Baker v. Tunney

IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FIFTH DISTRICT
NOT FINAL UNTIL TIME EXPIRES TO
FILE MOTION FOR REHEARING AND
DISPOSITION THEREOF IF FILED
JAMES BAKER,
Appellant,
v. Case No. 5D15-4139
CARA CATHERINE TUNNEY,
Appellee.
________________________________/
Opinion filed October 21, 2016
Appeal from the Circuit Court
for Volusia County,
Kellie J. Miles, Judge.
Allison J. McCabe and Susanne D.
McCabe, of McCabe Law Firm, Port
Orange, for Appellant.
Bradley S. Sherman, Orange City, for
Appellee.
PER CURIAM.
James Baker (“Father”) appeals from the dismissal of his petition for determination
of paternity, parental responsibility, child support, and related relief. We reverse because
the trial court erroneously concluded that Florida was not the child’s home state and that
it lacked jurisdiction under the Uniform Child Custody Jurisdiction Enforcement Act
(“UCCJEA”).
The parties agree that Baker is the minor child’s biological father. The child was
born in Florida and lived here until the mother relocated to New York when the child was
less than two weeks old. Both parties filed child custody petitions on the same day: Father
filed a petition in Florida, and Cara Tunney (“Mother”) filed in New York. Soon afterwards,
Father filed a motion for an emergency pick-up order/order to show cause. The trial court
issued an order directing Mother to explain “why [she] should not be adjudged in
Contempt of this Court for removing the minor child from Florida.”
In her response, Mother acknowledged that Baker was the child’s biological father,
that she previously resided in Florida with Father and the child, and that she took the child
and relocated to New York. However, she denied that taking the child to New York was
unlawful and asserted that it was necessary under the circumstances and in the best
interest of the child. Mother alleged that on two occasions after the child’s birth, Father
was intoxicated, angry, and threatening. Her mother, who was visiting from New York to
help with the newborn, allegedly witnessed the incidents. Mother “decided that we had
little choice but to return home to New York where there would be a stable, supportive
and protective atmosphere in which to provide for the new-born child.”
Mother had also filed an amended petition for temporary custody and placement
of the child in Yates County, New York, to which she attached a supporting affidavit
reciting essentially the same factual circumstances as in her response to the Florida
petition and motion. The New York court issued an order to show cause that directed
Father to explain why an order granting temporary custody should not be entered in favor
of Mother. The order prohibited the child’s removal from New York without court approval
and granted Mother temporary placement of the child.
The Florida court held two jurisdictional hearings that telephonically included the
New York court. No testimony or evidence was presented at the hearings. Father argued
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“claims a right to a child-custody determination under the laws of this state.”
§ 61.503(13)(a)-(b), Fla. Stat. (2015) (emphasis added).
Moreover, many courts have recognized that, under the UCCJEA and its prior
versions, a putative father’s rights may be akin to those of a father of a child born to a
marriage. See, e.g., Slay v. Calhoun, 772 S.E.2d 425, 430 (Ga. Ct. App. 2015)
(concluding that Georgia had home state jurisdiction over minor child who lived in Georgia
with putative father because putative father was person acting as child’s parent); Matter
of Paternity of R.L.W., 643 N.E.2d 367, 369 (Ind. Ct. App. 1994) (rejecting argument that
father was not “parent” for consideration under prior version of UCCJEA because he was
merely the putative father, noting that mother was attempting to use the statute “as a
shield for her ‘seize and run’ strategy”); In re Estate of Patterson, 652 S.W.2d 252, 256
(Mo. Ct. App. 1983) (holding unwed father’s rights under UCCJA “should not be
foreclosed solely because he was not married to their mother”).
Here, the parties agree that Father and Mother cohabitated during the pregnancy.
They also signed a lease together before the child was born. Father was present for the
child’s birth, and both Father and Mother are listed on the child’s birth certificate. Father
also filed a claim with Florida’s putative father registry, and Mother acknowledges that he
is the biological father of the child. Thus, Father qualifies as a “parent” or “person acting
as a parent” under the statute.
Florida was the child’s home state at the time of the filing of the competing petitions
because from birth to relocation, the child lived in Florida with both Father and Mother.
The child was less than six months old, and the child’s home state is where the child lived
from birth with a parent or person acting as a parent. See § 61.503(7), Fla. Stat. (2015);
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[T]he 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.
§ 61.503(7), Fla. Stat. (2015) (emphasis added).
The state with home state jurisdiction over the child has priority under the
UCCJEA. Hindle, 33 So. 3d at 784 (citing Arjona v. Torres, 941 So. 2d 451, 455 (Fla. 3d
DCA 2006)). Jurisdiction extends to making 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 . . . ; or
(d) No court of any other state would have jurisdiction under
the criteria specified in paragraph (a), paragraph (b), or
paragraph (c).
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§ 61.514(1)(a)-(d), Fla. Stat. (2015).
As a preliminary matter, Mother argues that Father is not a “parent” under the
UCCJEA because his paternity was never legally established, and he presented no
evidence that he was anything more than the biological father of the child. She contends
that to qualify as a “parent” in Florida, the father must be adjudicated the biological parent
pursuant to section 742.10, Florida Statutes (2015), or the parties must have filed a
paternity acknowledgement agreement pursuant to section 382.013(2)(c), Florida
Statutes (2015). Mother also asserts that the statute defining natural guardians applies to
this case, which provides, in relevant part, that:
(1) The parents jointly are the natural guardians of their own
children and of their adopted children, during minority,
unless the parents’ parental rights have been terminated
pursuant to chapter 39. . . . The mother of a child born out
of wedlock is the natural guardian of the child and is
entitled to primary residential care and custody of the child
unless the court enters an order stating otherwise.
§ 744.301, Fla. Stat. (2015) (emphasis added).
Father contends that the circuit court erred in ruling that Florida was never the
child’s home state solely because the child was in Florida for only eleven days and
paternity was never established via court order. He argues that under the UCCJEA, the
fact that the child was born out of wedlock has no bearing on the child’s home state, and
the plain language of the statute indicates that Florida is the child’s home state. We agree.
Applying section 744.301 to proceedings under the UCCJEA would exclude both
putative fathers and children born out of wedlock from the jurisdictional protections
provided in the statute. While the UCCJEA does not specifically define “parent,” the
definition of “person acting as a parent” includes a person other than a “parent” who
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“claims a right to a child-custody determination under the laws of this state.”
§ 61.503(13)(a)-(b), Fla. Stat. (2015) (emphasis added).
Moreover, many courts have recognized that, under the UCCJEA and its prior
versions, a putative father’s rights may be akin to those of a father of a child born to a
marriage. See, e.g., Slay v. Calhoun, 772 S.E.2d 425, 430 (Ga. Ct. App. 2015)
(concluding that Georgia had home state jurisdiction over minor child who lived in Georgia
with putative father because putative father was person acting as child’s parent); Matter
of Paternity of R.L.W., 643 N.E.2d 367, 369 (Ind. Ct. App. 1994) (rejecting argument that
father was not “parent” for consideration under prior version of UCCJEA because he was
merely the putative father, noting that mother was attempting to use the statute “as a
shield for her ‘seize and run’ strategy”); In re Estate of Patterson, 652 S.W.2d 252, 256
(Mo. Ct. App. 1983) (holding unwed father’s rights under UCCJA “should not be
foreclosed solely because he was not married to their mother”).
Here, the parties agree that Father and Mother cohabitated during the pregnancy.
They also signed a lease together before the child was born. Father was present for the
child’s birth, and both Father and Mother are listed on the child’s birth certificate. Father
also filed a claim with Florida’s putative father registry, and Mother acknowledges that he
is the biological father of the child. Thus, Father qualifies as a “parent” or “person acting
as a parent” under the statute.
Florida was the child’s home state at the time of the filing of the competing petitions
because from birth to relocation, the child lived in Florida with both Father and Mother.
The child was less than six months old, and the child’s home state is where the child lived
from birth with a parent or person acting as a parent. See § 61.503(7), Fla. Stat. (2015);
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Fleckles v. Diamond, 35 N.E.3d 176, 189 (Ill. App. Ct. 2015) (noting that the “UCCJEA
gives priority to the jurisdiction of the child’s ‘home state,’ which for a child less than six
months old is defined as the birth state” (citation omitted)). In its order, the circuit court
dismissed the petition solely based on its finding that Florida never had home state
jurisdiction over the child. That was error.
This conclusion does not mean that New York improperly exercised jurisdiction.
The New York court based its decision on the emergency jurisdiction provisions of the
UCCJEA. See N.Y. Dom. Rel. Law § 76-c (McKinney 2015). The statute provides that
New York could properly exercise temporary jurisdiction “if the child is present in the state
. . . [and] it is necessary in an emergency to protect the child, a sibling or parent of the
child.” Id. The Florida and New York courts in this case consulted and agreed to allow
New York to exercise temporary jurisdiction based upon Mother’s allegations of domestic
violence. Yet, while New York arguably could have exercised temporary emergency
jurisdiction, it did not become the child’s home state simply because Mother filed a child
custody petition in New York. Father filed a custody petition in Florida, the child’s home
state, which precluded New York from exercising permanent jurisdiction in this case. See
§ 61.517, Fla. Stat. (2015); N.Y. Dom. Rel. Law 76-c (McKinney 2015). Absent Florida
expressly relinquishing its jurisdiction to New York, both the dismissal under review and
New York’s assumption of home state jurisdiction were improper.
We reverse and remand to the circuit court to consider Father’s child custody
pleadings on the merits. Unless Florida relinquishes its jurisdiction to New York, Florida
remains the child’s home state. See §§ 61.514, 61.520, Fla. Stat. (2015). Accordingly,
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Florida retains exclusive jurisdiction to enter permanent custody decrees in this case. 2
See Steckler v. Steckler, 921 So. 2d 740, 744-45 (Fla. 5th DCA 2006) (citing Yurgel v.
Yurgel, 572 So. 2d 1327, 1332, (Fla. 1990)).
REVERSED and REMANDED.
TORPY, COHEN and WALLIS, JJ., concur.
2 Upon exercising home state jurisdiction over the child on remand, the trial court
must also comply with the requirements of Florida’s emergency jurisdiction statute.
Because New York could properly exercise temporary emergency jurisdiction in this case,
further communication between the courts will be necessary “to resolve the emergency,
protect the safety of the parties and the child, and determine a period for the duration of
the temporary order.” See § 61.5174, Fla. Stat. (2015).
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