October 14, 2021

Bresky Law Obtains Denial of Petition for Writ of Prohibition Claiming Florida Courts Lacked Jurisdiction of Paternity Suit Under UCCJEA

October 6, 2021*

Bresky Law recently obtained an order denying a petition for writ of prohibition in a family law matter in which the parties disputed which state’s courts properly had jurisdiction under the Uniform Child Custody Jurisdiction and Enforcement Act (“UCCJEA”). 

The parties initially resided in Florida for several years as an unmarried couple. When the mother became pregnant, the parties temporarily moved to New Jersey for approximately five months so that the mother could obtain medical care in New York. They moved back to Florida two months after the birth of the child. The mother later claimed that the return to Florida was temporary and the parties intended to move back to New Jersey but were prevented from doing so by the COVID-19 pandemic. The father maintained that the parties intended to return to Florida to reside here as a family indefinitely. 

The parties’ relationship fractured and the mother left Florida and returned to New Jersey with the parties’ child. The father promptly filed a paternity suit in Florida. The mother filed a paternity proceeding in New Jersey the following day. The mother then filed a motion to dismiss the father’s paternity suit in Florida, arguing that the trial court lacked subject matter jurisdiction because she was only staying in Florida temporarily. 

The trial court held a hearing on the mother’s motion to dismiss and heard evidence from witnesses. The parties presented differing versions of the facts surrounding their intentions regarding their residency. The undisputed facts at the hearing established that the parties and child resided in Florida for more than six months prior to the father filing the petition. The trial court found that Florida was the child’s home state under the UCCJEA, as the child lived in Florida for more than six consecutive months prior to the father filing the petition to initiate the paternity proceeding. The trial court denied the motion to dismiss.

The mother filed a petition for writ of prohibition seeking review in the Third District Court of Appeal (“Third DCA”). We represented the father in the Third DCA. We stressed that jurisdictional priority under the UCCJEA lies in the child’s home state which is defined as the state in which a child lived with a parent or person acting as a parent for at least 6 consecutive months immediately before the commencement of a child custody proceeding. We maintained that jurisdiction in Florida was appropriate because the undisputed evidence supported the trial court’s determinative factual finding that the parties and child lived in Florida from late November of 2019 until August 7, 2020 when the mother left Florida with the child. 

In a written order, the Third DCA agreed with Bresky Law’s arguments on behalf of our client. The Third DCA applied a UCCJEA analysis and concluded that the facts supported the determination that the child lived with the parents in Florida for more than six consecutive months prior the filing of the petition, even though the child was absent from the state at the time the initial paternity petition was filed. The Third DCA noted that the parties’ desires and future plans were immaterial to the issue of jurisdiction. The court also noted that the New Jersey court had deferred to the Florida court and declined to exercise jurisdiction. 

The Third DCA therefore denied the mother’s request for a writ of prohibition. The Third DCA also remanded for a determination regarding appellate attorney’s fees. This favorable result for our client confirms that jurisdiction of the paternity suit is proper in Florida and the proceeding may move forward accordingly. It also allows him to seek attorney’s fees. 

* Not final until disposition of timely filed motion for rehearing.