Issue: Whether a paternity action can be filed in Florida when the child and the child’s mother reside in another state. Neither the child nor the mother has ever resided in Florida. The putative father resides in Florida.
Brief Answer: Most likely no. In order for the court to hear a paternity action, generally subject matter jurisdiction needs to be established. Subject matter jurisdiction in a paternity proceeding is established through the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA). The UCCJEA applies to paternity actions when custody is an issue. However, there are two exceptions when subject matter jurisdiction doesn’t need to be established through the UCCJEA: (1) If custody (timesharing and parental responsibility) is not at issue, the UCCJEA is inapplicable and the action can be heard in a state the child does not reside in; or (2) if custody is at issue, Florida can only have jurisdiction if, under Fla. Stat. §61.514(1)(b) (2012), no other state is the home state of the child, or if another state is, it has declined to exercise jurisdiction because Florida is the more appropriate forum.
ANALYSIS
One of the purposes of Florida Statutes §§61.501 through 61.542 (2012), also known as the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), is to avoid jurisdictional competition and conflict with courts of other states in matters of child custody which have in the past resulted in the shifting of children from state to state with harmful effects on their well-being The operative word in the name of the UCCJEA is “custody.” Custody is now defined as timesharing and parental responsibility. (See Fla. Stat. §61.13 (2012)) The UCCJEA establishes the subject matter jurisdiction of cases involving custody. Florida Statute §61.514 (2012) outlines how Florida establishes jurisdiction to make an initial child custody determination. In most cases, where the issues involve timesharing and parental responsibility, the UCCJEA will control where the action is filed. However, there are two very limited and narrow exceptions that allow a paternity action to not comply with the UCCJEA.
Custody is not at issue
One of the limited circumstance where the UCCJEA is inapplicable and therefore, subject matter jurisdiction does not need to be established, is where parental responsibility and timesharing is not at issue. In the case of Sanchez v. Fernandez, 915 So. 2d 192 (Fla. 4th DCA 2005), the court held that because the putative father agreed the mother should be awarded permanent primary residency of the child, custody was not an issue, and nothing in the record demonstrated that another jurisdiction declined to exercise jurisdiction, the Uniform Child Custody Jurisdiction and Enforcement Act was inapplicable and Florida could hear the paternity action. In Sanchez, the mother filed a petition for adjudication of paternity and sought full custody and child support. Id. The petition pled that the minor child was born in Bogota, Colombia, and the mother and the minor child resided in Bogota, Colombia. Id. The only party who had ties to Florida was the putative father, who was a resident of Broward County. Id. The putative father agreed that the mother should be awarded permanent primary residency of the child and he was not seeking custody. Id. Therefore, the district court of appeal found the UCCJEA was inapplicable. The court did note that if custody had been disputed by the parties, thus invoking the UCCJEA, the trial court would have been correct in dismissing the mother’s petition.
Similarly, in Schaffer v. Ling, 76 So. 3d 940 (Fla. 4th DCA 2011), a woman and a man met on a cruise and subsequently had sexual relations in Florida and the woman got pregnant. The woman returned to her home state of New Hampshire and gave birth to the child there. Id. Right after the child was born in New Hampshire, the putative father filed an action in Florida seeking parental responsibility and timesharing. Id. The appellate court found, that because the putative father sought both shared parental responsibility and time-sharing, he was seeking visitation with the child within the meaning of the Uniform Child Custody Jurisdiction and Enforcement Act. Id. at 942. Therefore, its provisions controlled and Florida could exercise subject-matter jurisdiction only if it was the home state or if one of the other limited exceptions under the Act apply, which they did not. Id. The child had no ties to the state of Florida. Id. The mere fact of conception in Florida was not a tie to permit Florida courts to exercise subject matter jurisdiction. Id.
Applying the legal analysis in Schaffer and Sanchez to the facts in hand, unless the putative father living in Florida was not asking for any timesharing or parental responsibility the child, he could file the paternity action in Florida. That paternity action would have to precede any action potentially filed by the mother in California. If he’s seeking any custody rights, the Florida court’s should find that the proper forum is California.
Child has no home state
The second limited exception to establishing Florida as the correct forum is when the child doesn’t have a “home state.” Section 61.503(7) (2012), Florida Statutes, defines "home state" as the state in which a child lived with a parent or a person acting as a parent for at least 6 consecutive months immediately before the commencement of a child custody proceeding. In the case of a child younger than 6 months of age, the term means the state in which the child lived from birth with any of the persons mentioned. A period of temporary absence of any of the mentioned persons is part of the period. Where Florida was never the home state of the minor child, Florida can have jurisdiction only if, under Fla. Stat. §61.514(1)(b) (2012), no other state is the home state of the child, or if another state is, it has declined to exercise jurisdiction because this state is the more appropriate forum.
An example of a child not having a home state is in the case of Hindle v. Fuith, 33 So. 3d 782 (Fla 5th DCA 2010). In Hindle a mother filed a paternity action against a putative father in Florida. Id. at 784. The putative father did not believe the court had subject matter jurisdiction because the child had not lived in Florida for six months before the filing of the action. Id. However, no other state had jurisdiction as the mother and child had lived in several states in the six months prior to their arrival in Florida. Id. at 785. As a result, because no court of any other state would have had jurisdiction under section 61.514, Florida Statutes (2003), the Florida trial court had jurisdiction to make an initial custody determination. Id.
For the putative father in our case to be able to pursue a paternity action seeking timesharing and/or parental responsibility here in Florida, the court would have to determine that (1) the child’s presence in California with the mother is not the child’s home state and the child doesn’t have a home state or (2) that California has declined to exercise jurisdiction because Florida is the more appropriate. Neither of these scenarios is likely since the child has resided in California with the mother his entire life and there would be reason to believe that Florida is more convenient for the parties.
CONCLUSION
About 99% of the time, the UCCJEA will establish subject matter jurisdiction and the proper forum is Florida if it is the child's home state on the date of the commencement of the custody proceeding or was the child's home state within six months before commencement of the proceeding and a parent or person acting as a parent continues to live in the state. The very narrow and limited exception are: (1) where a putative father agrees that the mother should be awarded permanent primary residency of a child, custody is not an issue, so the Uniform Child Custody Jurisdiction and Enforcement Act is unnecessary or (2) where Florida was never the home state of the minor child, Florida can have jurisdiction only if, under section 61.514(1)(b) (2012), Florida Statutes, no other state is the home state of the child, or if another state is, it has declined to exercise jurisdiction because this state is the more appropriate forum. As it relates to the facts in this case, unless the putative father does not want any timesharing or parental responsibility with the child, or the child’s home state of California has declined to exercise jurisdiction because Florida is a more appropriate form, the putative father CANNOT file in Florida.
By Kenny Leigh