Skip to main content

Motion to dismiss for lack of Jurisdiction

Orlando, FL |
Filed under: Family law

I recently moved from Florida to Washington and gave birth to a child last month in WA. I'm currently visiting family in FL and the baby's father had me served with a Petition to establish Paternity and for equal time sharing. I know that FL has jurisdiction over the Father and I in regards to paternity and child support, but doesn't WA have jurisdiction over child custody since it is the baby's home state? He wants 50% physical custody and shared parental responsibility, but that's impossible since we live in different states and the baby is only a month old. What will happen in the Florida courts? Can I file motion to dismiss for lack of jurisdiction over the baby and custody matters? Thank you.

The UCCJEA vests "exclusive [and] continuing jurisdiction" for child custody litigation in the courts of the child's "home state," which is defined as the state where the child has lived with a parent for six consecutive months prior to the commencement of the proceeding (or since birth for children younger than six months). Since the baby is under six months her home state is WA.

Attorney Answers 3

Posted

You've asked a very good question and a very complex question. Jurisdiction issues are unresolved by Florida's courts, and these issues are being hotly litigated. All I can tell you is to hire a lawyer, and yes, that lawyer should certainly file a motion to dismiss for lack of jurisdiction. I agree with you that's it's impossible to have 50/50 custody when you live an entire continent apart, but you may be able to have shared parental responsibility, which is the ability of the two of you to parent your child together, deciding together how your child is to be raised.

The contents of this answer should be considered friendly advice, not legal advice (I'm a pretty friendly guy), and the answer should not be construed to constitute an attorney-client relationship. If you'd like actual legal advice, call me for a free consultation at 813-635-0222. Also, if you liked this answer as much as my big ego thinks you did, be sure to click the thumbs-up button!

Mark as helpful

Posted

Your question is complex.Technically, your child does not have a home state. Home state is defined as the state that was the residence of the child before the petition was filed. Since your child is one month old, a Florida court may exercise jurisdiction if it determines Florida is a convenient forum. The fact that father lives in Florida and an action has already commenced, WA may decline jurisdiction. This issue is complex. Please consult with an attorney asap.

Mark as helpful

1 lawyer agrees

4 comments

Jason Brian Phillips

Jason Brian Phillips

Posted

Correction- home state is the state where the child lived six months before the petition was filed.

Asker

Posted

The UCCJEA vests "exclusive [and] continuing jurisdiction" for child custody litigation in the courts of the child's "home state," which is defined as the state where the child has lived with a parent for six consecutive months prior to the commencement of the proceeding (or since birth for children younger than six months)

Jason Brian Phillips

Jason Brian Phillips

Posted

You correctly cite exclusive and continuing jurisdiction. However, the issue in your case is INITIAL child custody jurisdiction. The "since birth" provision does not apply in initial child custody determinations in Florida.

Sandi Debra Milmed

Sandi Debra Milmed

Posted

I just finished reading an interesting article in the FL Bar Journal about this very issue...bottom line is, the FL courts (and the FL statutes) are unclear and undecided on this issue. Having been in many a jurisdictional battle, my experience has been that many of the judges who have to decide these issues don't understand the law either, and we end up with poor decisions.

Posted

While the UCCJEA may mean that the home state of the child is Washington, the child's father could make an argument that, because you both lived in Florida, the child was conceived in Florida and you just recently moved to Washington, permanent jurisidiction lies in Florida.

Rather than file a motion to dismiss for lack of jurisdiction, you might strongly consider filing your own custody motion in Washington first. Before you do anything, you need to visit with an attorney in your area in Washington who has a practice focus in family law, particularly child custody. This is too complicated an issue for you to handle on your own.

Also, a word of caution. Regardless of what happens in these initial stages, you will not subvert the rights of the child and father to parenting time forever. You need to start thinking now about how you will navigate the next 18 years.

Good luck.

Mark as helpful

3 lawyers agree

Family law topics

Top tips from attorneys

What others are asking

Can't find what you're looking for?

Post a free question on our public forum.

Ask a Question

- or -

Search for lawyers by reviews and ratings.

Find a Lawyer

Browse all legal topics