PENELOPE DAVIDIAN, APPELLANT,
v.
LEONARD KESSLER, APPELLEE
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A Florida mother sought to transfer custody litigation to South Carolina where she and the children now reside, arguing that forum was more convenient. The trial court denied the transfer, finding the mother was engaging in impermissible forum shopping to avoid Florida's shared parental responsibility policy. The appellate court affirmed, holding that the trial court did not abuse its discretion in considering the mother's motivations and the inconvenient forum factors under the Uniform Child Custody Jurisdiction Act.
The trial court did not abuse its discretion in denying the motion to transfer. The mother's desire to litigate in South Carolina because it lacks a shared parental responsibility statute constitutes impermissible forum shopping that violates Florida's public policy and the purposes of the UCCJA, and the inconvenient forum factors did not support transfer where witnesses were distributed between both states.
[1] A motion to transfer litigation under the inconvenient forum provision of the Uniform Child Custody Jurisdiction Act may be denied when the moving party's stated reason f…
[2] A trial court may consider a party's repeated refusal to comply with existing court orders regarding visitation when determining whether to grant a motion to transfer cus…
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Join FLexlaw to unlock all legal intelligence“It is the public policy of this state to assure that each minor child has frequent and continuing contact with both parents after the parents separate or the marriage of the parties is dissolved and to encourage parents to share the rights and responsibilities of childrearing.”
Establishes Florida's foundational public policy favoring shared parental responsibility and frequent contact with both parents.
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Join FLexlaw to unlock all legal intelligenceA marriage was dissolved in Florida in 1994 with a judgment providing for shared parental responsibility. The father remained in Florida while the mot…
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KLEIN, Judge.
Appellant mother appeals the denial of her motion to transfer the litigation involving the custody of her children from Florida to South Carolina where she and her children now reside. We affirm.
The parties’ marriage was dissolved in a Florida judgment providing for shared parental responsibility in 1994. Within the same year the father moved for modification in Broward County, Florida, alleging that the mother, who had since moved with the children to South Carolina, was denying him visitation. The mother moved for contempt in Florida alleging failure to pay child support, but prior to a final hearing, the mother filed a complaint in South Carolina seeking-modification of the Florida judgment.
The Florida judge then spoke with the South Carolina judge, who advised that he had accepted jurisdiction over the case. Because the children were then living in South Carolina, the Florida judge stayed the Florida proceedings pending a determination in South Carolina. We reversed that stay, Kessler v. Davidian, 673 So. 2d 957 (Fla. 4th DCA 1996), without prejudice to the trial court considering transfer under the inconvenient forum provision of the Uniform Child Custody Jurisdiction Act, section 61.1316(1), Florida Statutes (1995).
After remand, at an evidentiary hearing on the mother’s motion for transfer, she testified that the reason she wanted to litigate in South Carolina was because South Carolina “is not a shared parental responsibility” state. That testimony, along with the fact that the wife has repeatedly refused to comply with the final judgment, as well as other Florida court orders regarding the father’s visitation with the children, were two of the reasons the court denied the motion to transfer. In section 61.13(2)(b)l-2, it is provided:
It is the public policy of this state to assure that each minor child has frequent and continuing contact with both parents after the parents separate or the marriage of the parties is dissolved and to encourage parents to share the rights and responsibilities of childrearing. After considering all relevant facts, the father of the child shall be given the same consideration as the mother in determining the primary residence of a child irrespective of the age or sex of the child.
The court shall order that the parental responsibility for a minor child be shared by both parents unless the court finds that shared parental responsibility would be detrimental to the child.
The trial court found that the wife was “blatantly forum shopping” because South Carolina does not have shared parental responsibility. We agree. Her maneuver not only violates Florida’s public policy in favor of shared parental responsibility, but also two of the purposes of the UCCJA, (1) avoiding relitigation of one state’s custody decision in other states and (2) enforcement of one state’s custody decree in other states. § 61.1304(6) — (7), Fla.Stat. (1995). We have not hesitated to reverse a Florida trial judge for violating those policies by refusing to recognize another state’s decision. Matter of Adoption of KC.P., 432 So. 2d 620 (Fla. 4th DCA 1983). Section 61.1316 of UCCJA provides in part in subsection (3):
In determining if it is an inconvenient forum, the court shall consider if it is in the interest of the child that another state assume jurisdiction. For this purpose it may take into account the following factors, among others:
(a) If another state is or recently was the child’s home state;
(b) If another state has a closer connection with the child and his or her family or with the child and one or more of the contestants;
(c) If substantial evidence concerning the child’s present or future care, protection, training, and personal relationships is more readily available in another state.
Here, the court found that the father had witnesses residing in Florida and the mother had witnesses residing in or near South Carolina, and that no matter which forum was selected, it would be convenient for one party and inconvenient for the other. Vero v. Vero, 659 So. 2d 1348 (Fla. 5th DCA 1995)'.
We conclude that the trial court did not abuse its discretion in denying the motion to transfer and affirm.
DELL and WARNER, JJ., concur.
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Cited By
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Thomas v. Thomas, 724 So. 2d 1246 (Fla. 4th DCA 1999)…estion merits a non-final appeal).” 417 So. 2d at 1051. We followed Bedingfield in O’Connor v. O’Connor, 447 So. 2d 1034 (Fla. 4th DCA 1984). More recently, however, without addressing either of these two earlier precedents, in Davidian v. Kessler, 685 So. 2d 13 (Fla. 4th DCA 1996), we exercised nonfinal appeal jurisdiction and reviewed a functionally identical order, one denying a motion to transfer a child custody case to South Carolina. It is obvious that our precedents are in conflict on this issue. Up…
Authorities Cited
- Vero v. Vero, 659 So. 2d 1348 (Fla. 5th DCA 1995)
- In re the Adoption OF K.C.P., 432 So. 2d 620 (Fla. 4th DCA 1983)
- Kessler v. Penelope Davidian, 673 So. 2d 957 (Fla. 4th DCA 1996)