Nelson v. Nelson, No. 82-2596

CourtCourt of Appeal of Florida (US)
Writing for the CourtBefore SCHWARTZ; DANIEL S. PEARSON; JORGENSON
Citation433 So.2d 1015
PartiesRonald L. NELSON, Appellant, v. Donna G. NELSON, Appellee.
Decision Date14 June 1983
Docket NumberNo. 82-2596

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.

Page 1016

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

Page 1017

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

Page 1018

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...

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32 practice notes
  • Ex parte J.R.W.
    • United States
    • Supreme Court of Alabama
    • March 18, 1994
    ...147 Ariz. 584, 712 P.2d 431 (Ariz.1986); Brock v. District Court of Boulder County, 620 P.2d 11, 14 (Colo.1980); Nelson v. Nelson, 433 So.2d 1015, 1019 (Fla.Dist.Ct.App.1983); Silva v. Tucker, 500 A.2d 947, 949 (R.I.1985); Gainey v. Gainey, 237 Ill.App.3d 868, 604 N.E.2d 950 (1992); Garza v......
  • Von Eiff v. Azicri, No. 96-3273
    • United States
    • Court of Appeal of Florida (US)
    • September 17, 1997
    ...640 So.2d 1084 (Fla.1994). The state also has a compelling interest in protecting children from emotional harm. See Nelson v. Nelson, 433 So.2d 1015 (Fla. 3d DCA 1983). Accordingly, the state can require that parents enroll their children in school, that they adequately feed them, clothe th......
  • Umina v. Malbica, No. 88-P-34
    • United States
    • Appeals Court of Massachusetts
    • May 23, 1989
    ...omitted). Even in some UCCJA states, courts have read a limited scope into their emergency jurisdiction provision. Nelson v. Nelson, 433 So.2d 1015, 1019 (Fla.Dist.Ct.App.1983). Nussbaumer v. Nussbaumer, 442 So.2d 1094, 1097 (Fla.Dist.Ct.App.1983). Hache v. Riley, 186 N.J.Super. 119, 128-12......
  • State in Interest of D.S.K., No. 890025-CA
    • United States
    • Utah Court of Appeals
    • April 25, 1990
    ...contravene those of a sister state that still retains jurisdiction over custody. See, e.g., Brock, 620 P.2d at 14; Nelson v. Nelson, 433 So.2d 1015, 1019 (Fla.Ct.App.1983); Silva v. Tucker, 500 A.2d 947, 949 We recognize that the emergency provision may lead to attempts at forum shopping ba......
  • Request a trial to view additional results
32 cases
  • Ex parte J.R.W.
    • United States
    • Supreme Court of Alabama
    • March 18, 1994
    ...147 Ariz. 584, 712 P.2d 431 (Ariz.1986); Brock v. District Court of Boulder County, 620 P.2d 11, 14 (Colo.1980); Nelson v. Nelson, 433 So.2d 1015, 1019 (Fla.Dist.Ct.App.1983); Silva v. Tucker, 500 A.2d 947, 949 (R.I.1985); Gainey v. Gainey, 237 Ill.App.3d 868, 604 N.E.2d 950 (1992); Garza v......
  • Von Eiff v. Azicri, No. 96-3273
    • United States
    • Court of Appeal of Florida (US)
    • September 17, 1997
    ...640 So.2d 1084 (Fla.1994). The state also has a compelling interest in protecting children from emotional harm. See Nelson v. Nelson, 433 So.2d 1015 (Fla. 3d DCA 1983). Accordingly, the state can require that parents enroll their children in school, that they adequately feed them, clothe th......
  • Umina v. Malbica, No. 88-P-34
    • United States
    • Appeals Court of Massachusetts
    • May 23, 1989
    ...omitted). Even in some UCCJA states, courts have read a limited scope into their emergency jurisdiction provision. Nelson v. Nelson, 433 So.2d 1015, 1019 (Fla.Dist.Ct.App.1983). Nussbaumer v. Nussbaumer, 442 So.2d 1094, 1097 (Fla.Dist.Ct.App.1983). Hache v. Riley, 186 N.J.Super. 119, 128-12......
  • State in Interest of D.S.K., No. 890025-CA
    • United States
    • Utah Court of Appeals
    • April 25, 1990
    ...contravene those of a sister state that still retains jurisdiction over custody. See, e.g., Brock, 620 P.2d at 14; Nelson v. Nelson, 433 So.2d 1015, 1019 (Fla.Ct.App.1983); Silva v. Tucker, 500 A.2d 947, 949 We recognize that the emergency provision may lead to attempts at forum shopping ba......
  • Request a trial to view additional results

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