IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
JANUARY TERM 2005
TODD M. BENSON,
KRISTINA SHOFFIT EVANS,
CASE NO. 4D05-982
Opinion filed April 18, 2005
Petition for writ of prohibition to the Circuit
Court for the Seventeenth Judicial Circuit,
Broward County; Renee Goldenberg, Judge;
L.T. Case No. FMCE 04-24004.
Jeanne C. Brady of Brady & Brady, P.A.,
Boca Raton, and Irene Annunziata, Fort
Lauderdale, for petitioner.
H.T. Maloney of Patterson & Maloney, Fort
Lauderdale, for respondent.
We grant the petition for writ of prohibition.
Under the provisions of section 61.514, Florida
Statutes (2004), the circuit court was without
jurisdiction to take this case. The Uniform Child
Custody Jurisdiction Act “applies to paternity
actions when custody is an issue.” Wilson v.
Zambito, 773 So. 2d 581, 582 (Fla. 4th DCA
2000). The child has resided in Texas for over
three years with petitioner, a “person acting as a
parent” within the meaning of section
61.503(13), Florida Statutes (2004), so there is
no jurisdiction under section 61.514(1)(a).
Based on the child’s residence, Texas has
jurisdiction. No order in the record reflects that
a Texas court “ha[s] declined to exercise
jurisdiction on the grounds that this state is the
more appropriate forum under s. 61.520 or s.
61.521”; also, the record does not reflect that the
mother has “a significant connection with this
state other than mere physical presence” and,
given the child’s long term residence in Texas,
there appears to be no evidence available in
Broward County “concerning the child’s care,
protection, training, and personal relationships.”
§ 61.514(1)(b) , (c). There have been no prior
Florida orders or judgments involving custody
of the minor child. Since the child left to go to
Texas in 2001, the mother has lived in New
York and California; the child has lived with the
father in Texas and has not maintained any
significant contacts with Florida.
The circuit court’s determination that Florida
is the child’s home state was made after a
general discussion of public policy, not with
reference to statutory authority.
61.514(1) is “the exclusive jurisdictional basis
for making a child custody determination by a
court of this state.” § 61.514(2); see also
Mainster v. Mainster, 466 So. 2d 1228, 1229
(Fla. 2d DCA 1985) (holding that Florida was
not home state for minor child removed without
parent’s permission to Virginia, because she had
been living there for over six months preceding
the father’s filing of emergency petition for
temporary custody). At the February 1, 2005
hearing it appears that the Texas court was
willing to let the Florida court have the case, if
the Florida court found jurisdiction. At a
November, 2004, telephone hearing, the Texas
court indicated that it believed Florida might
decline jurisdiction and was prepared to take
jurisdiction if Florida declined to do so. The
dismissal of the case in Texas appears to be
based on the decision of the Florida circuit court
to take over jurisdiction. In an April 13, 2005
order by the Texas court, there is no explicit
ruling that because of the father’s “unjustifiable
conduct,” the Texas court is declining
jurisdiction. The circuit court appears to have
accepted jurisdiction, at least in part, because of
the father’s wrongful conduct.
“unjustifiable conduct” does not vest jurisdiction
in a court; “unjustifiable conduct” by a person
seeking to invoke jurisdiction is a basis f a
court declining jurisdiction. See § 61.521(1).
Petition for writ of prohibition granted.
WARNER, GROSS and HAZOURI, JJ., concur.
NOT FINAL UNTIL DISPOSITION OF ANY
TIMELY FILED MOTION FOR REHEARING.