Posted by Nydia Streets of Streets Law in Florida Child Custody

When the parents of a child who is subject to a Florida child custody case live in two different states, or even countries, jurisdiction may be challenged by one of the parties. While a court does not need personal jurisdiction over a parent to make an initial child custody determination, it does need it to adjudicate financial issues. The issue of personal jurisdiction was raised in the case Edwards v. Codrington, 5D20-1966 (Fla. 5th DCA July 30, 2021).

The child in this case was conceived in Belize where the mother lived her entire life. The child lived in Belize until he was four, at which time the mother agreed the father could bring the child to Florida for medical treatment and to attend school. The mother alleged she withdrew her consent for the child to stay in Florida when the father refused to bring the child to Belize for summer break. The father eventually filed a petition to determine paternity, for child support, and to establish a parenting plan. After the mother was served in Belize, she filed an answer without an attorney stating “I am a citizen of Belize and have lived in Belize all of my life. I do not have a visa to travel to the U.S. nor do I have the resources to travel to the US to defend this claim or to retain an attorney in the U.S. to act on my behalf.”

A law firm later entered a notice of appearance on behalf of the mother, arguing there was no personal jurisdiction over her and that Florida was an inconvenient forum. It also moved to amend the mother’s pro se answer previously filed, in order to assert new defenses and counter-petition under the Hague Convention. The trial court held a hearing and determined it did have jurisdiction under the UCCJEA, that the mother waived her argument regarding personal jurisdiction because she demanded parenting plan conditions in her pro se answer, and it denied her request to amend her answer, stating she was doing so just to correct her previous request for affirmative relief. The mother appealed.

The appellate court affirmed the trial court’s order, holding “We also affirm the trial court’s ruling on its personal jurisdiction over Edwards, although its ultimate rationale was flawed. [. . .] The trial court correctly noted that it did not need personal jurisdiction over Edwards to make an initial custody determination over the child. See § 61.514(3), Fla. Stat. (2020). But the trial court erroneously concluded that Edwards sought affirmative relief in her pro se answer. If a litigant requests affirmative relief in her responsive pleading, then she consents to personal jurisdiction. [internal citation omitted]. Florida’s longarm statute describes affirmative relief as ‘causes of action unrelated to the transaction forming the basis of the plaintiff’s claim.’ § 48.193(4), Fla. Stat. [internal citation omitted]. The conditions Edwards outlined to provide her acceptance to Codrington’s proposed parenting plan did not constitute affirmative relief. Instead, they were conventional rejoinders to any parenting plan request.”

The court went on “If [the mother] wanted to assert a lack of personal jurisdiction, she needed to raise that defense in her pro se answer. Her failure to do so results in a waiver of her ability to raise this defense. [. . .] We cannot conclude her pro se answer complied with rule 12.140(b)’s plain language. We are mindful that we construe pro se filings liberally. [internal citation omitted]. Thus, [the mother] could argue that she outlined the grounds through which the trial court lacked personal jurisdiction over her. Indeed, in her pro se answer, she stated that she lived her entire life in Belize, had never been to the United States, could not obtain a visa to travel here to fight for custody of her son, and could not afford a lawyer to do so on her behalf. Unfortunately, however, pro se litigants are still subject to procedural rules. [. . .] [The mother’s] pro se answer lacks the word ‘jurisdiction,’ much less a specific and particular legal argument why the trial court lacked it. To conclude [the mother] had raised a valid challenge to personal jurisdiction in her pro se answer, we would have to ignore rule 12.140(b)’s plain language requiring a specific and particular legal argument.”

Consult with a Miami family law attorney to understand your rights and remedies when faced with a Florida family law case.