Nelson v. Nelson

• Decision Date: 14 June 1983
• Docket Number: No. 82-2596,82-2596
• Citation: 433 So.2d 1015
• Court: Florida District Court of Appeals
• Parties: Ronald L. NELSON, Appellant, v. Donna G. NELSON, Appellee.

Page 1015

433 So.2d 1015

Ronald L. NELSON, Appellant, v. Donna G. NELSON, Appellee.

No. 82-2596.

District Court of Appeal of Florida Third District.

June 14, 1983.

Rehearing Denied July 22, 1983.

Paul R. Lipton, North Miami Beach, for appellant.

A.N. Spence, Coral Gables, for appellee.

Before SCHWARTZ, C.J., and DANIEL S. PEARSON and JORGENSON, JJ.

DANIEL S. PEARSON, Judge.

The appellee-mother petitioned the Circuit Court of Dade County, Florida, to change the permanent custody of her children from the father to her. She attempted to invoke the trial court's jurisdiction solely under a provision of Florida's Uniform Child Custody Jurisdiction Act, Section 61.1308(1)(c)2, Florida Statutes (1981), the requirements of which are that the subject child be physically present in this state, and "[i]t is necessary in an emergency to protect the child because he has been subjected to or threatened with mistreatment or abuse or is otherwise neglected." ¹ Her petition for change of custody alleged that the children are visiting with her in Dade County, Florida, and "are being mistreated and abused by their present stepmother." Her amended petition embellished upon this charge, asserting that the children "have been subjected to cruel and inhuman punishment by their present stepmother" and that one of the children stated that he "would rather die than go back to New York to live with his present stepmother." Upon these allegations, the trial court assumed jurisdiction and granted the appellant temporary custody pending a full hearing in the Florida court on appellee's petition for change of permanent custody. The father appeals, and we reverse upon a holding that the allegations of the mother's petition are insufficient to invoke the jurisdiction of a Florida court to change the permanent custody of the children.

Section 61.1308(1)(c)2 is designed to vest jurisdiction in courts of this state for emergencies only. Thus, if a child is alleged to be physically present in this state in the company of the alleged mistreater or abuser, a Florida court would be free to conclude, upon proof of these allegations, that an emergency exists and would have jurisdiction over the petition for change of custody. But where, as here, petitioner's allegations of mistreatment and abuse of the children at the hands of the stepmother in New York, although couched in the present tense, definitively show that the alleged mistreatment and abuse are not occurring at the time of the filing of the petition, but rather are simply capable of resuming upon the children's return to New York, an emergency sufficient for jurisdiction to change permanent custody does not exist.

We acknowledge that in Hegler v. Hegler, 383 So.2d 1134 (Fla. 5th DCA 1980), and Moser v. Davis, 364 So.2d 521 (Fla. 2d DCA 1978), our sister courts have, without discussion of this distinction, found jurisdiction to exist under Section 61.1308(1)(c)2, under circumstances similar to the present case. We decline to follow these holdings because we believe they extend the jurisdiction of courts of this state beyond that intended by the Legislature. ²

We concede that it is arguable that the language of Section 61.1308(1)(c)2 is susceptible to the construction that even though alleged prior abuse and mistreatment have been interrupted by the non-custodial parent gaining physical custody of the child, the threat of resumption of such conduct when the child is returned to the custodial parent in the domicile state of the child creates emergency jurisdiction. We believe, however, that the use of the past tense in the statute, "[the child] has been subjected to or threatened with mistreatment or abuse," contemplates that such mistreatment and abuse have occurred and are capable of immediately recurring in Florida. We thus agree with the construction placed on an identical emergency provision by the Louisiana Supreme Court in Dillon v. Medellin, 409 So.2d 570, 575 (La.1982):

"We construe this emergency provision as permitting a state, otherwise without jurisdiction over a visiting child or her nonresident mother, to take jurisdiction in a custody matter only if the immediate needs of the child require it because the child has been abandoned or otherwise mistreated, abused, or neglected. The statute contemplates that conditions in the asylum state and the immediacy of those conditions will provide both the necessity and the justification for the asylum state's assuming jurisdiction over a custody matter not otherwise within its province.... We do not construe La.R.S. 13:1702(A)(3) to mean that a child visiting an asylum state may be found to be in an emergency state of mistreatment, abuse, neglect or dependency because of allegations concerning conditions purportedly existing in the home state, conditions more appropriately and conveniently subject to the scrutiny of the courts of the domicile state." (footnote omitted) (emphasis in original).

Thus, emergency jurisdiction sufficient to effect a change of permanent custody is confined to those situations in which a person other than the non-custodial parent-petitioner has physical custody of the child in a state otherwise without jurisdiction under the Uniform Child Custody Jurisdiction Act and it is alleged that mistreatment and abuse at the hands of the physical custodian have occurred. Thus, if a child is alleged to be in this state in the physical custody of a person who is mistreating or abusing the child, a court of this state may assume jurisdiction over the non-custodial parent's petition for change of permanent custody when satisfied upon proof that these allegations are true.

We fully recognize that at least several other states have, again without discussion of this distinction, found jurisdiction to exist under the emergency provision of the Uniform Child Custody Jurisdiction Act upon allegations that the child had been mistreated or abused in the domicile state and, although safe in the asylum state at the time of the petition, was fearful to return to the domicile state. See, e.g., Breneman v. Breneman, 92 Mich.App. 336, 284 N.W.2d 804 (1979); Marcrum v. Marcrum, 181 N.J.Super, 361, 437 A.2d 725 (1981), cert. granted, 89 N.J. 402, 446 A.2d 136 (1982); Priscilla S. v. Albert B., 102 Misc.2d 650, 424 N.Y .S.2d 613 (1980). However, we think that to allow the non-custodial parent, such as the petitioner here, who has gained physical custody and control of the children in Florida through visitation, to vest jurisdiction in a Florida court by alleging past mistreatment and abuse in the domicile state on the part of the custodial parent would be to allow the emergency provision of Section 61.1308(1)(c)2 to subsume all other jurisdictional provisions in total disregard of the purposes of the Uniform Child Custody Jurisdiction Act. See Hricko v. Stewart, 99 Misc.2d 266, 415 N.Y.S.2d 747 (1979) (emergency jurisdictional provision of Act should not be misused so as to defeat the purposes or objectives of the Act). Particularly pertinent here are the following declared purposes of the Act:

"61.1304 Purposes of act; construction of provisions.--The general purposes of this act are to:

"(1) Avoid jurisdictional competition and conflict with courts of other states in matters of child custody which have in the past resulted in the shifting of children from state to state with harmful effects on their well-being.

"(2) Promote cooperation with the courts of other states to the end that a custody decree is rendered in the state which can best decide the case in the interest of the child.

"(3) Assure that litigation concerning the custody of a child takes place ordinarily in the state with which the child and his family have the closest connection and where significant evidence concerning his care, protection, training, and personal relationships is most readily available, and that courts of this state decline the exercise of jurisdiction when the child and his family have a closer connection with another state.

"(4) Discourage continuing controversies over child custody in the interest of greater stability of home environment and of secure family relationships for the child.

"(5) Deter abductions and other unilateral removals of children undertaken to obtain custody awards."

To hold that allegations of prior mistreatment and abuse in the domicile state are sufficient to create emergency jurisdiction when the child is in the physical custody of the petitioning parent in the asylum state is to create rather than avoid jurisdictional competition with courts of other states; to encourage rather than discourage the harmful shifting of children from state to state; to have litigation concerning custody take place in a state with no significant connection with the child; to foster rather than prevent continuing controversies over child custody; and to promote rather than deter abduction or removal of children for the purpose of obtaining a child custody award. Indeed, under such a holding, every visit to a non-custodial parent in Florida accompanied by a tale of mistreatment at the hands of the custodial parent in the domicile state would give rise to a petition for change of custody being filed in Florida; the probability of a non-custodial parent removing the child to Florida for the purpose of petitioning the Florida court for a change of custody would be greatly enhanced; and every instance in which the custodial parent is economically disadvantaged to conduct litigation away from the child's domicile would hold the potential for the child's removal to Florida by a more affluent non-custodial parent.

It has been said, however, that the Uniform Child Custody Jurisdiction Act should not be construed so as to give considerations of comity precedence over the best interest of the child. See Marcrum v. Marcrum, 437 A.2d at 727. We do not disregard that caveat, but are of the view that both comity and the child's welfare are...