Miami Court Rules New York, Rather than Florida, Was the Proper Place to Resolve Custody Issues Between Fathers of Toddler Daughter

With same-sex marriage having been legally recognized in Florida for just over two years now, the legal system in this state will, inevitably, see an increase in family law cases with same-sex spouses and same-sex parents. Sometimes, South Florida family law cases involving same-sex partners may present unique issues. Other times, though, same-sex couples will find that their cases will be decided by the same things that influence cases with opposite-sex partners. That was the case recently for two married men, one of whom had their Florida case scuttled by the legal concept of forum non conveniens.

The couple, Marco and Han, entered into a civil partnership in the United Kingdom in 2008. That was converted into a marriage in the U.K. in 2015. Marco had dual citizenship in Italy and the U.K. Han had dual citizenship in Malaysia and the U.K. The couple shared one child, a daughter who was born in Missouri in 2014. A Missouri court gave Marco sole custody of the child.

For just less than one year, from 2014 to 2015, the family lived in Miami, residing in a friend’s apartment. Han moved back to London in the fall of 2015 and never returned to Florida. Marco and the daughter moved to New York in the following March, where they stayed. Marco filed for divorce in London in April 2016. Han filed for divorce here in South Florida a month later.

The trial court in Florida determined that it did not have jurisdiction over the divorce case. Florida law says that, in general, in order for Florida courts to have jurisdiction to hear and resolve your divorce case, one of you must live here and have resided here for at least six months. At the time of the divorce, Marco was a resident of New York, and Han resided in England. As a result, Marco’s petition went forward, and the divorce was litigated in London.

Since the child lived in Miami from December 2015 to October 2016, both spouses agreed that the Florida courts had jurisdiction over all of the child custody and timesharing issues, in accordance with the rules established by the Uniform Child Custody Jurisdiction and Enforcement Act. The UCCJEA gives jurisdiction to whatever is the child’s “home state.” Generally, a UCCJEA “home state” is the most recent state in which the child has resided for at least six months. In this case, the daughter had resided in New York for only a few weeks when the spouses filed their respective divorce petitions. Before that, she resided in Miami for 10 months.

Just deciding the issue of jurisdiction is not everything, though. Even if a court has jurisdiction, a party may be entitled to seek and obtain an order of dismissal on the ground of forum non conveniens. That is a Latin phrase that essentially means that the forum (in this case, Florida) is not appropriate because there is another jurisdiction better suited to resolve the case. In Florida, Section 61.520 of the Florida Statutes governs issues regarding forum non conveniens and UCCJEA cases.

Section 61.520 looks at many factors, including logistical ones. Logistical issues played a key role here. The daughter’s biological father, her caretakers, her nanny, her pediatrician, and her school all were located in New York. On the other hand, none of the relevant documents or witnesses, including Han, was situated in Florida. Additionally, litigating in Miami would mean that all of the parties would have to travel (either from New York or London), while litigating in New York would greatly reduce travel for Marco and the child, while imposing no greater burden on Han (who would have to travel either way). These factors, in tandem, meant that New York was clearly more convenient, and Marco was entitled to have his motion to dismiss in Florida granted.

Each Florida family law case comes with its own factual and legal peculiarities that make it unique. Whether it’s a same-sex marriage, international citizenship, or another issue, experienced Florida counsel can help you take the unique components of your situation and put together a strong case. The knowledgeable South Florida child custody attorneys at Sandy T. Fox, P.A. have been helping people with divorce and custody issues for many years. Contact our attorneys online or by calling (800) 596-0579 to schedule your confidential consultation.

More blog posts:

Procedural Deadline Rules and How They Can Make or Break Your Florida Family Law Case, Fort Lauderdale Divorce Lawyer Blog, June 16, 2017

Florida Court Orders Russian Mother to Adjudicate Child Support Case Overseas, Fort Lauderdale Divorce Lawyer Blog, Dec. 12, 2013