Posted by Nydia Streets of Streets Law in Florida Child Custody

In order for a Florida court to exercise jurisdiction over a child custody matter, the child at issue must have resided in Florida for at least six months prior to the date of filing a petition. Whether or not a child lived in Florida for the required period of time is a question of fact that is decided after an evidentiary hearing. Florida Statutes authorize an award of attorney’s fees for a parent who enforces a foreign custody order in Florida. These were issues in the case Alvarez v. Jimenez, 3D20-610 (Fla. 3d DCA December 1, 2021).

The former husband filed a petition for divorce in Florida alleging that the parties had lived in Florida for the six months immediately preceding the filing. A default was entered against the former wife because she did not respond to the petition. Based on that, a final judgment was entered finding that Florida was the home state of the parties’ children, and that the former wife wrongfully retained them in Colombia. The court ordered that upon the children’s return to Florida, the former husband would have sole parental responsibility and the former wife would have supervised visits. The former wife filed a motion to vacate the portions of the order concerning child custody and after a hearing, the trial court granted her motion and also awarded her attorney’s fees under section 61.535 of the Florida Statutes which authorizes a fee award when a party successfully enforces a foreign child custody order. The former husband appealed.

The appellate court upheld the trial court’s determination that Florida had no subject matter jurisdiction to make an initial child custody ruling. As to the attorney’s fees, the court reversed, holding “However, we reverse the order awarding attorney’s fees, which we review de novo. [internal citations omitted]. The Mother was not entitled to an award of attorney’s fees under section 61.535 because her motion sought to vacate a final judgment, not to enforce a foreign custody decree under the UCCJEA.” The appellate court remanded for the trial court to consider the former wife’s request for attorney’s fees under section 61.16 of the Florida Statutes based on need and ability to pay.

If you have questions about enforcement of a foreign child custody order in Florida, schedule a consultation with a Miami family law attorney.