PATRICIA M. NIEBURGER, PETITIONER,
v.
HERBERT G. NIEBURGER, JR., RESPONDENT
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Patricia Nieburger petitioned for certiorari to review a circuit court's denial of her motion to compel her ex-husband to return their minor son from New Mexico to Florida for custody adjudication. The appellate court held that Florida courts lack jurisdiction to initially adjudicate child custody unless the child is physically present within the court's territorial jurisdiction at the time the custody suit is filed.
A Florida circuit court lacks jurisdiction to initially adjudicate the custody of a minor child unless the child is physically present within the court's territorial jurisdiction at the time the suit seeking custody adjudication is filed, even if the court has personal jurisdiction over the defendant parent.
“It has long been the law of this state that courts have no jurisdiction to initially adjudicate the custody of a minor child unless such child is physically present within the territorial jurisdiction of the court at the time the suit seeking an adjudication of its custody is filed.”
Establishes the fundamental rule that physical presence of the child within the court's territorial jurisdiction is a jurisdictional prerequisite for initial custody adjudication.
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Join FLexlaw to unlock all legal intelligencePatricia Nieburger filed for divorce and sought custody of the parties' minor children in January 1967. The couple's two-year-old son, Todd, had been …
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The plaintiff in an action for divorce has petitioned for the writ of certiorari seeking our review of an order entered by the Circuit Court for Volusia County denying her motion to compel the defendant to return a minor child born of the marriage to the territorial jurisdiction of that court.
The question presented for our determination in these proceedings is whether that court correctly entered the said order, where the court has jurisdiction of the child’s parents, who are domiciled in Florida, and the child was removed from Florida to New Mexico prior to the institution of the divorce action and is physically absent from Florida against the will of the mother, the plaintiff.
Briefly, the pertinent background facts in our present inquiry are as follows: On January 5, 1967, the plaintiff filed her said action praying for a divorce and for the care, custody, and control of the parties’ minor children. Several months later the plaintiff filed her said motion to require the defendant to return to the jurisdiction of the Circuit Court the parties’ two-year-old son, Todd, who, with his parents’ consent, had been permitted in 1966 to live with his aunt in the State of New Mexico, and since that time he has not been in the State of Florida. The court has not entered any order touching upon the custody of, or support for, Todd.
The question of the jurisdiction of the Circuit Court to grant the plaintiff’s motion to compel the return of the parties’ minor child is, we think, controlled by the decision of this court in Smith v. Davis, Fla.App., 147 So.2d 177 (1962), in which we held:
“It has long been the law of this state that courts have no jurisdiction to initially adjudicate the custody of a minor child unless such child is physically present within the territorial jurisdiction of the court at the time the suit seeking an .adjudication of its custody is filed. This rule prevails even though personal service of process is had upon the defendant who has custody of the child in a foreign jurisdiction.”
These principles are grounded upon the Florida decisions cited in the footnotes in the Smith opinion. The quoted holding was expressly followed by the Second District Court of Appeal in the recent case of Mirras v. Mirras, Fla.App., 202 So.2d 887 (1967) in a somewhat analogous situation.
On the authority of the foregoing decisions we are of the opinion that the Circuit Court lacked jurisdiction to grant the relief sought in the plaintiff’s said motion. Even if that court had such jurisdiction, we are of the further opinion that the plaintiff has failed to demonstrate that *384the court abúsed its judicial discretion in denying the relief sought in plaintiff’s said motion.
Accordingly, the petition for writ of cer-tiorari must be and it is
Denied.
RAWLS and JOHNSON, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Mouzon v. Mouzon, 458 So. 2d 381 (Fla. 5th DCA 1984)…55 (Fla. 4th DCA 1971); Reinhart v. Reinhart, 291 So. 2d 103 (Fla. 1st DCA 1974); Keena v. Keena, 245 So. 2d 665 (Fla. 1st DCA 1971); Powell v. Powell, 242 So. 2d 138 (Fla. 1st DCA 1970), rev. den., 258 So. 2d 818 (Fla.1972); Nieburger v. Nieburger, 214 So. 2d 382 (Fla. 1st DCA 1968); Smith v. Davis, 147 So. 2d 177 (Fla. 1st DCA 1962). An earlier Florida case alluded to the theoretical basis as being the child's domicile. See Dorman v. Friendly, 146 Fla. 732, 1 So. 2d 734 (1941). Also see Annot., Jurisdiction…
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Periolat v. Periolat, 336 So. 2d 1256 (Fla. 2d DCA 1976)…use the child was within the court’s jurisdiction when the complaint was filed and the complaint so alleged. Mirras v. Mirras, Fla.App.2d 1967, 202 So. 2d 887; Rich v. Rich, Fla.App.4th 1968, 214 So. 2d 777; Nieburger v. Nieburger, Fla.App.1st 1968, 214 So. 2d 382. Therefore, the trial judge’s order in respect to temporary custody is affirmed. Affirmed in part, reversed in part, and remanded for further proceedings consistent with this opinion. HOBSON, A. C. J., and GRIMES and SCHEB, JJ., concur. . Appelle…
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Darian Northrup Castle v. Castle, 247 So. 2d 455 (Fla. 4th DCA 1971)…of the law, this fact deprived the court of jurisdiction to initially adjudicate the custody of the minor child. Dorman v. Friendly, 1941, 146 Fla. 732, 1 So. 2d 734; Rich v. Rich, Fla.App.1968, 214 So. 2d 777; Nieburger v. Nieburger, Fla.App.1968, 214 So. 2d 382; Mirras v. Mirras, Fla.App.1967, 202 So. 2d 887; Smith v. Davis, Fla.App.1962, 147 So. 2d 177. The custody order appealed is reversed. REED, J., concurs. WALDEN, J., dissents, with opinion.…1 / 2
Authorities Cited
- Mirras v. Mirras, 202 So. 2d 887 (Fla. 2d DCA 1967)
- Maxie Keith Smith v. Davis, 147 So. 2d 177 (Fla. 1st DCA 1962)