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My husband filed for divorce in his home state, but I just moved to Florida with our son.

Clearwater, FL |

I am from Florida and have a ton of family here. I just got back here on June 2nd. I got a notarized note from my husband giving me permission to move with our son. Yesterday I got served with a petition for divorce from Colorado. I am starting a new life here with my son, but now he is trying to change his mind so he can ultimately take our son from me. We both dont have a lot of money, but now he is living with his mom so he can save all of the money he does make. Is there a way to have jurisdiction changed to Florida? I have already enrolled in school and am looking for a job. Can the courts make us move back to Colorado? The petition says neither of us can take the baby out of state after being served, but I was already here. Also the petition has incorrect information on it.

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Attorney answers 5

Posted

The good news is that you moved before you served and that you have a note from your husband giving you some autority. The jurisdiction is an issue, but if you sit down with a local FL attny and discuss the issues you may be able to use your local rules and brainstorm some ideas, be creative and take care.

Legal disclaimer: The response given is not intended to create, nor does it create an ongoing duty to respond to questions. The response does not form an attorney-client relationship, nor is it intended to be anything other than the educated opinion of the author. It should not be relied upon as legal advice. The response given is based upon the limited facts provided by the person asking the question. To the extent additional or different facts exist, the response might possibly change. Attorney is licensed to practice law only in the State of Massachusetts. Responses are based solely on Massachusetts law unless stated otherwise.

Posted

I agree with the comments of the previous attorney insofar as it will be helpful for you to have that note, etc. However, it would appear that Colorado has jurisdiction over this issue since you and your son have not lived here for at least 6 months. I don't know what Colorado law says and you'll need to consult with a CO attorney for that information.

Please be advised that any answers or information disseminated above do not constitute legal advice and that the attorney responsible for this posting is merely attempting to participate in a Q & A session intended to be helpful but certainly not intended to be legal advice. It is important that you understand that no attorney-client relationship has been formed and that the attorney has no obligation to follow up with you with your legal issue unless you separately contact said attorney and arrange for him to legally represent you.

Posted

I practice in Pinellas County, where it looks like you live now. You are caught in what we call here a "Concurrent Jurisdiction" problem. Under the UCCJEA, BOTH Colorado and Florida have jurisdiction of the minor child. Colorado, because you and your child have not lived here for the required 6 months for a Florida Court to take Jurisdiction, but Florida also has 'emergency' Jurisdiction because you are here with the child legally and moved before your Husband filed for divorce, with his consent.

For the purpose of the Divorce, you will have to Answer the Colorado Petition, as you have not lived in Florida for 6 months, so Florida Courts cannot become involved in your Divorce.

I have handled a few of these over the years and can tell you that in one case, the child had to be returned to the original state, and in another, the Judge invoked Jurisdiction and the child stayed here.

Every case is fact specific, and you really need an attorney. These are difficult issues of State and Federal law and the Judge will want to see what has been filed in the other state.

Many Family lawyers give free consults, but few will do a pro bono case that is so complicated and can take a long time to complete.

I wish you the best of luck, and I am sorry that there is no clear answer for you.

This information is a general answer and is not specific to any particular case. Carin Manders Constantine, Esq. 727-456-0032/ 727-488-8272 familylawyer411.com/about-carin https://www.facebook.com/pages/The-Law-Offices-of-Carin-M-Constantine/125967577416313 http://www.linkedin.com/pub/carin-constantine/b/861/445

Posted

If you have it in writing that he is allowing you to move then you should be ok. You should still file a petition for custody in FL.

Posted

Jurisdiction in custody cases where one party moves from one state to another is always a difficult road, but based on the information you have supplied, it looks to me like Colorado has jurisdiction and you'll have to fight him there. Whether the child will be placed with him in Colorado will be a question for the Colorado court. I will disagree with the lawyer who said Florida and Colorado have concurrent jurisdiction based on the emergency provision of the uccjea unless the father was abusive to you or the child and you had to leave Colorado to escape abuse. That circumstance would invoke the possibility of emergency jurisdiction, but it is not what you have described. Bottom line is I think you're going to need a Colorado lawyer.

Carin Manders Constantine

Carin Manders Constantine

Posted

I respectfully disagree.

Carin Manders Constantine

Carin Manders Constantine

Posted

To Answer the question more thoroughly, I will refer to a Florida Bar Journal Article that staes: Since both the UCCJEA and UIFSA define the subject-matter jurisdiction of signatory states’ courts to hear custody and support cases, respectively, both uniform acts affect the potential application of the principle of priority. The UCCJEA, in particular, is based around the concept of the “home state” of the child and family. The UCCJEA defines a child’s “home state” thusly: (7) “Home state” means the state in which a child lived with a parent or a person acting as a parent for at least six consecutive months immediately before the commencement of a child custody proceeding. In the case of a child younger than six 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.15 Initial child-custody jurisdiction under the UCCJEA is tied to a child’s home state, with some exceptions (which, in practice, do not occur frequently): (1) Except as otherwise provided in s. 61.517, a court of this state has jurisdiction to make an initial child custody determination only if: (a) This state is the home state of the child on the date of the commencement of the proceeding, or was the home state of the child within 6 months before the commencement of the proceeding and the child is absent from this state but a parent or person acting as a parent continues to live in this state; (b) A court of another state does not have jurisdiction under paragraph (a), or a court of the home state of the child has declined to exercise jurisdiction on the grounds that this state is the more appropriate forum under s. 61.520 or s. 61.521, and: 1. The child and the child’s parents, or the child and at least one parent or a person acting as a parent, have a significant connection with this state other than mere physical presence; and 2. Substantial evidence is available in this state concerning the child’s care, protection, training, and personal relationships; (c) All courts having jurisdiction under paragraph (a) or paragraph (b) have declined to exercise jurisdiction on the grounds that a court of this state is the more appropriate forum to determine the custody of the child under s. 61.520 or s. 61.521; or (d) No court of any other state would have jurisdiction under the criteria specified in paragraph (a), paragraph (b), or paragraph (c).16 While Colorado clearly has jurisdiction, the Colorado Court COULD DECLINE TO EXERCISE JURISDICTION BECAUSE NO CASE WAS FILED AND YOU HAD PERMISSION TO MOVE HERE. If the court of the home state of the child has declined to exercise jurisdiction on the grounds that this state is the more appropriate forum under s. 61.520 or s. 61.521, and: 1. The child and the child’s parents, or the child and at least one parent or a person acting as a parent, have a significant connection with this state other than mere physical presence; and 2. Substantial evidence is available in this state concerning the child’s care, protection, training, and personal relationships; So, I believe you have a fair shot at having the custody case heard in Florida, but since you see that lawyers disagree, please seek the advice of a trusted attorney who understand the UCCJEA and has done inter-state work before. Good Luck. You can read the article at http://www.floridabar.org/DIVCOM/JN/JNJournal01.nsf/Author/27038B01C2CEDDAC8525767E006E7DF8

Joseph Julius Registrato

Joseph Julius Registrato

Posted

Before quoting bar journal articles, i suggest you read the statute defining when a state has "temporary emergency jurisdiction." That would be Florida Statute 61.517. Then you're telling this person Colorado could decline jurisdiction? Seems to me that a divorce and therefore a custody action has already been filed in Colorado, while nothing is filed in Florida. Excuse me, but I do not believe Florida will exercise jurisdiction under these circumstances, and no amount of lawyering will change that.

Carin Manders Constantine

Carin Manders Constantine

Posted

I am sure you are correct sir. I hope you can assist this woman in need. Thank you for the paternal tone and obvious attempt to take away any hope she has of seeking help civilly here in Florida.

Joseph Julius Registrato

Joseph Julius Registrato

Posted

The point it, we (us Florida lawyers), can't help her and we ought to be big enough and honest enough and smart enough to tell her that. Or, you could ask yourself if is it better to hold out hope and maybe even accept a fee from a person who has virtually no chance of obtaining relief due to a jurisdictional matter, which at least theoretically, is strictly a legal question and can not even be stipulated to by the parties, although I will give you that jurisdiction under the UCCJEA is absolutely not simple or easy to understand. Sorry about the "tone," though, i didn't mean to offend only to state a position.

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