Divorce in another state? Modifying your parenting plan or child support may not be as easy you think.
Did you and your kids move to Florida after divorcing in another State? Unfortunately, current State and Federal laws may make modifying your out-of-state parenting plan or child support order difficult to accomplish and force you to litigate in more than one State. Sounds crazy, right? But in Kessinger v. Kessinger, 228 So.3d 1201 (Fla. 1st DCA 2017), the Second District recently reversed a trial court’s judgment domesticating an out-of-state divorce judgment and child custody order for lack of jurisdiction (legal authority to modify) even though Dad and child lived together in Florida.
In Kessinger, the parties divorced in the State of New York in 2011. The parties’ Final Judgment of Dissolution of Marriage incorporated a custody arrangement declaring the Mother as the primary residential parent and required the Father to provide child support for the parties’ three (3) minor children until age 21.
Both parties eventually moved out of New York. The Father moved to Florida, and the Mother moved to Georgia. In 2015, the Father filed a petition to domesticate and modify the New York judgment based child custody and support orders. He filed the petition in Florida. At the time he filed, two of the parties’ children were 18 and the youngest lived with the Father in Florida. Understandably, the Father wanted to recalculate child support and modify his parenting plan to reflect the current timesharing arrangement.
Seems like a no-brainer, right? If Dad and the youngest child live here, why shouldn’t he be able to modify the old, no longer relevant, court order(s) to reflect the parties’ current arrangement? Proper jurisdiction matters, and the First District Court of Appeals had to reverse and vacate the trial court’s order granting the Father’s Petition, and dismiss the Father’s petition, because Florida simply did not have jurisdiction to grant the relief requested by the Father.
So, what happened, and why?
Mistake #1: Trying to modify timesharing in Florida. As it relates the Father’s request to modify the parenting plan, the First District pointed out that at the time of filing, Florida was not yet the child’s home state. Subject matter jurisdiction over child custody matters is governed in Florida by what is called the Uniform Child Custody Jurisdiction and Enforcement Act (“UCCJEA”). Fla. Stat. §§61.501-61.542 (2017). Under Fla. Stat. §61.503, Florida is the child’s “home state” once the child has lived in Florida for at least six (6) consecutive months immediately before commencement of a child custody proceeding. Kessinger doesn’t tell us how long the child had been living with the Father in Florida but based on the appellate’ s court’s ruling, we can assume it was less than 6 months before the Father filed.
Further complicating matters is the fact that the UCCJEA does not govern interstate child support matters. Florida has adopted into its laws a federal law known as the Uniform Interstate Family Support Act (“UIFSA”). Fla. Stat. §§ 88.0011-88.9031. UIFSA is intended to provide uniformity amongst the states for child support procedures, but as discussed below, it makes little practical sense when applying it to modern day scenarios. Which leads us to…
Mistake #2: Trying to modify child support in Florida. Fla. Stat. §88.6131 allows modification of a foreign (out-of-state) child support order only if both parties reside in Florida. If only one (1) party resides in Florida, Fla. Stat §88.6111 applies and will allow Florida to modify the foreign child support order if the party requesting modification (petitioner) is NOT a Florida resident or if both parties sign a consent giving Florida jurisdiction. Come again? You read that right. In Kessinger, because the Father was a resident of the State of Florida, he was forbidden from modifying child support here unless the Mother consented to Florida’s jurisdiction (which obviously, she did not).
You’re not alone if you think this defies common sense:
“The Uniform Interstate Family Support Act, mandated by federal legislation, became effective July 1, 1997. It contains possible the most cumbersome, redundancy filled, unscholarly, confusing and poorly written set of civil remedies imaginable.” Trawick’s Florida Practice and Procedure (2005).
In short, the Father in Kessinger will be stuck litigating timesharing in Florida and child support in Georgia. The only way to modify his child support obligation through a Court here in Florida is if the Mother moves to Florida, or if she signs a document consenting to Florida’s jurisdiction to modify support.
Kessinger teaches us that we must proceed with caution before attempting to litigate an out-of-state Order. A complete understanding of both State and Federal laws is necessary to avoid the Court dismissing your case for lack of jurisdiction. Long & Associates, P.A. represent clients in all areas of family law litigation. Please contact Long & Associates, P.A. at 239-316-1600 or e-mail us at [email protected] to set a confidential appointment with one of our Naples Family Law attorneys today.
Florida State Statutes
Uniform Child Custody Jurisdiction and Enforcement Act
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