Posted by Nydia Streets of Streets Law in Florida Child Custody
A case that was appealed last year in the Florida 1st District Court of Appeal was reconsidered and a new opinion was released. The case involved a dispute about child custody jurisdiction between Florida and Oregon, and this time, the maternal grandmother and paternal grandparents of the child were at odds about the court’s prior ruling on jurisdiction. The case is Lunsford v. Engle, 4D19-774 (Fla.4th DCA January 20, 2021).
The child in this case was born in Florida and resided with his mother and his maternal grandmother for the first three months of his life. Subsequently, the mother left Florida with the child, accompanied by the child’s father. It was alleged that the father struck the mother while she was driving with the child in the backseat, causing a car accident. The state of Oregon then took custody of the child and initiated what would be similar to DCF proceedings in Florida against the parents. The child was eventually placed in foster care with his step-grandmother in Palm Beach County, Florida. Oregon declined to allow the maternal grandmother to foster the child because the mother resumed living with the maternal grandmother.
Sometime later, the mother stopped residing with the maternal grandmother and left again with the father of the child. At that time, the material grandmother petitioned a Florida court for temporary custody of the child. The grandmother argued Florida was the child’s home state and that Oregon only exercised temporary emergency jurisdiction, and she filed a motion for the Oregon and Florida courts to communicate. The grandmother’s motion regarding communication between the courts was granted, and a conversation was had between the judges in the two states. Ultimately it was decided that Oregon would retain jurisdiction.
Subsequently, Oregon moved to terminate the rights of both parents and place the child up for adoption. The maternal grandmother then filed a renewed petition in Florida seeking temporary custody and requesting that all orders entered by the Oregon court subsequent to her previous motions be disregarded since Florida was always the child’s home state. After these motions were denied, the grandmother appealed. In reversing the order and siding with the grandmother, the appellate court found Florida was the child’s home state and that Oregon only exercised temporary emergency jurisdiction which was completed at the time the grandmother filed her initial petition for temporary custody. The case was remanded for the Florida court to “(1) communicate to the Oregon court that the Florida court will be exercising initial custody jurisdiction over the child; (2) allow the parties to participate in this communication if they so request; (3) disregard any orders which the Oregon court entered after the Oregon court had completed its exercise of temporary emergency jurisdiction; and (4) begin its exercise of initial custody jurisdiction with the grandmother's verified petition for temporary custody.”
After that, the child’s paternal grandparents, who by this time had adopted the child, filed a motion to vacate the appellate court’s order, arguing, (1) jurisdiction remained with Oregon and was properly retained; and (2) the Oregon court’s final judgment of adoption had been entered more than one year prior and under Oregon law, the adoption determination could not be questioned. The appellate court agreed with the paternal grandparents.
First, with regard to the jurisdiction issue, the court held “Here, the Oregon court, under section 109.751(1), Oregon Revised Statutes (2015), had temporary emergency jurisdiction over the child when the child was injured in the Oregon car accident, because that event, caused by domestic violence between the father and mother while the child was in the car, constituted an emergency in which the child was subjected to mistreatment. Because the maternal grandmother's custody petition was not commenced until after the Oregon court began exercising temporary emergency jurisdiction, the Oregon court was permitted, under section 109.751(2), Oregon Revised Statutes (2015), to continue ‘exercising temporary jurisdiction to make a custody determination ... or even become 'a final determination,' if no other court steps up.’ Dep't of Human Servs. v. J. S., 464 P.3d 157, 165 (Or. Ct. App. 2020). The Oregon court made a final determination when it terminated the biological parents' parental rights, and then approved the interested parties' adoption of the child.”
Next, concerning the child’s adoption, the court held “Here, the Oregon court entered its adoption judgment in the interested parties' favor on March 5, 2018. The maternal grandmother filed her notice of appeal with this court on March 18, 2019. Thus, even if we were to have concluded that a jurisdictional defect in the Oregon proceeding existed (which we do not, as indicated above), the Oregon adoption judgment became final and binding upon all persons. As such, we have no authority to question the validity of the adoption for any reason in this collateral proceeding.”
Last, although the appellate court agreed with the maternal grandmother that there was error in not allowing her lawyer to participate in communication between the Oregon court and the Florida court, the appellate court found this was harmless error considering the totality of the circumstances. The court held “However, we consider this procedural error to be harmless in light of the adoption's finality. The adoption's finality makes this case distinguishable from our more general precedent addressing section 61.511(2).”
Child custody litigation that involves two states can present complicated issues that are best handled by an experienced lawyer. Schedule a consultation with a Miami child custody lawyer to determine how the law may apply to your case.