JOAN C. PEREZ, APPELLANT,
v.
KENNETH I. PEREZ, APPELLEE
AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.
Joan Perez challenges a trial court's denial of her motion to dismiss Kenneth Perez's request to modify a child custody order. The Florida appellate court held that the trial court lacked jurisdiction under the Uniform Child Custody Jurisdiction Act because the parties' daughter had resided in Pennsylvania for four years, making Florida no longer the child's "home state," and no statutory exception for jurisdiction was satisfied.
The court held that the trial court erred in denying Joan's motion to dismiss and improperly assumed jurisdiction. Since Florida was not the child's "home state" under the Uniform Child Custody Jurisdiction Act, and the motion did not satisfy any of the statutory exceptions permitting jurisdiction, the court lacked authority to hear the modification request.
[1] A Florida court may not exercise jurisdiction over a child custody modification proceeding if the child has not resided in Florida for at least six consecutive months imm…
[2] Exceptional circumstances allowing a Florida court to exercise jurisdiction over a child custody modification proceeding when the child is not a Florida resident include…
Previewing 2 of 5 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“the "home state" of the child should be the jurisdiction to hear and determine custody matters”
Establishes the foundational principle under the Uniform Child Custody Jurisdiction Act governing which state has primary jurisdiction over custody disputes.
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceThe parties' marriage was dissolved in 1976, with Joan retaining custody of the parties' two children. In 1977, the son's custody was transferred to K…
The full statement of facts, procedural history, and disposition for this case are member content.
Join FLexlaw to unlock all legal intelligence© FLexlaw, Inc. — AI-generated enrichments are proprietary. All rights reserved.
Explore caselaw by topic → Browse Home State Jurisdiction cases and more on FLexlaw
WENTWORTH, Judge.
Appellant seeks review of the denial of a motion to dismiss appellee’s request for modification of a child custody order. Because we find that the court should not have assumed jurisdiction pursuant to appellee’s motion for modification, we grant review by certiorari1 and quash the order appealed. Upon the dissolution of the parties’ marriage in 1976 appellant, by stipulation, retained custody of the parties’ eight year old son and four month old daughter. In 1977 custody of the son was transferred to appellee by a consent order of modification. In 1983 appellee filed a motion for modification seeking custody of the parties’ daughter, alleging that he had been denied visitation and that it is in the best interests and welfare of the child that he be made the primary, residential parent. Appellant moved to dismiss appellee’s motion for modification, arguing that appellee had failed to plead necessary information regarding the child’s place of residence. Appellant also filed an affidavit asserting that for the past four years the child has resided with her in Pennsylvania.
As adopted in Florida the Uniform Child Custody Jurisdiction Act governs the jurisdictional aspects of interstate custody disputes and establishes generally that the “home state” of the child should be the jurisdiction to hear and determine custody matters. See Hegler v. Hegler, 383 So. 2d 1134 (Fla. 5th DCA 1980); § 61.1308(l)(a), Florida Statutes. In the present case the parties’ factual allegations indicate that for the past four years Florida has not been the child’s “home .state,” as defined by § 61.1306(5), Florida Statutes.2 The Florida court’s exercise of jurisdiction in the present case is therefore dependent upon an allegation of exceptional circumstances as delineated in § 61.1308, Florida Statutes. While the court suggested that appellee’s motion might be read as alleging “emotional abuse,” this circumstance alone would not warrant the Florida court’s exercise of jurisdiction; rather, it must also appear that the child is either physically present in the state, see § 61.1308(l)(c), or that there is a “significant connection” with Florida and the availability of substantial evidence within the state, see § 61.1308(l)(b), or that either no other state has jurisdiction or another state has deferred jurisdiction to the Florida court. See § 61.1308(l)(d); see generally, Hegler, supra. Since none of these prerequisites were satisfied by the allegations of appellee’s motion, and were negated by appellant’s uncontroverted affidavit, the court erred in denying appellant’s motion to dismiss and assuming jurisdiction pursuant to appellee’s motion for modification.3
Certiorari is granted, the order under review is quashed, and the cause remanded.
SHIVERS and NIMMONS, JJ., concur. . While review is sought by appeal the order in question is non-final and is not encompassed within the limited exceptions in Fla.R.App.P. 9.130 for which interlocutory review by appeal is authorized. However, since the issue presented is one which relates to the court's jurisdiction the order is subject to immediate review by certiorari. See Sedden v. Harpster, 438 So. 2d 165 (Fla. 5th DCA 1983); also see Gadsden County Times v. Horne, 382 So. 2d 347 (Fla. 1st DCA 1980). Pursuant to Fla.R.App.P. 9.040(c) we therefore grant review by certiorari.
. Section 61.1306(5), Florida Statutes, defines "home state” as:
... the state in which the child, immediately preceding the time involved, lived with his parents, a parent, or a person acting as a parent for at least six consecutive months....
. In the order under review the court also noted that “there was, and is, pending, a Motion to Change Custody, upon which adjudication was deferred in 1979.” The record before us contains no other reference to such a motion, and neither the court nor the parties treated appellant’s present motion for modification as an attempted amendment of the prior motion. The asserted pendency of such prior motion, the propriety of which we do not address, thus does not impact appellant’s present motion or the order now under review.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
-
Quinones v. Quinones, 569 So. 2d 884 (Fla. 3d DCA 1990)…ody Jurisdiction Act were met. See id. That being so, the trial court did not acquire subject matter jurisdiction over the issue of child custody for purposes of the Act, Howard v. Howard, 509 So. 2d 1260, 1261-62 (Fla. 2d DCA 1987); Perez v. Perez, 462 So. 2d 546, 547 (Fla. 1st DCA 1985); see also Mondy v. Mondy, 428 So. 2d 235, 239 (Fla.1983). Without jurisdiction over the subject matter, the judgment was void. Kutner v. Kutner, 159 Fla. 870, 33 So. 2d 42 (1947); see also Falkner v. Amerifirst Fed. Sav. & L…
-
Cook v. Wells, 493 So. 2d 72 (Fla. 1st DCA 1986)…ar petitions to modify custody orders where the requirements of the UCCJA are not met, even where the courts in question were those which originally determined'custody. Hegler v. Hegler, 383 So. 2d 1134 (Fla. 5th DCA 1980); see also, Perez v. Perez, 462 So. 2d 546 (Fla. 1st DCA 1985); Brown v. Tan, 395 So. 1249 (Fla. 3d DCA 1981). While the [UCCJA] has not abrogated the preference for continuing jurisdiction in the state which entered the original decree, ... the significant connection requirement of section…
-
Carlson v. Karon Ritch-Carlson, 741 So. 2d 1264 (Fla. 3d DCA 1999)…91 (Fla. 2d DCA 1989); Genoe v. Genoe, 515 So. 2d 237 (Fla. 4th DCA 1987), review denied, 513 So. 2d 1061 (Fla.1987); Prickett v. Priekett, 498 So. 2d 1060 (Fla. 5th DCA 1986); Ruse v. Ruse, 478 [*1265] So. 2d 102 (Fla. 2d DCA 1985); Perez v. Perez, 462 So. 2d 546 (Fla. 1st DCA 1985).…
Authorities Cited
- Hegler v. Hegler, 383 So. 2d 1134 (Fla. 5th DCA 1980)
- Gadsden Cnty. Times Inc. v. Mallory E. Horne, 382 So. 2d 347 (Fla. 1st DCA 1980)
- Seddon v. Harpster, 438 So. 2d 165 (Fla. 5th DCA 1983)