A husband and wife, who marry in Brazil, agree the husband does not have paternity and is not the legal father of their daughter. But that does not stop them from fighting UCCJEA jurisdiction in Florida. What happens when the court disagrees with them that he’s not the Father? A married couple just found out the results in an interesting international child custody case.
The Girl from Ipanema
The Wife is a Brazilian citizen living in Rio de Janeiro not far from the famous beach. The Husband is a U.S. citizen, a commercial airline pilot, and resides in Florida. The parties met online in 2014. They later were married in Rio de Janeiro, Brazil in 2016.
The wife had a daughter born in Brazil in 2015, the year before they got married. Interestingly, while the wife acknowledged she was the biological mother, the parties stipulated that the husband was not the biological father.
However, the Husband added his last name to the child’s name on the child’s birth certificate in Brazil. Later, they went to the U.S. Consulate in Brazil, and had a Consular Report of Birth Abroad Certificate issued for the child using his citizenship and his last name for the child.
Next, they had issued a U.S. passport and a Brazilian passport for the child using his last name as the father as well. It was later found that the husband held himself out as the father of his daughter during the marriage. The parties owned one marital asset, a home in Naples, Florida.
In 2021, the Husband filed a petition for divorce in Florida seeking only the following relief: (1) a dissolution of marriage and (2) and equitable distribution of the home in Naples. The Wife filed an answer denying allegations but did not raise the issue of the child, custody, or child support.
During the case, the parties entered a partial marital settlement agreement resolving all of the financial issues, including equitable distribution of the home. However, nothing was agreed, or mentioned, about their daughter.
Instead, the parties filed a stipulation that the husband was not the father of the child. Additionally, the husband filed an objection before trial that the court lacked jurisdiction to hear child support and custody under the UCCJEA because Florida was not the home state of the child.
The family judge entered a amended final judgment finding that the husband was the legal father of the child, and reserved jurisdiction on child support.
The Husband filed a motion for reconsideration arguing that under the UCCJEA, a court in Florida has jurisdiction to make an initial child custody determination only if Florida is the home state of the child or was the home state of the child within 6 months before the commencement of the proceeding and the child is absent from this state but a parent continues to live in Florida. The court denied the motion for reconsideration and the husband appealed.
Florida UCCJEA
I have written about international child custody issues before. The UCCJEA is a uniform act drafted to avoid jurisdictional competition and conflict with other state courts in child custody matters; promote cooperation with other courts; ensure that a custody decree is rendered in the state which enjoys the superior position to decide what is in the best interest of the child; deter controversies and avoid re-litigation of custody issues; facilitate enforcement of custody decrees; and promote uniformity of the laws governing custody issues.
An important aspect of the UCCJEA is that it only covers child custody determinations. Under the UCCJEA, a “child custody determination” means a judgment, decree, or other order of a court providing for the legal custody, physical custody, residential care, or visitation with respect to a child. The term includes a permanent, temporary, initial, and modification order. The definition does not include an order relating to child support or other monetary obligation of an individual.
The UCCJEA deals with “child custody proceedings,” which are defined as proceedings in which legal custody, physical custody, residential care, or visitation with respect to a child is an issue. Child Custody proceedings do not include proceedings involving juvenile delinquency, contractual emancipation, or enforcement.
Although not part of the UCCJEA, under Florida law, the husband could have also faced additional challenges. For instance, if a mother of any child born out of wedlock and the reputed father intermarry, the child is deemed and held to be the child of the husband and wife, as though born within wedlock.
Boa Sorte
On appeal, the third district affirmed that the husband was the legal father of their daughter. The court noted that the UCCJEA was a jurisdictional act which controls custody disputes and only applies where custody is at issue.
The term custody includes a proceeding for divorce, separation, neglect, abuse, dependency, guardianship, paternity, termination of parental rights, and protection from domestic violence, in which the issue may appear.
But, a child custody determination does not include an order relating to child support or other monetary obligation of an individual. In this case, the appellate court found that the parties did not dispute custody of the minor child. As a result, the trial court had subject matter jurisdiction over the action.
The opinion is here.