Posted by Nydia Streets of Streets Law in Florida Child Custody

When a parent moves out-of-state with a child after Florida has made an initial child custody determination, can the other state assume jurisdiction over the child for purposes of entering further orders concerning child custody? The answer depends on factors listed in chapter 61.515 of the Florida Statutes. This was an issue in the case Litsch v. Litsch, 5D22-2632 (Fla. 5th DCA October 13, 2023).

When the parties originally divorced in Florida, an initial child custody determination was made wherein the parties agreed the child would not be removed from Florida absent a written agreement or court order. The parties subsequently agreed for the child to temporarily live with the mother in Illinois. The child was required to be hospitalized in Illinois, and the father expressed his disappointment regarding the mother’s failure to notify him of the hospitalization. He let her know he planned to travel to Illinois to bring the child back to Florida. The mother retained an attorney in Illinois and filed an action in Illinois to keep the child in Illinois. The father filed motions in Florida to try to regain primary time-sharing in Florida. A hearing was held in which both parties, their attorneys and both state’s judges participated. The Illinois court ultimately entered an order assuming jurisdiction and stating the Florida court ceded jurisdiction and that the Illinois was now the home state of the child. The father appealed.

The appellate court first noted that referral to Illinois as the home state of the child was incorrect since home state is referenced as it relates to initial child custody jurisdiction. Since Florida made the initial child custody determination, Florida continued to be the home state of the child. The court noted “However, once a court has made an initial child custody determination under section 61.514, that court has ‘exclusive, continuing jurisdiction” over the determination until: (a) A court of this state determines that the child, the child's parents, and any person acting as a parent do not have a significant connection with this state and that substantial evidence is no longer available in this state concerning the child's care, protection, training, and personal relationships; or (b) A court of this state or a court of another state determines that the child, the child's parent,[3] and any person acting as a parent do not presently reside in this state. § 61.515(1), Fla. Stat. (2022).”

The court also cited “Alternatively, a Florida court with exclusive, continuing jurisdiction “may decline to exercise its jurisdiction at any time if it determines that it is an inconvenient forum under the circumstances and that a court of another state is a more appropriate forum.” § 61.520, Fla. Stat. (2022). Before doing so, however, the court must consider whether it is appropriate for a court of another state to exercise jurisdiction, by considering all relevant factors, including eight statutory factors. § 61.520(2), Fla. Stat. (2022).”

The court concluded “Appellee correctly asserts that the Florida court based its decision on more facts than merely the amount of time the child had been living in Illinois. The Florida court stated that Illinois was now the child’s home state, and Illinois assuming jurisdiction would serve the child’s best interest because the child had been living in Illinois for a “lengthy period of time” and receiving services there to address his needs. The Florida court also agreed with the Illinois court’s additional findings that the child had been living in Illinois based on the parties’ prior agreement, the child attended school and therapy in Illinois, the child was involved in the community, and that continuity was important for the child. However, these statements do not support the Florida court’s decision to cede its exclusive, continuing jurisdiction to Illinois under section 61.515(1)(a) or (b), nor could they have because Appellant still resided in Florida and the child still had significant contact with Florida. Nor do these statements support ceding jurisdiction under 61.520 (inconvenient forum) because the findings do not conform to the statutory requirements of that section.”

The case was remanded “with instructions to the Florida court to vacate its decision to decline its exclusive, continuing jurisdiction, and to ‘follow the procedures established in the UCCJEA in determining whether it should proceed to hear any matter related to the custody of the child.’ Bosh v. Mathis, 99 So. 3d 631 (Fla. 5th DCA 2012). Those procedures include giving each party the opportunity to present evidence.” Schedule your consultation with a Miami family law attorney to understand how the law may apply to the facts of your case.