seeing the kids on a regular basis is what you want to happen. But Dad is used to the way things were and doesn't want the arrangement to change.

You may not be stuck with the Massachusetts timesharing scenario. You may have a chance to persuade the Court to modify the current timesharing arrangement if certain required elements for modification can be proven. Do you have to go to Massachusetts to effectuate this? It's possible that you don't.

The process that needs to happen is called "domesticating a foreign judgment." In essence, we need to petition our Florida court for the case to be "brought" from the Massachusetts court to the Florida court, so it can be litigated here. If a modification is what we wish, we must petition for that as well.

This can be a rather complicated process, especially if the other party contests what  Florida Statutes Section 61.528 refers to as "registration" (domestication) of the foreign order. Jurisdictional issues, notice issues, and issues such as the out-of-state court taking certain actions, can be used to contest such registration.

In addition, your situation may differ from the very limited example presented here. If your child no longer lives here or has never lived here (e.g. Dad and child moved to Massachusetts and Mom stayed in Florida or Mom and child live in Massachusetts and Dad just moved to Florida) there may be further jurisdictional issues which can prevent domestication such as the subject matter jurisdiction necessary to proceed which is dictated by the "home state" of the child.

The home state of the child is defined by the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA). This definition can be found in our Florida Statutes Chapter 61 Part II, specifically Florida Statutes Section 61.503. However simple the definition of "home state," courts around the country "have struggled with the apparent conflict between the jurisdiction provision providing for the exercise of jurisdiction if, at any time during the six months preceding the filing of the custody proceeding, the state is the child's home state and the definition of 'home state,' which seems to require the consecutive six months to be the six months immediately preceding the filing of the custody proceeding." Sarpel v. Eflanli, 65 So.3d 1080 (Fla 4th DCA 2011)

In the Sarpel case, the Court concluded that the provision allowing for the exercise of jurisdiction if the state qualified as the child's home state at any time during the six months preceding the filing of the custody proceedings, was intended to enlarge, not narrow, the assertion of "home state" jurisdiction. The Fourth District Court of Appeals held that Florida Statutes 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.

There are other scenarios in which it is not as clear as to what state would be the appropriate forum for the case. Florida Statutes Section 61.514(1)(b) allows for arguments relating to significant contacts in the state in order to attempt to obtain home state designation for the child.

You can see how complicated a seemingly-simple issue can be.

 

I know how important spending time with your child is to you. I am a parent as well. If this procedure is not done correctly or argued astutely, you may risk not being able to modify your existing order and obtaining the timesharing arrangement that may be best for the children and for you. Please call our office for a consultation. I am looking forward to helping you.


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Mara Law, P.A. is located in Ormond Beach, FL and serves clients in and around Bunnell, New Smyrna Beach, De Leon Springs, Palm Coast, Daytona Beach, Flagler Beach, Barberville, Pierson, Seville, Port Orange, Flagler County and Volusia County.

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