The following unfolded in and around the sleepy little island town of Palm Beach, Florida.
Dr. Smith is a native Floridian. After attending college and medical school at Florida State University, he returned to his home town of West Palm Beach to open a medical practice focusing on pediatric medicine. He always wanted to be a father.
Sally was born in California, raised in Texas, and always wanted to be a mother and a doctor’s wife. After attending college in New York, she began a career as a drug sales representative in the Midwest. Ten years into her career, Sally decided to follow through on her dream of living in a tropical climate and assumed a new sales territory covering Palm Beach County.
Sally found and settled into a condo and it wasn’t long before she met Dr. Smith on a sales call. What quickly developed was a fiercely contested, law school exam-like jurisdictional custody dispute.
Sally became pregnant within the first two months of dating Dr. Smith. Dr. Smith believed he was the father. Soon after, the relationship began to disintegrate. The couple attempted to work things out, but were unsuccessful. Eventually, Sally told Dr. Smith she planned to break her condo lease, move back to Texas, and stay with her family for the remainder of her pregnancy.
On the eve of Sally’s move to Texas, Dr. Smith retained a local family law attorney. The attorney immediately filed a petition to determine paternity and related relief, and Sally was served the next morning at her Palm Beach condo as she was leaving for the airport.
Upon arriving in Texas, Sally decided the best course of action was to slow down the case by alleging the Florida court lacked subject matter jurisdiction under the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA). A legal battle ensued, during which Sally gave birth in the State of Texas to a healthy baby girl named Emily.
Sally’s attorney informed her that she could not challenge personal jurisdiction over child support issues since she had been served in Florida. Even if she had been served in Texas, the circuit court in Palm Beach County would have long-arm jurisdiction over her as she engage[ed] in the act of sexual intercourse within [the] state with respect to which a child may have been conceived.
However, the question of whether the court had subject matter jurisdiction over Dr. Smith’s lawsuit was not as clear. Sally’s attorney’s research revealed that parents of a child born out of wedlock in Florida can seek an order through the state’s circuit courts establishing child support and timesharing, but the Florida law was silent as to whether Dr. Smith could file his paternity lawsuit while Baby Emily was in utero unless there could be established significant connections between Emily and the State of Florida.
Sally’s attorney argued that while a Florida Statute allows an unmarried, pregnant woman to bring a paternity action, the same statute does not allow a putative father to bring the same action before a child is born because a fetus is not a child for purposes of the section. In other words, if the Florida legislature intended to allow a putative father to bring a paternity action while a mother was still pregnant, there would be no need to fashion the statute in a manner that specifically gives a woman the ability to bring the action before or after childbirth, while stating that a male may (only) bring the action if he has reason to believe that he is the father of a child and the child has significant connection to the State.
Dr. Smith’s attorney vehemently protested Sally’s argument that Dr. Smith had no right to bring a paternity action while Baby Emily was in utero when the biological mother has the right to file a lawsuit as soon as she is pregnant. The judge, after hearing the arguments raised by both attorneys (and being hesitant to address any constitutional questions), declared that it is elementary to discuss whether there is jurisdiction under the UCCJEA. The next step was to determine whether the Florida court lacked jurisdiction to make an initial child custody determination under the Significant Connection test.
The Purpose of the UCCJEA
The primary purpose of the UCCJEA includes: 1) avoiding jurisdiction competition and conflict with courts of other states in matters of child custody; 2) promoting cooperation with the courts of other states to the end that a custody decree is rendered in the state that can best decide the case in the interest of the child; 3) deterring abductions; and 4) reducing the harmful effects of jurisdictional conflicts.
Sally’s attorney advised the court that the UCCJEA section pertaining to initial child custody jurisdiction stated that a Florida court can only make an initial child custody determination in four specific circumstances, two of which are applicable to Dr. Smith and Sally’s case. The court would be required to analyze whether Florida has home state jurisdiction.
Home State Jurisdiction of an Unborn Child
Sally’s attorney argued that Florida was not Baby Emily’s home state for purposes of the UCCJEA because she was in utero when the lawsuit commenced. The attorney remarked that since Baby Emily was unborn at the time the lawsuit commenced, the six-month residency requirement for home state jurisdiction had not been satisfied. The attorney argued that Baby Emily’s home state was Texas because she had lived in Texas since birth. The issue, thus, challenged the constitutional question of when does life begin addressed by the U.S. Supreme Court in Roe v. Wade, 410 U.S. 113 (1973) and Planned Parenthood v. Casey, 505 U.S. 833 (1992).
Dr. Smith’s attorney pointed out that if the court determined home state jurisdiction is created solely by childbirth, the court would be precluded from analyzing any connection to the State of Florida. Moreover, Dr. Smith argued that if Texas lacked personal jurisdiction over Dr. Smith to decide issues pertaining to child support, a determination that Baby Emily’s home state was Texas for purposes of the UCCJEA would create the absurd result where issues pertaining to timesharing and parental responsibility would be determined in Texas, while Florida would continue to have jurisdiction to determine issues pertaining to child support.
Finally, Dr. Smith’s attorney asserted that determining Texas as Baby Emily’s home state based solely on the fact that she was born in Texas contradicts the purpose of Florida’s statute pertaining to parental relocation with a child. This statute requires that specific actions be taken before relocating with a child to another state after a child custody proceeding has commenced. Allowing a mother to avoid the strict requirements relating to move away by choosing to give birth elsewhere is per se unreasonable.
Dr. Smith’s attorney also argued there was substantial evidence available in Florida concerning Baby Emily’s care, protection, training, and personal relationships. The attorney argued that since Dr. Smith was, by profession, trained in caring for infant children, he would be able to care for his own infant daughter. The evidence showed that Dr. Smith’s family, including his parents, all lived in Palm Beach County and were eagerly awaiting the opportunity to welcome Baby Emily to the family. Sally’s attorney countered the court was precluded from even delving into a significant connections test analysis because Texas was the home state of Baby Emily because she had been born and lived there since birth.
WHAT CAN DR. SMITH DO?
Under the current construction of the UCCJEA, there is little Dr. Smith can do to confer Home State (Subject Matter Jurisdiction) upon the State of Florida. Why? The reason, according to the UCCJEA, is that a fetus in utero is not a child for purposes of Home State Subject Matter Jurisdiction. This fact is in direct in contradiction to the U.S. Supreme Court’s decision in cases like Roe v. Wade, wherein the Court decided that fetuses become children after the third trimester of pregnancy, and thereafter cannot be aborted.
Conferring Home State subject matter jurisdiction upon a state to which a woman moves during her pregnancy also promotes what is called Forum Shopping. Prospective mothers realize a court in the state to which they relocate is far more likely to award her primary physical custody and, thus, father’s time with his child will be limited to reasonable visitation, meaning, especially in a situation of great distance, summers and holidays.
To prevent a pregnant woman from relocating during her pregnancy violates the U.S. Constitution’s provision regarding restrictions on travel. However, by conferring Home State jurisdiction upon the Move Away State is to promote forum shopping, and as well prevents fathers from having significant time with their child. Further, while mother’s state makes decisions regarding custody and visitation, likely father’s state makes all decisions regarding support.
This situation is truly one of great contradiction and controversy; there are conflicting state decisions regarding Subject Matter Jurisdiction over children, some deciding that if there are significant connections between the unborn child and the state, Subject Matter Jurisdiction may reside within that state. Other states agree with the UCCJEA in that the Home State of any child is that state where it is born.
This article was originally written by West Palm Beach Divorce Lawyer Christopher R. Bruce.
To review the original article in it’s entirety visit the Florida Bar Journal.