House Bill 0377

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    Florida House of Representatives - 2000                 HB 377

        By the Committee on Family Law & Children and
    Representatives Detert, Wallace, Brown and Effman





  1                      A bill to be entitled

  2         An act relating to child custody jurisdiction

  3         and enforcement; creating the "Uniform Child

  4         Custody Jurisdiction and Enforcement Act";

  5         providing definitions; specifying proceedings

  6         not governed by the act; providing application

  7         to Indian tribes; providing international

  8         application of the act; providing the effect of

  9         a child custody determination; providing

10         priority for questions of jurisdiction under

11         the act; providing for notice to persons

12         outside the state; providing for appearance at

13         proceedings and limited immunity; providing for

14         communication between courts of this state and

15         courts of other states; providing for taking

16         testimony in another state; providing for

17         cooperation between courts and the preservation

18         of records; providing for initial child custody

19         jurisdiction; providing for exclusive,

20         continuing jurisdiction; providing for

21         jurisdiction to modify a child custody

22         determination; providing for temporary

23         emergency jurisdiction; providing for notice,

24         opportunity to be heard, and joinder; providing

25         procedures with respect to simultaneous

26         proceedings; providing for determination of an

27         inconvenient forum; providing procedures for a

28         decline of jurisdiction by reason of conduct;

29         specifying information to be submitted to the

30         court; providing for the appearance of the

31         parties and the child at proceedings; providing

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  1         definitions relating to enforcement; providing

  2         for enforcement under the Hague Convention;

  3         providing duty of the court to enforce child

  4         custody determinations of a court of another

  5         state; providing for temporary visitation;

  6         providing for registration of out-of-state

  7         child custody determinations; providing for

  8         enforcement of registered determinations;

  9         providing procedures with respect to

10         simultaneous proceedings; providing for

11         expedited enforcement of a child custody

12         determination; providing for service of

13         petition and order; providing for hearing and

14         order; providing for issuance of a warrant to

15         take physical custody of a child under certain

16         circumstances; providing for award of costs,

17         fees, and expenses to the prevailing party;

18         providing for recognition of enforcement orders

19         of a court of another state; providing for

20         appeals; providing for actions by the state

21         attorney; providing for actions by law

22         enforcement officers; providing for assessment

23         of costs and expenses incurred by the state

24         attorney and law enforcement officers;

25         providing for application and construction of

26         the act; providing severability; providing for

27         transition; amending ss. 39.502, 61.13, and

28         741.30, F.S.; conforming references and cross

29         references; repealing ss. 61.1302, 61.1304,

30         61.1306, 61.1308, 61.131, 61.1312, 61.1314,

31         61.1316, 61.1318, 61.132, 61.1322, 61.1324,

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  1         61.1326, 61.1328, 61.133, 61.1332, 61.1334,

  2         61.1336, 61.1338, 61.134, 61.1342, 61.1344,

  3         61.1346, and 61.1348, F.S., relating to the

  4         "Uniform Child Custody Jurisdiction Act";

  5         providing an effective date.

  6

  7  Be It Enacted by the Legislature of the State of Florida:

  8

  9         Section 1.  Short title.--This act may be cited as the

10  "Uniform Child Custody Jurisdiction and Enforcement Act."

11         Section 2.  Definitions.--In this act:

12         (1)  "Abandoned" means left without provision for

13  reasonable and necessary care or supervision.

14         (2)  "Child" means an individual who has not attained

15  18 years of age.

16         (3)  "Child custody determination" means a judgment,

17  decree, or other order of a court providing for the legal

18  custody, physical custody, or visitation with respect to a

19  child. The term includes a permanent, temporary, initial, and

20  modification order. The term does not include an order

21  relating to child support or other monetary obligation of an

22  individual.

23         (4)  "Child custody proceeding" means a proceeding in

24  which legal custody, physical custody, or visitation with

25  respect to a child is an issue. The term includes a proceeding

26  for divorce, separation, neglect, abuse, dependency,

27  guardianship, paternity, termination of parental rights, and

28  protection from domestic violence, in which the issue may

29  appear. The term does not include a proceeding involving

30  juvenile delinquency, contractual emancipation, or enforcement

31  under sections 23 through 39.

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  1         (5)  "Commencement" means the filing of the first

  2  pleading in a proceeding.

  3         (6)  "Court" means an entity authorized under the law

  4  of a state to establish, enforce, or modify a child custody

  5  determination.

  6         (7)  "Home state" means the state in which a child

  7  lived with a parent or a person acting as a parent for at

  8  least 6 consecutive months immediately before the commencement

  9  of a child custody proceeding. In the case of a child less

10  than 6 months of age, the term means the state in which the

11  child lived from birth with any of the persons mentioned. A

12  period of temporary absence of any of the mentioned persons is

13  part of the period.

14         (8)  "Initial determination" means the first child

15  custody determination concerning a particular child.

16         (9)  "Issuing court" means the court that makes a child

17  custody determination for which enforcement is sought under

18  this act.

19         (10)  "Issuing state" means the state in which a child

20  custody determination is made.

21         (11)  "Modification" means a child custody

22  determination that changes, replaces, supersedes, or is

23  otherwise made after a previous determination concerning the

24  same child, whether or not it is made by the court that made

25  the previous determination.

26         (12)  "Person" means an individual, corporation,

27  business trust, estate, trust, partnership, limited liability

28  company, association, joint venture, or government;

29  governmental subdivision, agency, instrumentality, or public

30  corporation; or any other legal or commercial entity.

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  1         (13)  "Person acting as a parent" means a person, other

  2  than a parent, who:

  3         (a)  Has physical custody of the child or has had

  4  physical custody for a period of 6 consecutive months,

  5  including any temporary absence, within 1 year immediately

  6  before the commencement of a child custody proceeding; and

  7         (b)  Has been awarded legal custody by a court or

  8  claims a right to legal custody under the law of this state.

  9         (14)  "Physical custody" means the physical care and

10  supervision of a child.

11         (15)  "State" means a state of the United States, the

12  District of Columbia, Puerto Rico, the United States Virgin

13  Islands, or any territory or insular possession subject to the

14  jurisdiction of the United States.

15         (16)  "Tribe" means an Indian tribe, or band, or

16  Alaskan Native village which is recognized by federal law or

17  formally acknowledged by a state.

18         (17)  "Warrant" means an order issued by a court

19  authorizing law enforcement officers to take physical custody

20  of a child.

21         Section 3.  Proceedings governed by other law.--This

22  act does not govern an adoption proceeding or a proceeding

23  pertaining to the authorization of emergency medical care for

24  a child.

25         Section 4.  Application to Indian tribes.--

26         (1)  A child custody proceeding that pertains to an

27  Indian child as defined in the Indian Child Welfare Act, 25

28  U.S.C. s. 1901 et seq., is not subject to this act to the

29  extent that it is governed by the Indian Child Welfare Act.

30

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  1         (2)  A court of this state shall treat a tribe as if it

  2  were a state of the United States for purposes of applying

  3  sections 1 through 22.

  4         (3)  A child custody determination made by a tribe

  5  under factual circumstances in substantial conformity with the

  6  jurisdictional standards of this act must be recognized and

  7  enforced under sections 23 through 39.

  8         Section 5.  International application of act.--

  9         (1)  A court of this state shall treat a foreign

10  country as if it were a state of the United States for

11  purposes of applying sections 1 through 22.

12         (2)  Except as otherwise provided in subsection (3), a

13  child custody determination made in a foreign country under

14  factual circumstances in substantial conformity with the

15  jurisdictional standards of this act must be recognized and

16  enforced under sections 23 through 39.

17         (3)  A court of this state need not apply this act if

18  the child custody law of a foreign country violates

19  fundamental principles of human rights.

20         Section 6.  Effect of child custody determination.--A

21  child custody determination made by a court of this state that

22  had jurisdiction under this act binds all persons who have

23  been served in accordance with the laws of this state or

24  notified in accordance with section 8 or who have submitted to

25  the jurisdiction of the court, and who have been given an

26  opportunity to be heard. As to those persons, the

27  determination is conclusive as to all decided issues of law

28  and fact except to the extent the determination is modified.

29         Section 7.  Priority.--If a question of existence or

30  exercise of jurisdiction under this act is raised in a child

31  custody proceeding, the question, upon request of a party,

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  1  must be given priority on the calendar and handled

  2  expeditiously.

  3         Section 8.  Notice to persons outside the state.--

  4         (1)  Notice required for the exercise of jurisdiction

  5  when a person is outside this state may be given in a manner

  6  prescribed by the laws of this state for the service of

  7  process or by the laws of the state in which the service is

  8  made. Notice must be given in a manner reasonably calculated

  9  to give actual notice, but may be by publication if other

10  means are not effective.

11         (2)  Proof of service may be made in the manner

12  prescribed by the law of this state or by the law of the state

13  in which the service is made.

14         (3)  Notice is not required for the exercise of

15  jurisdiction with respect to a person who submits to the

16  jurisdiction of the court.

17         Section 9.  Appearance and limited immunity.--

18         (1)  A party to a child custody proceeding, including a

19  modification proceeding, or a petitioner or respondent in a

20  proceeding to enforce or register a child custody

21  determination, is not subject to personal jurisdiction in this

22  state for another proceeding or purpose solely by reason of

23  having participated, or of having been physically present for

24  the purpose of participating, in the proceeding.

25         (2)  A person who is subject to personal jurisdiction

26  in this state on a basis other than physical presence is not

27  immune from service of process in this state. A party present

28  in this state who is subject to the jurisdiction of another

29  state is not immune from service of process allowable under

30  the laws of that state.

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  1         (3)  The immunity granted by subsection (1) does not

  2  extend to civil litigation based on acts unrelated to the

  3  participation in a proceeding under this act committed by an

  4  individual while present in this state.

  5         Section 10.  Communication between courts.--

  6         (1)  A court of this state may communicate with a court

  7  in another state concerning a proceeding arising under this

  8  act.

  9         (2)  The court may allow the parties to participate in

10  the communication. If the parties are not able to participate

11  in the communication, they must be given the opportunity to

12  present facts and legal arguments before a decision on

13  jurisdiction is made.

14         (3)  Communication between courts on schedules,

15  calendars, court records, and similar matters may occur

16  without informing the parties. A record need not be made of

17  the communication.

18         (4)  Except as otherwise provided in subsection (3), a

19  record must be made of a communication under this section. The

20  parties must be informed promptly of the communication and

21  granted access to the record.

22         (5)  For the purposes of this section, "record" means

23  information that is inscribed on a tangible medium or that is

24  stored in an electronic or other medium and is retrievable in

25  perceivable form.

26         Section 11.  Taking testimony in another state.--

27         (1)  In addition to other procedures available to a

28  party, a party to a child custody proceeding may offer

29  testimony of witnesses who are located in another state,

30  including testimony of the parties and the child, by

31  deposition or other means allowable in this state for

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  1  testimony taken in another state. The court on its own motion

  2  may order that the testimony of a person be taken in another

  3  state and may prescribe the manner in which and the terms upon

  4  which the testimony is taken.

  5         (2)  A court of this state may permit an individual

  6  residing in another state to be deposed or to testify by

  7  telephone, audiovisual means, or other electronic means before

  8  a designated court or at another location in that state. A

  9  court of this state shall cooperate with courts of other

10  states in designating an appropriate location for the

11  deposition or testimony.

12         (3)  Documentary evidence transmitted from another

13  state to a court of this state by technological means that do

14  not produce an original writing may not be excluded from

15  evidence on an objection based on the means of transmission.

16         Section 12.  Cooperation between courts; preservation

17  of records.--

18         (1)  A court of this state may request the appropriate

19  court of another state to:

20         (a)  Hold an evidentiary hearing;

21         (b)  Order a person to produce or give evidence

22  pursuant to procedures of that state;

23         (c)  Order that an evaluation be made with respect to

24  the custody of a child involved in a pending proceeding;

25         (d)  Forward to the court of this state a certified

26  copy of the transcript of the record of the hearing, the

27  evidence otherwise presented, and any evaluation prepared in

28  compliance with the request; and

29         (e)  Order a party to a child custody proceeding or any

30  person having physical custody of the child to appear in the

31  proceeding with or without the child.

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  1         (2)  Upon request of a court of another state, a court

  2  of this state may hold a hearing or enter an order described

  3  in subsection (1).

  4         (3)  Travel and other necessary and reasonable expenses

  5  incurred under subsections (1) and (2) may be assessed against

  6  the parties according to the laws of this state.

  7         (4)  A court of this state shall preserve the

  8  pleadings, orders, decrees, records of hearings, evaluations,

  9  and other pertinent records with respect to a child custody

10  proceeding until the child attains 18 years of age. Upon

11  appropriate request by a court or law enforcement official of

12  another state, the court shall forward a certified copy of

13  these records.

14         Section 13.  Initial child custody jurisdiction.--

15         (1)  Except as otherwise provided in section 16, a

16  court of this state has jurisdiction to make an initial child

17  custody determination only if:

18         (a)  This state is the home state of the child on the

19  date of the commencement of the proceeding, or was the home

20  state of the child within 6 months before the commencement of

21  the proceeding and the child is absent from this state but a

22  parent or person acting as a parent continues to live in this

23  state;

24         (b)  A court of another state does not have

25  jurisdiction under paragraph (a), or a court of the home state

26  of the child has declined to exercise jurisdiction on the

27  ground that this state is the more appropriate forum under

28  section 19 or section 20, and:

29         1.  The child and the child's parents, or the child and

30  at least one parent or a person acting as a parent, have a

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  1  significant connection with this state other than mere

  2  physical presence; and

  3         2.  Substantial evidence is available in this state

  4  concerning the child's care, protection, training, and

  5  personal relationships;

  6         (c)  All courts having jurisdiction under paragraph (a)

  7  or paragraph (b) have declined to exercise jurisdiction on the

  8  ground that a court of this state is the more appropriate

  9  forum to determine the custody of the child under section 19

10  or section 20; or

11         (d)  No court of any other state would have

12  jurisdiction under the criteria specified in paragraph (a),

13  paragraph (b), or paragraph (c).

14         (2)  Subsection (1) is the exclusive jurisdictional

15  basis for making a child custody determination by a court of

16  this state.

17         (3)  Physical presence of, or personal jurisdiction

18  over, a party or a child is not necessary or sufficient to

19  make a child custody determination.

20         Section 14.  Exclusive, continuing jurisdiction.--

21         (1)  Except as otherwise provided in section 16, a

22  court of this state which has made a child custody

23  determination consistent with section 13 or section 15 has

24  exclusive, continuing jurisdiction over the determination

25  until:

26         (a)  A court of this state determines that the child,

27  the child's parents, and any person acting as a parent do not

28  have a significant connection with this state and that

29  substantial evidence is no longer available in this state

30  concerning the child's care, protection, training, and

31  personal relationships; or

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  1         (b)  A court of this state or a court of another state

  2  determines that the child, the child's parent, and any person

  3  acting as a parent do not presently reside in this state.

  4         (2)  A court of this state that has made a child

  5  custody determination and does not have exclusive, continuing

  6  jurisdiction under this section may modify that determination

  7  only if it has jurisdiction to make an initial determination

  8  under section 13.

  9         Section 15.  Jurisdiction to modify

10  determination.--Except as otherwise provided in section 16, a

11  court of this state may not modify a child custody

12  determination made by a court of another state unless a court

13  of this state has jurisdiction to make an initial

14  determination under section 13(1)(a) or (b) and:

15         (1)  The court of the other state determines it no

16  longer has exclusive, continuing jurisdiction under section 14

17  or that a court of this state would be a more convenient forum

18  under section 19; or

19         (2)  A court of this state or a court of the other

20  state determines that the child, the child's parents, and any

21  person acting as a parent do not presently reside in the other

22  state.

23         Section 16.  Temporary emergency jurisdiction.--

24         (1)  A court of this state has temporary emergency

25  jurisdiction if the child is present in this state and the

26  child has been abandoned or it is necessary in an emergency to

27  protect the child because the child, or a sibling or parent of

28  the child, is subjected to or threatened with mistreatment or

29  abuse.

30         (2)  If there is no previous child custody

31  determination that is entitled to be enforced under this act,

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  1  and a child custody proceeding has not been commenced in a

  2  court of a state having jurisdiction under sections 13 through

  3  15, a child custody determination made under this section

  4  remains in effect until an order is obtained from a court of a

  5  state having jurisdiction under sections 13 through 15. If a

  6  child custody proceeding has not been or is not commenced in a

  7  court of a state having jurisdiction under sections 13 through

  8  15, a child custody determination made under this section

  9  becomes a final determination, if it so provides and this

10  state becomes the home state of the child.

11         (3)  If there is a previous child custody determination

12  that is entitled to be enforced under this act, or a child

13  custody proceeding has been commenced in a court of a state

14  having jurisdiction under sections 13 through 15, any order

15  issued by a court of this state under this section must

16  specify in the order a period which the court considers

17  adequate to allow the person seeking an order to obtain an

18  order from the state having jurisdiction under sections 13

19  through 15. The order issued in this state remains in effect

20  until an order is obtained from the other state within the

21  period specified or the period expires.

22         (4)  A court of this state which has been asked to make

23  a child custody determination under this section, upon being

24  informed that a child custody proceeding has been commenced

25  in, or a child custody determination has been made by, a court

26  of a state having jurisdiction under sections 13 through 15,

27  shall immediately communicate with the other court. A court of

28  this state which is exercising jurisdiction pursuant to

29  sections 13 through 15, upon being informed that a child

30  custody proceeding has been commenced in, or a child custody

31  determination has been made by, a court of another state under

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  1  a statute similar to this section shall immediately

  2  communicate with the court of that state to resolve the

  3  emergency, protect the safety of the parties and the child,

  4  and determine a period for the duration of the temporary

  5  order.

  6         Section 17.  Notice; opportunity to be heard;

  7  joinder.--

  8         (1)  Before a child custody determination is made under

  9  this act, notice and an opportunity to be heard in accordance

10  with the standards of section 8 must be given to all persons

11  entitled to notice under the laws of this state as in child

12  custody proceedings between residents of this state, any

13  parent whose parental rights have not been previously

14  terminated, and any person having physical custody of the

15  child.

16         (2)  This act does not govern the enforceability of a

17  child custody determination made without notice or an

18  opportunity to be heard.

19         (3)  The obligation to join a party and the right to

20  intervene as a party in a child custody proceeding under this

21  act are governed by the laws of this state as in child custody

22  proceedings between residents of this state.

23         Section 18.  Simultaneous proceedings.--

24         (1)  Except as otherwise provided in section 16, a

25  court of this state may not exercise its jurisdiction under

26  sections 13 through 23 if, at the time of the commencement of

27  the proceeding, a proceeding concerning the custody of the

28  child had been commenced in a court of another state having

29  jurisdiction substantially in conformity with this act, unless

30  the proceeding has been terminated or is stayed by the court

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  1  of the other state because a court of this state is a more

  2  convenient forum under section 19.

  3         (2)  Except as otherwise provided in section 16, a

  4  court of this state, before hearing a child custody

  5  proceeding, shall examine the court documents and other

  6  information supplied by the parties pursuant to section 21. If

  7  the court determines that a child custody proceeding was

  8  previously commenced in a court in another state having

  9  jurisdiction substantially in accordance with this act, the

10  court of this state shall stay its proceeding and communicate

11  with the court of the other state. If the court of the state

12  having jurisdiction substantially in accordance with this act

13  does not determine that the court of this state is a more

14  appropriate forum, the court of this state shall dismiss the

15  proceeding.

16         (3)  In a proceeding to modify a child custody

17  determination, a court of this state shall determine whether a

18  proceeding to enforce the determination has been commenced in

19  another state. If a proceeding to enforce a child custody

20  determination has been commenced in another state, the court

21  may:

22         (a)  Stay the proceeding for modification pending the

23  entry of an order of a court of the other state enforcing,

24  staying, denying, or dismissing the proceeding for

25  enforcement;

26         (b)  Enjoin the parties from continuing with the

27  proceeding for enforcement; or

28         (c)  Proceed with the modification under conditions it

29  considers appropriate.

30         Section 19.  Inconvenient forum.--

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  1         (1)  A court of this state which has jurisdiction under

  2  this act to make a child custody determination may decline to

  3  exercise its jurisdiction at any time if it determines that it

  4  is an inconvenient forum under the circumstances and that a

  5  court of another state is a more appropriate forum. The issue

  6  of inconvenient forum may be raised upon motion of a party,

  7  the court's own motion, or request of another court.

  8         (2)  Before determining whether it is an inconvenient

  9  forum, a court of this state shall consider whether it is

10  appropriate for a court of another state to exercise

11  jurisdiction. For this purpose, the court shall allow the

12  parties to submit information and shall consider all relevant

13  factors, including:

14         (a)  Whether domestic violence has occurred and is

15  likely to continue in the future and which state could best

16  protect the parties and the child;

17         (b)  The length of time the child has resided outside

18  this state;

19         (c)  The distance between the court in this state and

20  the court in the state that would assume jurisdiction;

21         (d)  The relative financial circumstances of the

22  parties;

23         (e)  Any agreement of the parties as to which state

24  should assume jurisdiction;

25         (f)  The nature and location of the evidence required

26  to resolve the pending litigation, including testimony of the

27  child;

28         (g)  The ability of the court of each state to decide

29  the issue expeditiously and the procedures necessary to

30  present the evidence; and

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  1         (h)  The familiarity of the court of each state with

  2  the facts and issues in the pending litigation.

  3         (3)  If a court of this state determines that it is an

  4  inconvenient forum and that a court of another state is a more

  5  appropriate forum, it shall stay the proceedings upon

  6  condition that a child custody proceeding be promptly

  7  commenced in another designated state and may impose any other

  8  condition the court considers just and proper.

  9         (4)  A court of this state may decline to exercise its

10  jurisdiction under this act if a child custody determination

11  is incidental to an action for divorce or another proceeding

12  while still retaining jurisdiction over the divorce or other

13  proceeding.

14         Section 20.  Jurisdiction declined by reason of

15  conduct.--

16         (1)  Except as otherwise provided in section 16 or by

17  other law of this state, if a court of this state has

18  jurisdiction under this act because a person seeking to invoke

19  its jurisdiction has engaged in unjustifiable conduct, the

20  court shall decline to exercise its jurisdiction unless:

21         (a)  The parents and all persons acting as parents have

22  acquiesced in the exercise of jurisdiction;

23         (b)  A court of the state otherwise having jurisdiction

24  under sections 13 through 15 determines that this state is a

25  more appropriate forum under section 19; or

26         (c)  No court of any other state would have

27  jurisdiction under the criteria specified in sections 13

28  through 15.

29         (2)  If a court of this state declines to exercise its

30  jurisdiction pursuant to subsection (1), it may fashion an

31  appropriate remedy to ensure the safety of the child and

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  1  prevent a repetition of the unjustifiable conduct, including

  2  staying the proceeding until a child custody proceeding is

  3  commenced in a court having jurisdiction under sections 13

  4  through 15.

  5         (3)  If a court dismisses a petition or stays a

  6  proceeding because it declines to exercise its jurisdiction

  7  pursuant to subsection (1), it shall assess against the party

  8  seeking to invoke its jurisdiction necessary and reasonable

  9  expenses, including costs, communication expenses, attorney's

10  fees, investigative fees, expenses for witnesses, travel

11  expenses, and child care during the course of the proceedings,

12  unless the party from whom fees are sought establishes that

13  the assessment would be clearly inappropriate. The court may

14  not assess fees, costs, or expenses against this state unless

15  authorized by law other than this act.

16         Section 21.  Information to be submitted to the

17  court.--

18         (1)  Subject to local law providing for the

19  confidentiality of procedures, addresses, and other

20  identifying information in a child custody proceeding, each

21  party, in its first pleading or in an attached affidavit,

22  shall give information, if reasonably ascertainable, under

23  oath as to the child's present address or whereabouts, the

24  places where the child has lived during the last 5 years, and

25  the names and present addresses of the persons with whom the

26  child has lived during that period. The pleading or affidavit

27  must state whether the party:

28         (a)  Has participated, as a party or witness or in any

29  other capacity, in any other proceeding concerning the custody

30  of or visitation with the child and, if so, identify the

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  1  court, the case number, and the date of the child custody

  2  determination, if any;

  3         (b)  Knows of any proceeding that could affect the

  4  current proceeding, including proceedings for enforcement and

  5  proceedings relating to domestic violence, protective orders,

  6  termination of parental rights, and adoptions and, if so,

  7  identify the court, the case number, and the nature of the

  8  proceeding; and

  9         (c)  Knows the names and addresses of any person not a

10  party to the proceeding who has physical custody of the child

11  or claims rights of legal custody or physical custody of, or

12  visitation with, the child and, if so, the names and addresses

13  of those persons.

14         (2)  If the information required by subsection (1) is

15  not furnished, the court, upon motion of a party or its own

16  motion, may stay the proceeding until the information is

17  furnished.

18         (3)  If the declaration as to any of the items

19  described in paragraphs (1)(a)-(c) is in the affirmative, the

20  declarant shall give additional information under oath as

21  required by the court. The court may examine the parties under

22  oath as to details of the information furnished and other

23  matters pertinent to the court's jurisdiction and the

24  disposition of the case.

25         (4)  Each party has a continuing duty to inform the

26  court of any proceeding in this or any other state that could

27  affect the current proceeding.

28         Section 22.  Appearance of parties and child.--

29         (1)  In a child custody proceeding in this state, the

30  court may order a party to the proceeding who is in this state

31  to appear before the court in person with or without the

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  1  child. The court may order any person who is in this state and

  2  who has physical custody or control of the child to appear in

  3  person with the child.

  4         (2)  If a party to a child custody proceeding whose

  5  presence is desired by the court is outside this state, the

  6  court may order that a notice given pursuant to section 8

  7  include a statement directing the party to appear in person

  8  with or without the child and informing the party that failure

  9  to appear may result in a decision adverse to the party.

10         (3)  The court may enter any orders necessary to ensure

11  the safety of the child and of any person ordered to appear

12  under this section.

13         (4)  If a party to a child custody proceeding who is

14  outside this state is directed to appear under subsection (2)

15  or desires to appear in person before the court with or

16  without the child, the court may require another party to pay

17  reasonable and necessary travel and other expenses of the

18  party so appearing and of the child.

19         Section 23.  Definitions.--In sections 23 through 39:

20         (1)  "Petitioner" means a person who seeks enforcement

21  of an order for return of a child under the Hague Convention

22  on the Civil Aspects of International Child Abduction or

23  enforcement of a child custody determination.

24         (2)  "Respondent" means a person against whom a

25  proceeding has been commenced for enforcement of an order for

26  return of a child under the Hague Convention on the Civil

27  Aspects of International Child Abduction or enforcement of a

28  child custody determination.

29         Section 24.  Enforcement under the Hague

30  Convention.--Under this act, a court of this state may enforce

31  an order for the return of a child made under the Hague

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  1  Convention on the Civil Aspects of International Child

  2  Abduction as if it were a child custody determination.

  3         Section 25.  Duty to enforce.--

  4         (1)  A court of this state shall recognize and enforce

  5  a child custody determination of a court of another state if

  6  the latter court exercised jurisdiction in substantial

  7  conformity with this act or the determination was made under

  8  factual circumstances meeting the jurisdictional standards of

  9  this act and the determination has not been modified in

10  accordance with this act.

11         (2)  A court of this state may utilize any remedy

12  available under other law of this state to enforce a child

13  custody determination made by a court of another state. The

14  remedies provided by sections 23 through 39 are cumulative and

15  do not affect the availability of other remedies to enforce a

16  child custody determination.

17         Section 26.  Temporary visitation.--

18         (1)  A court of this state which does not have

19  jurisdiction to modify a child custody determination may issue

20  a temporary order enforcing:

21         (a)  A visitation schedule made by a court of another

22  state; or

23         (b)  The visitation provisions of a child custody

24  determination of another state that does not provide for a

25  specific visitation schedule.

26         (2)  If a court of this state makes an order under

27  paragraph (1)(b), it shall specify in the order a period that

28  it considers adequate to allow the petitioner to obtain an

29  order from a court having jurisdiction under the criteria

30  specified in sections 13 through 22. The order remains in

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  1  effect until an order is obtained from the other court or the

  2  period expires.

  3         Section 27.  Registration of child custody

  4  determination.--

  5         (1)  A child custody determination issued by a court of

  6  another state may be registered in this state, with or without

  7  a simultaneous request for enforcement, by sending to the

  8  appropriate court in this state:

  9         (a)  A letter or other document requesting

10  registration;

11         (b)  Two copies, including one certified copy, of the

12  determination sought to be registered, and a statement under

13  penalty of perjury that to the best of the knowledge and

14  belief of the person seeking registration the order has not

15  been modified; and

16         (c)  Except as otherwise provided in section 21, the

17  name and address of the person seeking registration and any

18  parent or person acting as a parent who has been awarded

19  custody or visitation in the child custody determination

20  sought to be registered.

21         (2)  On receipt of the documents required by subsection

22  (1), the registering court shall:

23         (a)  Cause the determination to be filed as a foreign

24  judgment, together with one copy of any accompanying documents

25  and information, regardless of their form; and

26         (b)  Serve notice upon the persons named pursuant to

27  paragraph (1)(c) and provide them with an opportunity to

28  contest the registration in accordance with this section.

29         (3)  The notice required by paragraph (2)(b) must state

30  that:

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  1         (a)  A registered determination is enforceable as of

  2  the date of the registration in the same manner as a

  3  determination issued by a court of this state;

  4         (b)  A hearing to contest the validity of the

  5  registered determination must be requested within 20 days

  6  after service of notice; and

  7         (c)  Failure to contest the registration will result in

  8  confirmation of the child custody determination and preclude

  9  further contest of that determination with respect to any

10  matter that could have been asserted.

11         (4)  A person seeking to contest the validity of a

12  registered order must request a hearing within 20 days after

13  service of the notice. At that hearing, the court shall

14  confirm the registered order unless the person contesting

15  registration establishes that:

16         (a)  The issuing court did not have jurisdiction under

17  sections 13 through 22;

18         (b)  The child custody determination sought to be

19  registered has been vacated, stayed, or modified by a court

20  having jurisdiction to do so under sections 13 through 22; or

21         (c)  The person contesting registration was entitled to

22  notice, but notice was not given in accordance with the

23  standards of section 8 in the proceedings before the court

24  that issued the order for which registration is sought.

25         (5)  If a timely request for a hearing to contest the

26  validity of the registration is not made, the registration is

27  confirmed as a matter of law and the person requesting

28  registration and all persons served must be notified of the

29  confirmation.

30         (6)  Confirmation of a registered order, whether by

31  operation of law or after notice and hearing, precludes

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  1  further contest of the order with respect to any matter which

  2  could have been asserted at the time of registration.

  3         Section 28.  Enforcement of registered determination.--

  4         (1)  A court of this state may grant any relief

  5  normally available under the laws of this state to enforce a

  6  registered child custody determination made by a court of

  7  another state.

  8         (2)  A court of this state shall recognize and enforce,

  9  but may not modify, except in accordance with sections 13

10  through 22, a registered child custody determination of

11  another state.

12         Section 29.  Simultaneous proceedings.--If a proceeding

13  for enforcement under sections 23 through 39 is commenced in a

14  court of this state and the court determines that a proceeding

15  to modify the determination is pending in a court of another

16  state having jurisdiction to modify the determination under

17  sections 13 through 22, the enforcing court shall immediately

18  communicate with the modifying court. The proceeding for

19  enforcement continues unless the enforcing court, after

20  consultation with the modifying court, stays or dismisses the

21  proceeding.

22         Section 30.  Expedited enforcement of child custody

23  determination.--

24         (1)  A petition under sections 23 through 39 must be

25  verified. Certified copies of all orders sought to be enforced

26  and of any order confirming registration must be attached to

27  the petition. A copy of a certified copy of an order may be

28  attached instead of the original.

29         (2)  A petition for enforcement of a child custody

30  determination must state:

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  1         (a)  Whether the court that issued the determination

  2  identified the jurisdictional basis it relied upon in

  3  exercising jurisdiction and, if so, what the basis was;

  4         (b)  Whether the determination for which enforcement is

  5  sought has been vacated, stayed, or modified by a court whose

  6  decision must be enforced under this act and, if so, identify

  7  the court, the case number, and the nature of the proceeding;

  8         (c)  Whether any proceeding has been commenced that

  9  could affect the current proceeding, including proceedings

10  relating to domestic violence, protective orders, termination

11  of parental rights, and adoptions and, if so, identify the

12  court, the case number, and the nature of the proceeding;

13         (d)  The present physical address of the child and the

14  respondent, if known;

15         (e)  Whether relief in addition to the immediate

16  physical custody of the child and attorney's fees is sought,

17  including a request for assistance from law enforcement

18  officers and, if so, the relief sought; and

19         (f)  If the child custody determination has been

20  registered and confirmed under section 27, the date and place

21  of registration.

22         (3)  Upon the filing of a petition, the court shall

23  issue an order directing the respondent to appear in person

24  with or without the child at a hearing and may enter any order

25  necessary to ensure the safety of the parties and the child.

26  The hearing must be held on the next judicial day after

27  service of the order unless that date is impossible. In that

28  event, the court shall hold the hearing on the first judicial

29  day possible. The court may extend the date of the hearing at

30  the request of the petitioner.

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  1         (4)  An order issued under subsection (3) must state

  2  the time and place of the hearing and advise the respondent

  3  that at the hearing the court will order that the petitioner

  4  may take immediate physical custody of the child and the

  5  payment of fees, costs, and expenses under section 34, and may

  6  schedule a hearing to determine whether further relief is

  7  appropriate, unless the respondent appears and establishes

  8  that:

  9         (a)  The child custody determination has not been

10  registered and confirmed under section 27 and that:

11         1.  The issuing court did not have jurisdiction under

12  sections 13 through 22;

13         2.  The child custody determination for which

14  enforcement is sought has been vacated, stayed, or modified by

15  a court of a state having jurisdiction to do so under sections

16  13 through 22; or

17         3.  The respondent was entitled to notice, but notice

18  was not given in accordance with the standards of section 8 in

19  the proceedings before the court that issued the order for

20  which enforcement is sought; or

21         (b)  The child custody determination for which

22  enforcement is sought was registered and confirmed under

23  section 27, but has been vacated, stayed, or modified by a

24  court of a state having jurisdiction to do so under sections

25  13 through 22.

26         Section 31.  Service of petition and order.--Except as

27  otherwise provided in section 33, the petition and order must

28  be served by any method authorized by the laws of this state

29  upon the respondent and any person who has physical custody of

30  the child.

31         Section 32.  Hearing and order.--

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  1         (1)  Unless the court enters a temporary emergency

  2  order pursuant to section 16, upon a finding that a petitioner

  3  is entitled to immediate physical custody of the child, the

  4  court shall order that the petitioner may take immediate

  5  physical custody of the child unless the respondent

  6  establishes that:

  7         (a)  The child custody determination has not been

  8  registered and confirmed under section 27 and that:

  9         1.  The issuing court did not have jurisdiction under

10  sections 13 through 22;

11         2.  The child custody determination for which

12  enforcement is sought has been vacated, stayed, or modified by

13  a court of a state having jurisdiction to do so under sections

14  13 through 22; or

15         3.  The respondent was entitled to notice, but notice

16  was not given in accordance with the standards of section 8 in

17  the proceedings before the court that issued the order for

18  which enforcement is sought; or

19         (b)  The child custody determination for which

20  enforcement is sought was registered and confirmed under

21  section 27, but has been vacated, stayed, or modified by a

22  court of a state having jurisdiction to do so under sections

23  13 through 22.

24         (2)  The court shall award the fees, costs, and

25  expenses authorized under section 34 and may grant additional

26  relief, including a request for the assistance of law

27  enforcement officers, and set a further hearing to determine

28  whether additional relief is appropriate.

29         (3)  If a party called to testify refuses to answer on

30  the ground that the testimony may be self-incriminating, the

31  court may draw an adverse inference from the refusal.

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  1         (4)  A privilege against disclosure of communications

  2  between spouses and a defense of immunity based on the

  3  relationship of husband and wife or parent and child may not

  4  be invoked in a proceeding under sections 23 through 39.

  5         Section 33.  Warrant to take physical custody of

  6  child.--

  7         (1)  Upon the filing of a petition seeking enforcement

  8  of a child custody determination, the petitioner may file a

  9  verified application for the issuance of a warrant to take

10  physical custody of the child if the child is likely to

11  imminently suffer serious physical harm or removal from this

12  state.

13         (2)  If the court, upon the testimony of the petitioner

14  or other witness, finds that the child is likely to imminently

15  suffer serious physical harm or removal from this state, it

16  may issue a warrant to take physical custody of the child. The

17  petition must be heard on the next judicial day after the

18  warrant is executed unless that date is impossible. In that

19  event, the court shall hold the hearing on the first judicial

20  day possible. The application for the warrant must include the

21  statements required by section 30(2).

22         (3)  A warrant to take physical custody of a child

23  must:

24         (a)  Recite the facts upon which a conclusion of

25  imminent serious physical harm or removal from the

26  jurisdiction is based;

27         (b)  Direct law enforcement officers to take physical

28  custody of the child immediately; and

29         (c)  Provide for the placement of the child pending

30  final relief.

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  1         (4)  The respondent must be served with the petition,

  2  warrant, and order immediately after the child is taken into

  3  physical custody.

  4         (5)  A warrant to take physical custody of a child is

  5  enforceable throughout this state. If the court finds on the

  6  basis of the testimony of the petitioner or other witness that

  7  a less intrusive remedy is not effective, it may authorize law

  8  enforcement officers to enter private property to take

  9  physical custody of the child. If required by exigent

10  circumstances of the case, the court may authorize law

11  enforcement officers to make a forcible entry at any hour.

12         (6)  The court may impose conditions upon placement of

13  a child to ensure the appearance of the child and the child's

14  custodian.

15         Section 34.  Costs, fees, and expenses.--

16         (1)  The court shall award the prevailing party,

17  including a state, necessary and reasonable expenses incurred

18  by or on behalf of the party, including costs, communication

19  expenses, attorney's fees, investigative fees, expenses for

20  witnesses, travel expenses, and child care during the course

21  of the proceedings, unless the party from whom fees or

22  expenses are sought establishes that the award would be

23  clearly inappropriate.

24         (2)  The court may not assess fees, costs, or expenses

25  against a state unless authorized by law other than this act.

26         Section 35.  Recognition and enforcement.--A court of

27  this state shall accord full faith and credit to an order

28  issued by another state and consistent with this act which

29  enforces a child custody determination by a court of another

30  state unless the order has been vacated, stayed, or modified

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  1  by a court having jurisdiction to do so under sections 13

  2  through 22.

  3         Section 36.  Appeals.--An appeal may be taken from a

  4  final order in a proceeding under sections 23 through 39 in

  5  accordance with expedited appellate procedures in other civil

  6  cases. Unless the court enters a temporary emergency order

  7  under section 16, the enforcing court may not stay an order

  8  enforcing a child custody determination pending appeal.

  9         Section 37.  Role of state attorney.--

10         (1)  In a case arising under this act or involving the

11  Hague Convention on the Civil Aspects of International Child

12  Abduction, the state attorney may take any lawful action,

13  including resort to a proceeding under sections 23 through 39

14  or any other available civil proceeding, to locate a child,

15  obtain the return of a child, or enforce a child custody

16  determination, if there is:

17         (a)  An existing child custody determination;

18         (b)  A request to do so from a court in a pending child

19  custody proceeding;

20         (c)  A reasonable belief that a criminal statute has

21  been violated; or

22         (d)  A reasonable belief that the child has been

23  wrongfully removed or retained in violation of the Hague

24  Convention on the Civil Aspects of International Child

25  Abduction.

26         (2)  A state attorney acting under this section acts on

27  behalf of the court and may not represent any party.

28         Section 38.  Role of law enforcement officers.--At the

29  request of a state attorney acting under section 37, a law

30  enforcement officer may take any lawful action reasonably

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  1  necessary to locate a child or a party and assist a state

  2  attorney with responsibilities under section 37.

  3         Section 39.  Costs and expenses.--If the respondent is

  4  not the prevailing party, the court may assess against the

  5  respondent all direct expenses and costs incurred by the state

  6  attorney and law enforcement officers under section 37 or

  7  section 38.

  8         Section 40.  Application and construction.--In applying

  9  and construing this act, consideration must be given to the

10  need to promote uniformity of the law with respect to its

11  subject matter among states that enact it.

12         Section 41.  Severability clause.--If any provision of

13  this act or its application to any person or circumstance is

14  held invalid, the invalidity does not affect other provisions

15  or applications of this act which can be given effect without

16  the invalid provision or application, and to this end the

17  provisions of this act are severable.

18         Section 42.  Transitional provision.--A motion or other

19  request for relief made in a child custody proceeding or to

20  enforce a child custody determination which was commenced

21  before the effective date of this act is governed by the law

22  in effect at the time the motion or other request was made.

23         Section 43.  Subsection (7) of section 39.502, Florida

24  Statutes, is amended to read:

25         39.502  Notice, process, and service.--

26         (7)  Service of the summons and service of pleadings,

27  papers, and notices subsequent to the summons on persons

28  outside this state must be made pursuant to section 8 of the

29  Uniform Child Custody Jurisdiction and Enforcement Act s.

30  61.1312.

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  1         Section 44.  Paragraph (b) of subsection (2) of section

  2  61.13, Florida Statutes, is amended to read:

  3         61.13  Custody and support of children; visitation

  4  rights; power of court in making orders.--

  5         (2)

  6         (b)1.  The court shall determine all matters relating

  7  to custody of each minor child of the parties in accordance

  8  with the best interests of the child and in accordance with

  9  the Uniform Child Custody Jurisdiction and Enforcement Act. It

10  is the public policy of this state to assure that each minor

11  child has frequent and continuing contact with both parents

12  after the parents separate or the marriage of the parties is

13  dissolved and to encourage parents to share the rights and

14  responsibilities, and joys, of childrearing. After considering

15  all relevant facts, the father of the child shall be given the

16  same consideration as the mother in determining the primary

17  residence of a child irrespective of the age or sex of the

18  child.

19         2.  The court shall order that the parental

20  responsibility for a minor child be shared by both parents

21  unless the court finds that shared parental responsibility

22  would be detrimental to the child. Evidence that a parent has

23  been convicted of a felony of the third degree or higher

24  involving domestic violence, as defined in s. 741.28 and

25  chapter 775, or meets the criteria of s. 39.806(1)(d), creates

26  a rebuttable presumption of detriment to the child. If the

27  presumption is not rebutted, shared parental responsibility,

28  including visitation, residence of the child, and decisions

29  made regarding the child, may not be granted to the convicted

30  parent. However, the convicted parent is not relieved of any

31  obligation to provide financial support. If the court

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  1  determines that shared parental responsibility would be

  2  detrimental to the child, it may order sole parental

  3  responsibility and make such arrangements for visitation as

  4  will best protect the child or abused spouse from further

  5  harm. Whether or not there is a conviction of any offense of

  6  domestic violence or child abuse or the existence of an

  7  injunction for protection against domestic violence, the court

  8  shall consider evidence of domestic violence or child abuse as

  9  evidence of detriment to the child.

10         a.  In ordering shared parental responsibility, the

11  court may consider the expressed desires of the parents and

12  may grant to one party the ultimate responsibility over

13  specific aspects of the child's welfare or may divide those

14  responsibilities between the parties based on the best

15  interests of the child. Areas of responsibility may include

16  primary residence, education, medical and dental care, and any

17  other responsibilities that the court finds unique to a

18  particular family.

19         b.  The court shall order "sole parental

20  responsibility, with or without visitation rights, to the

21  other parent when it is in the best interests of" the minor

22  child.

23         c.  The court may award the grandparents visitation

24  rights with a minor child if it is in the child's best

25  interest. Grandparents have legal standing to seek judicial

26  enforcement of such an award. This section does not require

27  that grandparents be made parties or given notice of

28  dissolution pleadings or proceedings, nor do grandparents have

29  legal standing as "contestants" as defined in s. 61.1306. A

30  court may not order that a child be kept within the state or

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  1  jurisdiction of the court solely for the purpose of permitting

  2  visitation by the grandparents.

  3         3.  Access to records and information pertaining to a

  4  minor child, including, but not limited to, medical, dental,

  5  and school records, may not be denied to a parent because the

  6  parent is not the child's primary residential parent.

  7         Section 45.  Paragraph (d) of subsection (3),

  8  subsection (4), and paragraph (a) of subsection (7) of section

  9  741.30, Florida Statutes, are amended to read:

10         741.30  Domestic violence; injunction; powers and

11  duties of court and clerk; petition; notice and hearing;

12  temporary injunction; issuance of injunction; statewide

13  verification system; enforcement.--

14         (3)

15         (d)  If the sworn petition seeks to determine issues of

16  custody or visitation with regard to the minor child or

17  children of the parties, the sworn petition shall be

18  accompanied by or shall incorporate the allegations required

19  by section 21 s. 61.132 of the Uniform Child Custody

20  Jurisdiction and Enforcement Act.

21         (4)  Upon the filing of the petition, the court shall

22  set a hearing to be held at the earliest possible time. The

23  respondent shall be personally served with a copy of the

24  petition, financial affidavit, uniform child custody

25  jurisdiction and enforcement act affidavit, if any, notice of

26  hearing, and temporary injunction, if any, prior to the

27  hearing.

28         (7)(a)1.  The clerk of the court shall furnish a copy

29  of the petition, financial affidavit, uniform child custody

30  jurisdiction and enforcement act affidavit, if any, notice of

31  hearing, and temporary injunction, if any, to the sheriff or a

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  1  law enforcement agency of the county where the respondent

  2  resides or can be found, who shall serve it upon the

  3  respondent as soon thereafter as possible on any day of the

  4  week and at any time of the day or night. The clerk of the

  5  court shall be responsible for furnishing to the sheriff such

  6  information on the respondent's physical description and

  7  location as is required by the department to comply with the

  8  verification procedures set forth in this section.

  9  Notwithstanding any other provision of law to the contrary,

10  the chief judge of each circuit, in consultation with the

11  appropriate sheriff, may authorize a law enforcement agency

12  within the jurisdiction to effect service. A law enforcement

13  agency serving injunctions pursuant to this section shall use

14  service and verification procedures consistent with those of

15  the sheriff.

16         2.  When an injunction is issued, if the petitioner

17  requests the assistance of a law enforcement agency, the court

18  may order that an officer from the appropriate law enforcement

19  agency accompany the petitioner and assist in placing the

20  petitioner in possession of the dwelling or residence, or

21  otherwise assist in the execution or service of the

22  injunction. A law enforcement officer shall accept a copy of

23  an injunction for protection against domestic violence,

24  certified by the clerk of the court, from the petitioner and

25  immediately serve it upon a respondent who has been located

26  but not yet served.

27         3.  All orders issued, changed, continued, extended, or

28  vacated subsequent to the original service of documents

29  enumerated under subparagraph 1., shall be certified by the

30  clerk of the court and delivered to the parties at the time of

31  the entry of the order.  The parties may acknowledge receipt

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  1  of such order in writing on the face of the original order.

  2  In the event a party fails or refuses to acknowledge the

  3  receipt of a certified copy of an order, the clerk shall note

  4  on the original order that service was effected.  If delivery

  5  at the hearing is not possible, the clerk shall mail certified

  6  copies of the order to the parties at the last known address

  7  of each party.  Service by mail is complete upon mailing.

  8  When an order is served pursuant to this subsection, the clerk

  9  shall prepare a written certification to be placed in the

10  court file specifying the time, date, and method of service

11  and shall notify the sheriff.

12

13  If the respondent has been served previously with the

14  temporary injunction and has failed to appear at the initial

15  hearing on the temporary injunction, any subsequent petition

16  for injunction seeking an extension of time may be served on

17  the respondent by the clerk of the court by certified mail in

18  lieu of personal service by a law enforcement officer.

19         Section 46.  Sections 61.1302, 61.1304, 61.1306,

20  61.1308, 61.131, 61.1312, 61.1314, 61.1316, 61.1318, 61.132,

21  61.1322, 61.1324, 61.1326, 61.1328, 61.133, 61.1332, 61.1334,

22  61.1336, 61.1338, 61.134, 61.1342, 61.1344, 61.1346, and

23  61.1348, Florida Statutes, are repealed.

24         Section 47.  This act shall take effect October 1,

25  2000.

26

27            *****************************************

28                          HOUSE SUMMARY

29
      Creates the "Uniform Child Custody Jurisdiction and
30    Enforcement Act," governing interstate child custody and
      enforcement proceedings. Repeals the existing "Uniform
31    Child Custody Jurisdiction Act."

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