Case No. 2D20-451
Jack Stone, pro se. No appearance for Appellee.
Jack Stone, pro se.
No appearance for Appellee.
Jack Stone challenges the circuit court's order that dismisses his Motion for Ex Parte Emergency Child Custody and all subsequent pleadings for lack of jurisdiction. The primary issue in this appeal is whether the Highlands County Circuit Court has subject matter jurisdiction under the Uniform Child Custody Jurisdiction Enforcement Act (UCCJEA), sections 61.501–.542, Florida Statutes (2019), to determine this international child custody dispute. Mr. Stone contends that before his wife, Miyuki Suzuki, took the parties' child to Japan without his consent, Florida was the child's home state, and therefore Florida law should apply. He claims that he was deprived of due process by the circuit court's denial of an evidentiary hearing so that he could be heard on this issue. We reverse and remand for Mr. Stone to have the opportunity to present his case for subject matter jurisdiction.
Mr. Stone, a U.S. citizen, alleged in his motion for emergency temporary custody that his wife, a Japanese national, took the parties' child, M.S., with her to Japan without Mr. Stone's consent. According to Mr. Stone, in November 2018 he was on a trip to Japan to renew his spousal visa when Ms. Suzuki boarded a plane in Orlando with the parties' son and fled the country on the day she anticipated her husband would return to Florida. Mr. Stone cancelled his return flight after his sister alerted him to his wife's plan to return to Japan. After struggling for a couple of months to locate his son, he regained physical custody of M.S., but he has been unable to return to the United States with the child because his wife destroyed the child's U.S. passport.
Mr. Stone has filed numerous motions and petitions in the Highlands County Circuit Court. He sought a return order under the Hague Convention, custody of M.S. under the UCCJEA, custody of a second child that was born after the wife returned to Japan, and a change of M.S.'s name. He also filed suit in the United States District Court, District of Columbia, to compel the Department of State to issue M.S. a new passport without Ms. Suzuki's consent. See 22 C.F.R. § 51.28 (2019) (requiring execution of a passport application by both parents unless a parent can provide documentary evidence or a court order showing that he or she has sole custody of the child or that the nonapplying parent consents to the issuance of the passport).
The Hague Convention on the Civil Aspects of International Child Abduction, Oct. 25, 1980, T.I.A.S. No. 11670, 1343 U.N.T.S. 89 (July 1, 1988), is an international treaty to which the United States and Japan are signatories. See De Carvalho v. Carvalho Pereira, No. 1D20-523, 308 So.3d 1078, 1081 (Fla. 1st DCA Nov. 16, 2020). The Hague Convention is implemented in the United States by the International Child Abduction Remedies Act (ICARA) at 22 U.S.C. §§ 9001 – 9011 (2018). The Convention's primary function is to provide a process through which a parent may seek the prompt return of a child who has been wrongfully removed to or retained in another country. See Abbott v. Abbott, 560 U.S. 1, 9, 130 S.Ct. 1983, 176 L.Ed.2d 789 (2010) ("The Convention's central operating feature is the return remedy.")
See Stone v. U.S. Embassy Tokyo, No. 19-3273 (RC), 2020 WL 6701078 (D.D.C. Nov. 12, 2020) (denying Stone's motions that challenged the administrative order denying his application for the minor child's passport); see also Stone v. U.S. Embassy Tokyo (Stone I), No. 19-3273 (RC), 2020 WL 4260711 (D.D.C. July 24, 2020) (denying motions for leave to amend his complaint to include a petition for a return order); Stone v. U.S. Embassy Tokyo (Stone II), No. 19-3273 (RC), 2020 WL 5653699 (D.D.C. Sept. 23, 2020) (denying motion for recusal); Stone v. U.S. Embassy Tokyo (Stone III), No. 19-3273 (RC), 2020 WL 5775196 (D.D.C. Sept. 28, 2020) (granting defendants' motion for leave to submit portions of the administrative record under seal).
The circuit court denied Mr. Stone's motion for temporary custody and various other pleadings because Mr. Stone could not establish that Florida was the child's "home state" under sections 61.503(7) and 61.514(1)(a). The court noted in its order that the child was born in Japan and was presently in Japan and that therefore, a Japanese court was the proper tribunal in which Mr. Stone must seek custody. In its order, the circuit court stated as follows:
The home state determination under the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) allows for Florida to exercise jurisdiction if, if
at any time within the six months preceding the filing of the petition, Florida qualified as the home state of the minor child. See Fla. Stat. § 61.503(7) ; see also § 61.514(1)(a). Petitioner filed a UCCJEA Affidavit demonstrating Florida does not qualify as the home state of the minor child. The child was born in Japan and is currently in Japan, and has been since at least January 2, 2019. Furthermore, Petitioner's various pleadings assert that another tribunal has accepted jurisdiction and awarded Petitioner physical custody of the minor child. Accordingly, this Court lacks jurisdiction over the matter.
Mr. Stone's second amended complaint acknowledges that his son was born in Japan and that the family lived there for the child's first four years. However, he explains that in 2018 the parties made the decision to move to the United States. In March 2018, after visiting family in Hawaii, Mr. Stone, his wife, and son came to Florida. He contends that he has significant connection with this state because he grew up in Florida, has family in this state, and had been residing in Florida for the eight months before his wife abducted the parties' child. On his UCCJEA affidavit he lists his residences as Miami from March 18, 2018, to October 9, 2018, and Sebring from October 9, 2018, to the date of filing, September 9, 2019. However, his pleadings show that the family has been in Japan since November of 2018. It is because of the child's long absence from the state that the circuit court declined to exercise jurisdiction.
Mr. Stone's request for a Return Order under the Hague Convention
First, we address Mr. Stone's request for an Order of Return under the Hague Convention. He argues that the circuit court erred in failing to address his return order request and in proceeding under chapter 61 of the Florida Statutes.
A return order under the Hague Convention requires that an abducted child be brought back to the child's country of habitual residence, and then it is left to the courts of that nation to determine matters involving the child's custody. See Wigley v. Hares, 82 So. 3d 932, 943 (Fla. 4th DCA 2011) (citing Cuellar v. Joyce, 596 F. 3d 505, 508 (9th Cir. 2010) ); see also 22 U.S.C. § 9001(b)(4) (2018) ("The Convention and this chapter empower courts in the United States to determine only rights under the Convention and not the merits of any underlying child custody claims."). Under the Convention, "a court in the abducted-to nation has jurisdiction to decide the merits of an abduction claim, but not the merits of the underlying custody dispute." Friedrich v. Friedrich, 78 F.3d 1060, 1063 (6th Cir. 1996) (emphasis added) (citations omitted). The Convention "is generally intended to restore the pre-abduction status quo and to deter parents from crossing borders in search of a more sympathetic court." Id. at 1064 (citations omitted).
Although the circuit court did not make written findings addressing Mr. Stone's request for a return order, we conclude that Mr. Stone's request was properly denied. Under 22 U.S.C. § 9003(b), a person seeking to initiate judicial proceedings under the Convention for the return of a child must file a petition "in the place where the child is located at the time the petition is filed." Mr. Stone recognizes that he was required to obtain a return order in Japan but explains that he has sought relief in this country because his efforts to obtain a return order from the authorities in Japan were unsuccessful.
We agree that "[p]ersons should not be permitted to obtain custody of children by virtue of their wrongful removal or retention." 22 U.S.C. § 9001(a)(2). However, as the federal court found, the terms of the Convention do not provide for jurisdiction in the United States because the child is presently in Japan. See Stone v. U.S. Embassy Tokyo, No. 19-3273 (RC), 2020 WL 4260711, *3 (D.D.C. July 24, 2020) (denying Mr. Stone's request to amend his complaint to add a request for a return order on the grounds that under ICARA a person seeking to initiate judicial proceedings under the Convention for the return of a child must file the petition " where the child is located at the time the petition is filed " (citations omitted)). The federal court "acknowledge[d] the apparent unfairness of the situation" but found that it was "powerless to remedy it." Id. at *4. Accordingly, the circuit court was correct in denying Mr. Stone's return order petition and properly required Mr. Stone to proceed with his request for custody by filing an affidavit under the UCCJEA.
The Uniform Child Custody Jurisdiction Enforcement Act
The UCCJEA was promulgated to help avoid jurisdictional conflict and to promote cooperation between courts in resolving custody issues. See § 61.502(1), (2). The objective of the Act is to eliminate the simultaneous exercise of jurisdiction over custody disputes by more than one state. Karam v. Karam, 6 So. 3d 87, 90 (Fla. 3d DCA 2009). For purposes of applying the UCCJEA to an international custody dispute, "[a] foreign country is treated as a state of the United States for jurisdiction purposes." Lande v. Lande, 2 So. 3d 378, 381 (Fla. 4th DCA 2008) (citing § 61.506(1)); Arjona v. Torres, 941 So. 2d 451, 454 (Fla. 3d DCA 2006) (same). "The UCCJEA gives jurisdictional priority to the child's home state." Hindle v. Fuith, 33 So. 3d 782, 784 (Fla. 5th DCA 2010) (citing Arjona, 941 So. 2d at 455 ). "[T]he issue of whether the Florida circuit court has subject matter jurisdiction under the UCCJEA involves a question of law and is subject to de novo review." N.W.T. v. L.H.D., 955 So. 2d 1236, 1238 (Fla. 2d DCA 2007).
Section 61.503(7) defines "home state" as "the state in which a child lived with a parent or a person acting as a parent for at least 6 consecutive months immediately before the commencement of a child custody proceeding." See M.A.C. v. M.D.H., 88 So. 3d 1050, 1054 (Fla. 2d DCA 2012) (noting that the "home state" determination under the UCCJEA allows for Florida to exercise jurisdiction if, at any time within the six months preceding the filing of the petition, Florida qualified as the home state).
In the present case, the circuit court found that it lacked jurisdiction under the UCCJEA because Florida was not the child's home state. We agree with the circuit court that Mr. Stone did not allege sufficient facts to establish that Florida was the child's home state under sections 61.503(7) and 61.514(1)(a). At the time Mr. Stone filed his custody proceeding in Florida on September 9, 2019, he and his family had been living in Japan for the preceding ten months. However, we note that the UCCJEA grants several exceptions to the home state jurisdictional requirement, such as when a court of another state does not have jurisdiction or has declined to exercise its jurisdiction. See § 61.514(1)(c), (d) ; see also, e.g., Hindle, 33 So. 3d at 785 (holding that under the UCCJEA the Florida court had subject matter jurisdiction to make an initial custody determination even though Florida was not the child's home state where the mother and the child had lived in several states in the six months prior to their arrival in Florida and the commencement of the paternity action and no other state had jurisdiction); Arjona, 941 So. 2d at 455 (noting that Florida could exercise jurisdiction based upon the child's connections with the state if the child's home state declined to exercise jurisdiction). Mr. Stone argues that the circuit court erred in not applying the emergency jurisdiction exception in section 61.517(1), which states,
A court of this state has temporary emergency jurisdiction if the child is present in this state and the child has been abandoned or it is necessary in an emergency to protect the child because the child, or a sibling or parent of the child, is subjected to or threatened with mistreatment or abuse.
The circuit court did not err in failing to apply this subsection. In order for section 61.517(1) to apply, the child must be present in the state where the petition is filed. Cf. McAbee v. McAbee, 259 So. 3d 134, 139 (Fla. 4th DCA 2018) (determining that the trial court had emergency jurisdiction in Florida, despite the fact that Virginia was the child's home state, because the child was physically present in Florida when the mother filed the emergency petition); In re NC, 294 P.3d 866, 874 (Wyo. 2013) ("[T]he only requirements for a state to exercise emergency jurisdiction pursuant to the UCCJEA are that the child be present in the state and that the child be subjected to or threatened with abuse.").
Mr. Stone also argues that there is no support for the circuit court's finding that Japan has accepted jurisdiction of the custody dispute and therefore, Japan, and not Florida, is the child's home state. The attachments to his motions reflect that Ms. Suzuki withdrew her petition for custody in the Japanese family court and that the petitions had been dismissed. He claims that the circuit court had a duty to communicate with the Japanese court to confirm the lack of any continuing custody proceedings in Japan.
We conclude that the circuit court prematurely denied Mr. Stone the opportunity to prove that Japan had declined to exercise its jurisdiction over the custody issue and that Florida was the more appropriate forum for either an initial custody determination or a modification of custody. See Douglas v. Johnson, 65 So. 3d 605, 607-08 (Fla. 2d DCA 2011) (reversing and remanding for a full evidentiary hearing where the mother was denied procedural due process by the trial court's failure to give her the opportunity to raise and develop the issue of subject matter jurisdiction). At a minimum, the court should have stayed the proceedings and communicated with the Japanese court to determine whether custody proceedings in Japan had been terminated. See § 61.519(1), (2); London v. London, 32 So. 3d 107, 110-11 (Fla. 2d DCA 2009) (reversing for further proceedings where the trial court never communicated with the foreign court as required by section 61.519).
Accordingly, we reverse and remand for further proceedings.
MORRIS and LABRIT, JJ., Concur.