Between 2012 and 2013, 28 million Americans ages 15 and older relocated, equaling 11 percent of the population in that age group. As a family law practitioner, I have encountered several jurisdictional issues related to original dissolution of marriage, enforcement issues, modifications of time sharing and support issues. In dealing with these issues, best practices require the incorporation of the Florida Statutes, Florida case law, UCCJEA and in some cases, federal law.
Section 61.021, Florida Statutes requires that one of the parties must reside in Florida for more than six months prior to the filing of the petition before the court will obtain subject-matter jurisdiction. It does not specify the petitioner must be the resident. Therefore, it can be advantageous for the wife, who is still living outside the state to file in Florida against the husband who has relocated. The non-party may file for dissolution of marriage based on the other party’s residence. Loffer v. Loffer, 620 So. 2d 1048 (Fla. 1st DCA 1993). Therefore, personal jurisdiction can be waived by the filing spouse and if residency can be shown, the court will maintain jurisdiction.
The test of residency is physical presence in Florida and the concurrent intent to be a permanent residence. See Cruickshank v.Cruickshank, 420 So.2d 914 (Fla. 1st DCA 1982); Fields v. Fields, 782 So. 2d 530, 534 (Fla. 1st DCA 2001). Most oft en, in relocation situations, there will be employment agreements, lease agreements or contracts on property, driver’s licenses or voter registration that supports the residency of the spouse. Courts have also held “income and other tax returns; homestead exemptions; voting registration; driver’s license; place of business affairs; use of ‘residence’; and number of days in the state” qualify as evidence to support the residency requirement for dissolution proceedings. Marshall v. Marshall, 988 So.2d 644 (4th DCA 2008).
If subject matter jurisdiction can be met, the court can dissolve the marital relationship of the parties, even if the court has personal jurisdiction over only one spouse. Orbe v. Orbe, 651 SO. 2d 1295 (1st DCA 1995).
A common occurrence in today’s society is that clients will present with a foreign state final judgment and seek assistance in enforcement and modification in Florida. In that instance, the trial court that entered the final judgment of dissolution of marriage loses its exclusive jurisdiction to determine child custody issues where the parents and child all moved to another state and no longer maintained a significant connection with the forum state. Tidwell v. Tidwell, 983 So.2d 742 (Fla. 4th DCA 2008). However, jurisdiction of the initial state is not lost when one party remains in the state and “significant contact jurisdiction has not been broken by for instance, failure to exercise visitation.” Roby v. Nelson, 562 So.2d. 375,378 (Fla. 4th DCA 1990). Not all instances will cause the original court to lose exclusive jurisdiction, but it still may be appropriate to petition the court to take jurisdiction of the matter.
Once you enter the realm of the UUCJEA, it can be a complicated web of statutes and different interpretations, but at the end, you are arguing inconvenient forum in the original jurisdiction. Pursuant to 61.520, FL Stat. (2016):
A court of this state which has jurisdiction under this part to make a child custody determination 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.
Since incepted in 1997, UCCJEA has been adopted by all U.S. states and therefore, the above provision will be found in an accompanying state statute, depending on where you are arguing transfer of jurisdiction. In practice, the most powerful aspect of the UCCJEA is the provision requesting communication between jurisdictions. FL. Stat. 61.511 (2016). This provision provides that the courts can communicate and if the parties request to participate, the court must be given an opportunity to present facts and legal arguments before a decision on jurisdiction is made. FL. Stat. 61.511 (2) (2016).
When balancing the best interests of the children in modification cases, the courts should not need much persuasion to communicate with another jurisdiction to determine the best outcome. However, the court system is congested and it will likely take substantial pleadings and coordinating with out-of-state counsel and judiciary to make the communication happen. Thus far in my practice, I have found the Florida judiciary more likely to make the effort to communicate than the out-of-state judiciary and willing to keep the best interests of the children at the forefront of jurisdictional decisions.