BURGOS

v.

SEQUEIRA, VARGAS

DISTRICT COURT OF APPEAL OF FLORIDA

SECOND DISTRICT

MIREILLE ANAHI VARGAS BURGOS,

Appellant,

v.

MARY BURGOS VARGAS and MARTIN GREGORY SEQUEIRA,

Appellees.

No. 2D2024-0385

October 16, 2024

Appeal from the Circuit Court for Hillsborough County; Robert A. Bauman, Judge.

Kerya L. Koeut of Law Office of Kerya L. Koeut, P.A., St. Petersburg; and Allison M. Perry of Florida Appeals, P.A., Tampa, for Appellant.

Mary Burgos Vargas, pro se.

Martin Gregory Sequeira, pro se.

SMITH, Judge. Mireille Burgos, the aunt who was awarded temporary custody of the minor child subject to the underlying custody dispute brought pursuant to the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), challenges on due process grounds a sua sponte order issued by the trial court that relinquished jurisdiction to a North

I.

On November 29, 2023, the Aunt, with the consent of both the child's parents, filed a Petition for Temporary Custody of the minor child. The Aunt was awarded temporary custody of the child pursuant to chapter 751, Florida Statutes, on January 16, 2024, and the trial court's Order Granting Petition for Temporary Custody by a Relative following a January 9, 2024, hearing on the Aunt's petition. In the January 16, 2024, order, the trial court made a number of findings of fact, including that the Aunt "is residing in Hillsborough County, Florida"; that the child's mother and father had each signed a Waiver of Service of Process and Consent to the Aunt's petition on November 29, 2023, both of which the trial court attached to the January 16, 2024, order; and that "[i]t is in the best interests of the [child], that [the Aunt] be granted temporary custody of the [child], pending further order of the Court." The underlying Petition alleged that both of the child's parents were incarcerated in 2023, that in November 2023 the Aunt came to Tampa from her home in Argentina to help care for the child, and that the child's maternal grandmother also came to Tampa from her home in North Carolina to help care for the child. The Petition also alleged that on November 27, 2023, the Grandmother brought the child back to her home in North Carolina. The Grandmother was not served formally with the Petition and notice of the hearing; however, the Aunt alleged that a process server spoke with the Grandmother via telephone and emailed

1 Section 61.508, headed "Priority," provides, "If a question of existence or exercise of jurisdiction under this part is raised in a child custody proceeding, the question, upon request of a party, must be given priority on the calendar and handled expeditiously."

II.

We review de novo the question of whether a trial court has violated a party's due process rights. A.R. v. Dep't of Child. & Fams., 336 So. 3d 830, 833 (Fla. 2d DCA 2022) (quoting Dobson v. U.S. Nat'l Ass'n, 217 So. 3d 1173, 1174 (Fla. 5th DCA 2017)); see also Williams v. Sapp, 255 So. 3d 912, 914 (Fla. 1st DCA 2018) ("Appellate courts review possible due process violations in family law cases de novo." (citing Dep't of Revenue ex rel. Thorman v. Holley, 86 So. 3d 1199, 1204 (Fla. 1st DCA 2012)). We answer that question in the affirmative for the reasons stated below. "One purpose of the UCCJEA is the avoidance of 'jurisdictional competition and conflict with courts of other states in matters of child

2 The trial judge who entered the order relinquishing jurisdiction was not the same trial judge who entered the January 16, 2024, order granting temporary child custody to the Aunt.

6 (g) The ability of the court of each state to decide the issue expeditiously and the procedures necessary to present the evidence; and (h) The familiarity of the court of each state with the facts and issues in the pending litigation. Id. In the instant case, without notice and without allowing the parties to submit information pursuant to the statute, the trial court determined on its own motion that the North Carolina court was the more convenient forum.³ Making this determination without granting the parties an opportunity to be heard is generally error. See Fla. Dep't of Child. & Fams. v. M.N., 199 So. 3d 452, 455-56 (Fla. 3d DCA 2016) (reversing order of dismissal and remanding for further proceedings where record did not reflect trial court's consideration of factors under section 61.520(2)); cf. Steckler v. Steckler, 921 So. 2d 740, 744 (Fla. 5th DCA 2006) (holding that the court did not abuse its discretion in failing to hold an evidentiary hearing on the section 61.520(2) factors, where the movant submitted information on some of the factors and the court declined to relinquish jurisdiction). Those cases reversing and remanding to allow the parties notice and an opportunity to be heard dealt with situations in which one or both the child's parents were involved in the custody dispute. There is no question that a child's parents are entitled to notice and an opportunity to be heard in proceedings under the UCCJEA. In this case, the Aunt, who was granted temporary custody under section

3 When the court made this determination, two of the Aunt's emergency motions were pending which addressed a number of the section 61.520(2) factors, although it is not apparent from the record in this case whether the trial court considered the information in the Aunt's motions in deciding to relinquish jurisdiction.

SLEET, C.J., and ATKINSON, J., Concur.

Opinion subject to revision prior to official publication.

4 This opinion is not to be construed as requiring the trial court to hold an evidentiary hearing or enter written findings on the section 61.520(2) factors.